Volume 151 — Georgia Reports

<p>The evidence for the plaintiff authorized the jury to find that the defendants were wilful trespassers in cutting and carrying away the timber from the land of the plaintiff’s ward. The court therefore erred in refusing to charge that the measure of the plaintiff’s damage was the value of the lixmber without deduction for expense and labor of the defendants in manufacturing the timber into lumber-, and in charging that the plaintiff was entitled to recover only the “ stumpage value ” of the timber made into lumber.</p>

<p>Petition for injunction. Before Judge Hardeman. Candler superior court. February 23, 1920.</p>

<p>Complaint for land. Before Judge'- Wright. Floyd superior court. January 29, 1920.</p>

<p>Certiorari; from Court of Appeals. 24 Ga. App. 621.</p>

<p>Partition of land. Before Judge Kent. Laurens superior court. January 30, 1920.</p>

Injunction. Before Judge Park. Putnam superior court. March 27, 1920.

<p>Petition for injunction. Before Judge Park. Putnam superior court. February 7, 1920.</p>

<p>Receivership. Before Judge Irwin. Haralson superior court. March 13, 1920.</p> <p>R. F. Pace executed to Blackman a bond for title, covering described real estate in Haralson Count}', dated April 14, 1919, and recorded April 22, 1919. It recited the execution by Blackman of two promissory notes for $1000 each, payable to Pace “ on or before" December 1, 1919 and December 1, 1920. On November 24, 1919, there was recorded in the office of the clerk of Haralson superior court a deed dated September 14, 1917, made by R. F. Pace, in consideration of natural love and affection and $1, conveying the same property to Lizzie Pace, J. C. Pace, Alice Pace, Myrtle Pace, Lidia Pace, and Zelma Pace. Blackman filed a petition against R. F. Pace and the persons named as grantees in the deed just mentioned, alleging that Lizzie Pace is the wife of R. F. Pace, the other defendants being their children, J. C. Pace being an adult and the others being minors; that Lizzie and J. C. Pace knew of the negotiations for the sale of the property to him by R. F. Pace and made no objection thereto, and he was not informed by them that R. F. Pace did not have title; that said deed was a forgery, was not delivered until after petitioner’s rights under the bond for title were acquired, was a scheme to avoid conveyance in accordance with the provisions of the bond, and constituted a cloud upon his title; that at the time of the execution of the bond for title it was understood that possession would be delivered to him on December 1, 1919; that on that date he tendered to R. F. Pace his check for $2000, but Pace refused to accept a check, and later during the day he procured $2000 in currency and made an effort to pay the same to Pace, but was unable to locate him for that purpose; that two days later petitioner’s attorney asked Pace if it was necessary to get the currency to make the payment to him, and was told by Pace that the money would not be accepted; that plaintiff is ready at all times to pay the money and receive a deed to the land; that demand for possession of the land has been made and refused; that the land is worth $500 per year for farming purposes; that the defendants, except Alice Pace, are residing on the land, and if allowed to cultivate it the rents will be a loss to petitioner; that defendants have no other property except about $1200 worth 'of personal property, and are, as to petitioner’s rights, insolvent. The prayers are, that E. F. Pace be required to accept the purchase-money and execute to petitioner a deed as provided in the bond for title; (2) that the deed executed by Pace to Lizzie Pace et al. be canceled; (3) for judgment against all the defendants for recovery of the land; (4)' that a receiver be appointed to take charge of and rent the land and to collect and preserve the rents; (5) for general relief. The defendants filed an answer admitting the execution of the bond for title, but setting up that at the time of its execution E. F. Pace was mentally incapable of making a binding contract, and that this fact was known to petitioner, and denying all other material averments of the petition. The evidence introduced by plaintiff tended to show that E. F. Pace had had money on deposit with a bank, but it had been withdrawn; that he had an automobile, a pair of mules, and other personal property; and that the purchase-money had not been paid. The defendants offered evidence to the effect that they possessed property valued at $3500, exclusive of the land sued for.</p> <p>The court passed an order requiring the defendants to “make a good and sufficient bond in the sum .of $500.00 payable to plaintiff, on rents or profits, in the event he should recover rents and profits on final trial; and in default of such .bond by defendants within ten days after they have notice of this order, that Gr. B. Eichards, sheriff, be appointed receiver to take charge of property in dispute and rent same and hold rents subject to final judgment of court.”</p> <p>The defendants assigned error upon this judgment, because: (a) the requirement as to bond and the appointment of a receiver was unauthorized; (6) the pleadings and proof failed to show a legal tender of the purchase-money;- (c) the evidence showed that plaintiff had an adequate remedy at law; (d) there" is no proof of insolvency as required by law; (e) the case did not present a clear, and urgent cause for the appointment of a receiver, and the passing of the order was an abuse of discretion.</p>

Injunction. Before Judge Searcy. Pike superior court. March 20, 1920. S. M. Smith brought a petition against J. T. Crawford and his wife, Mrs. Delia Crawford, in which he alleged as follows: On December 29, 1919, J. T. Crawford as agent for his wife caused to be issued a warrant, upon affidavit duly made, to evict petitioner from possession of certain lands.

<p>Indictment for murder. Before Judge Thomas. Bibb superior court. May 15, 1920.</p>

<p>1. In an indictment under the Penal Code, § 329, which declares: “If any person, informing or prosecuting under pretense of any penal law, shall compound with the offender, or direct the suit or information to ba discontinued, unless it be by leave of the court where the same is pending, he shall be guilty of a misdemeanor,” it is not necessary to allege the essential elements of the pretended offense.</p> <p>2. Evidence that the defendant caused one to be arrested by an officer under pretense of his having committed an offense, and compounded with such person for a consideration without .any proceeding in court, is insufficient to support a conviction under the statute quoted in the preceding note.</p>

<p>Petition for injunction, etc. Before Judge Hammond. Richmond superior court. January 9, 1920.</p>

<p>1. Erroneous admission of evidence will not require the grant of a new trial, where the judge in his instructions eliminated the issue in support of whieh the evidence was admitted, and where it appeared that the evidence was not prejudicial to the complaining party upon the remaining issues in the ease.</p> <p>2. Where in an action for land the defendant pleaded that he was in possession of the land bona fide under adverse claim of title, and prayed that he be allowed to set off the value of all permanent improvements placed thereon by himself, under the Civil Code (1910), § 5587, an instruction, “In general, good faith means without notice, as well as for a valuable consideration. It does not mean that the purchaser must have made every possible search to discover whether or not his title was bad,” is not subject to the criticism that it is contrary to the statute and strongly in favor of the defendant.</p> <p>3. Where in an action for land the defendant is bona fide in possession under adverse claim of title, the mesne profits are to be assessed upon the value of the property as it stood when the defendant’s title accrued, and the plaintiff is prohibited from recovering as mesne profits the increase of income resulting from the improvements made by the defendant in good faith.</p> <p>4. The evidence authorized the verdict, and no sufficient reason has been shown for granting a new trial.</p>

Equitable petition. Before Judge Hodges. Elbert superior court. .February 6, 1920. In 1884 James B. Turner conveyed to Mrs. Sarah E. Charping 120 acres of land in Elbert county, for life, with remainder to her children. The life-tenant, wishing to .obtain a loan upon the land, executed on October 10, 1914, and solely for that purpose, a deed to her eleven children, all of whom were of legal age.

<p>Petition for injunction. Before Judge Gower. Wilcox superior court. March 15, 1920.</p> <p>G. O. Shackelford, Thomas J. Shackelford, and F. C. Shackelford filed their petition against J. O. Fitzgerald, alleging as follows: They owned certain lots of land in Wilcox county, had a perfect title to the lands and to the timber growing thereon, and had been in quiet; peaceable, and adverse possession under written title for. a number of years. G. O. Shackelford, on October 15, 1919, executed a lease in the name of Shackelford Brothers to certain timber for turpentine purposes on certain described lands, the timber leased being “All of forty-two thousand boxes that E. M. Carnes had the lease on, starting at Sedge Grass Branch on the east side of Dixie Highway; land containing about 3300 acres, that the said Carnes had boxed and cupped; also place known as the Watson place containing about 1,000 acres that said Carnes had cupped- and boxed. This said 1,000 acres on the west side of Dixie Highway. All lands known as Shackelford Brothers. All lands in the eighth district, Wilcox County, Georgia.” J. O. Fitzgerald has entered upon said lands for the purpose of using the timber above described for. turpentine purposes, and after entering upon said lands, in disregard of the lease and outside of the lease,, he is cupping and boxing all of the timber on said lands; not only the 42,000 old boxes included in the lease, but other timber not boxed by Carnes & Company; and he is back-boxing the 42,000 trees boxed by Carnes & Company, and cupping and boxing all other timber; and this timber for the most part is very small timber, too small to be cupped and boxed, and the result will be to destroy the life of that timber. Fitzgerald has expressed his intention of working all of the timber for turpentine purposes, and not only the 42,000 old boxes which were leased to him; claiming the right to back-box these 42,000 trees and to work all of the timber for turpentine purposes. The lease to him covered no timber except the 42,000 old boxes, and he has no right under this lease to back-box this timber or to work the other timber for turpentine purposes; and if he is allowed to continue cupping and boxing these small trees it will resrdt in irreparable damage to the plaintiffs, and these damages will be continuous from year to year, and they can not be readily or accurately computed. Fitzgerald is insolvent.</p> <p>Fitzgerald answered and claimed that he had the right to cup and box all of the timber on the land described in the lease, under the terms thereof, and that his lease not only covered the “ 42,000 old boxes ” but all timber on these lands for turpentine purposes. Upon presentation of the petition the judge granted a temporary restraining order restraining the defendant from working any of said timber “ except using and working the boxes cut by the said Carnes.” The case came on for a rehearing on March 6, 1920, when evidence by affidavits was submitted and oral testimony taken. Upon the hearing the plaintiffs’ attorney in open court offered to give bond in accordance with section 5504 of the Civil Code; but the court refused, to allow this bond to be given, and proceeded with ■the hearing. After evidence and argument of counsel, the court took the case under advisement, and subsequently passed an order dissolving the injunction previously granted, “upon defendant giving bond as he offers to do in his pleadings, payable to'the plaintiff.” To this judgment the plaintiffs excepted.</p>

Equitable petition. Before Judge Hammond. Richmond superior court. February 28, 1920. The defendant in error brought suit against H. K. Nash on a series of notes, each for $6.56 principal, with interest from maturity at 8 per cent., secured by deed to 2.03 acres of land, which deed contained a power of sale.

<p>Complaint for land. Before Judge Hammond. Richmond superior court. April 30, 1930.</p>

<p>Equitable petition. Before Judge Terrell. Heard superior court. March 33, 1930.</p>

<p>Action for specific performance. Before Judge Thomas. Colquitt superior court. April 15, 1920.</p>

Equitable petition. Before Judge Terrell. Troup superior court. June 8, 1920. The defendants in error, twelve or more in number, filed suits in the city court óf La Grange, Georgia, and in the justice’s court of the 701st district G. M., of Troup County, Georgia, against W. D. Hines (since succeeded by John Martin Payne) as director-general of the Railroad Administration of the United States, operating the Atlanta and West Point Railroad and the Western Railway of Alabama.

<p>Equitable petition. Before Judge Park. Hancock superior court. May 28, 1920. See 149 Ga. 363.</p>

<p>Certiorari; from Court of Appeals. 24 Ga. App. 499.</p>

<p>Complaint for land. Before Judge Tarver. Gordon superior court. December 11, 1919.</p>

<p>Intervention. Before Judge Eve. Turner superior, court. November 8, 1919.</p> <p>The plaintiff in error was appointed receiver of the affairs and assets of the insolvent Bank of Sycamore. The defendant in error intervened in the cause, alleging that the insolvent bank was indebted to it upon a note for $1660 principal, besides interest, etc., executed by “Brown & Kinnett by W. J. Kinnett,” payable to the order of said bank, and by it transferred and assigned by indorsement to intervenor, a copy of which note was exhibited; that it was acquired by intervenor by purchase for -a valuable consideration before maturity; and that it was past due and unpaid. By amendment these allegations were stricken, and the following averments were substituted: At the time of the appointment of the receiver the .insolvent bank was indebted to intervenor in the sum named; for that, before the date of the note for $1660, intervenor advanced $2500 on a note of Brown & Kinnett, payable “to the order of ourselves,” and guaranteed by said bank, which advancement was made on the faith of the guaranty, and would not have been made unless said bank had guaranteed the payment of the note.' It was agreed and understood at the time by the parties that the fund was to- be deposited to the credit of said bank, that it was to be the property of that bank, and that said bank was the real borrower of the $2500. Afterward said bank paid $1000 on the note, and a note for $1660 was given in renewal, signed by Brown & Kinnett, payable to said bank, and by it indorsed (the note sued on). The entire sum so advanced and deposited was used by said bank in tbe regular course of business. It was deposited to the credit of the Bank of Sycamore in the American Bank and Trust Company in Albany, Ga., the amount deposited being $2268.90, which was withdrawn by checks (specifying dates and,amounts) signed “Bank of Sycamore, L. J. Brown, Cashier.” The sum of $1660, with interest, is due and unpaid, and is a part of the original indebtedness represented by the advancement of $2500 which was received by said bank, which now refuses to pay the note for $1660, denying the authority of its officer to guarantee the original loan or the renewal. Therefore in equity and good conscience it is bound to refund to intervenor the sum it illegally retains.</p> <p>The receiver demurred to the intervention as amended, on the grounds: that it set forth no legal or equitable cause of action; that it sought to change the alleged right of action from one on an express contract to one on an implied contract; and that it sought to set up a new, separate, and independent cause of action at variance with that originally declared on. Exception was taken to the overruling of this demurrer; and to a judgment in favor of the intervenor for $1268.90, with interest from date of filing intervention, it being contended that the judgment was contrary to law and evidence and without evidence to support it; and that the intervenoFs pleading, in form and substance and legal effect, did not authorize a judgment as for money had and' received by the Bank of Sycamore for the benefit and use of the intervenor.</p> <p>The case was tried by the judge without a jury, on all issues, and upon a statement of agreed facts with testimony given by Edwin Sterne. From this agreement and testimony it appears, that the firm of Brown & Kinnett was composed of L. J. Brown, the cashier, and W. J. Kinnett, a director, of the Bank of Sycamore. A. L. Sterne, cashier of the American Trust and Banking Company of Albany, submitted to his brother Edwin Sterne, vice-president and cashier of the intervenor bank, a proposal to discount a note of Brown & Kinnett for $2500, due-at 6 months, with 8 per cent, interest, for the benefit of and to be guaranteed by the Bank of Sycamore. Edwin Sterne agreed for his bank to discount the paper if his brother would give a guaranty signed by an officer of the Bank of Sycamore who was not a member of the firm of Brown & Kinnett. Later A. L. Sterne brought in a note for $2600 principal, dated May 11 and due November 11, made by Brown & Kinnett, payable “to the order of ourselves,” and indorsed by the makers and by L. J. Brown, W. J. Kinnett, and A. L. Sterne, accompanied by a separate paper stating that “in consideration of $1 and other valuable considerations we hereby guarantee the prompt payment at maturity of ” the note just described, which guaranty was signed by D. D. Kinnett, assistant cashier of the Bank of Sycamore. The intervenor thereupon paid $2518.90 (the discount retained being $81.10) on the check of A. L. Sterne, payable to the order of the American Trust and Banking Company of Albany. A. L. Sterne retained $250 as a fee or commission for handling the transaction for Brown & Kinnett, and the remaining sum, $2268.90, was deposited in the last-named bank to the credit of the Bank of Sycamore, and was soon thereafter withdrawn by checks signed with its name and. that of L. J. Brown, cashier. In discounting the original note Edwin Sterne had no transaction or communication with any one other than A. L. Sterne, and relied on his statement, as representing the Bank of Sycamore, that the transaction was bona fide in every respect, and that these funds were for the benefit of that bank. When the paper fell due Edwin Sterne wrote to that bank; within two days a payment of $500 thereon was made by mail; and about a month later L. J. Brown made another payment of $500, and, acting for the Bank of Sycamore, arranged for the renewal note sued on, upon the execution and receipt of which renewal the intervenor surrendered the original note and the guaranty. No authority was ever given by the directors of the Bank of Sycamore to guarantee the payment of the original note discounted by intervenor; nor did they or a majority of them ever authorize a loan to Brown & Kinnett in the sum represented by the renewal note sued on. Neither of these notes appears on the discount registers of that bank or its bills receivable. Its books show that in the month following that when the original note was dated, a check for $3700 by Ashburn Bank “covered the sum withdrawn from American Trust & Banicing Co.,” on the date of which entry a note, of Brown & Kinnett for $3427.73 “ was retired,” as indicated by entry under “bills receivable.” They were indebted to the Bank of Sycamore on that date, in the sum last stated, on partnership paper, and as indorsers on notes discounted for them by said bank, in over $3000 additional sum. No entry on this bank’s books was ever made of one of the checks drawn on the American Trust and Banking Company, for $390. The capital of the Bank of Sycamore was $15,000.</p> <p>Among detailed statements of defenses it was contended, that the insolvent bank was not liable in law under the note sued on ; that the facts known or that should have been known to the intervenor when it extended the credit were such as to charge it with notice that the transactions were for the benefit of Brown & Kin-nett and not of the bank, which received no consideration for or in connection with the note and did not benefit by the discount of it; that the indorsement of it was made by a member of Brown & Kinnett for himself or the firm, and not in any official capacity for the bank; and that this was not the bank’s act and deed and was never ratified by it or by any person authorized to bind it.</p>

<p>1. A receiver has not the power to employ counsel without leave or sanction of the court which appointed him. Nevertheless, where a receiver employs counsel without specific order authorizing the employment, and such counsel performs services for the receiver during the term of the receivership, counsel fees are within the just allowance that any be made by the chancellor.</p> <p>2. As a general rule, equity does not sanction the employment by a receiver of the attorney of any of the parties in the suit, or one whose interest may be opposed to those of the parties; but the rule is subject to limitation and exception. It can not be invoked by a stranger; nor does it apply where the employment is made in good faith, and where the receiver is not acting adversely to any party to the cause, but for the common benefit of all.</p> <p>3. The court of chancery has power to allow a reasonable fee to the attorney of the complainant in a partition suit, to be paid out of the proceeds of the sale of the estate. The case of 1Veal v. Neal, 140 Ga. 734 (79 S. E. 849), was a statutory proceeding for the partition of land; and in such proceeding the general equitable doctrine can not be invoked in aid of a judgment awarding costs to the applicant or plaintiff, in the absence of statute.</p>

<p>Complaint for laud. Before Judge Summerall. Ware superior court. December 30, 1919.</p>

<p>Injunction. Before Judge Harrell. Decatur superior court. March 20, 1920.</p> <p>On November 9,1912, for the purpose of securing a debt, Grant Williams executed to the Bank of Donalsonville a deed conveying' described land. Thereafter Ed Dickenson & Company obtained judgment on open account against Williams, and the execution issued on the judgment was levied upon the land conveyed to the bank as security. While title to the land was thus held by the bank as security the land was sold at sheriff’s sale under the fi. fa. in favor of Dickenson & Co., and Dickenson and Sirmons became the purchasers at the sheriff’s sale but did not take possession. Thereafter Dickenson and Sirmons paid the debt of Williams to the bank and took a transfer of the notes held by the bank, which were past maturity. Dickenson and Sirmons advertised the land for sale under the power of sale contained in the deed to the bank'. Williams filed a petition setting up the foregoing facts; alleging . that the deed to the bank was infected with usury, and therefore was void; and seeking an injunction to prevent the sale or other disposition of the property, or interference by Dickenson and Sirmons with his possession. The judge issued a rule nisi and on the hearing granted an interlocutory injunction. The defendants excepted. Williams contends that the sheriff’s deed did not carry title, because at the time the levy was made title to the land was outstanding under the security deed to the bank, and he had no leviable interest; and that, because the debt secured by the deed was infected with usury, the security deed was void and the power of sale contained therein could not be exercised. The defendants contend that if the deed from Williams to the bank was infected with usury the title was not conveyed thereby, and that in consequence the sheriff’s deed to them was good as conveyance of title.</p>

Equitable petition. Before Judge Searcy. Monroe superior court. April 10, 1920.

<p>Petition for injunction. Before Judge Park. Morgan superior court. July 30, 1920.</p> <p>Morgan County, through its board of commissioners of roads and revenues, served upon Mrs. Ainslee a notice of its purpose to condemn a strip of land 30.12 feet wide across her property for a distance of 3625 feet, to be used for the construction of a public road. Mrs. Ainslee filed a petition, seeking to enjoin the county and the individuals constituting the board of commissioners from proceeding with the condemnation; alleging that it was the intention to use the property, condemnation of which was sought, for the purpose of changing the location of an existing road; that the change was unnecessary; that it would result in the destruction of a number of valuable shade-trees and injury to petitioner’s property for. residence purposes; that no offer of compensation had been made to petitioner; that the road could readily be so located that the damage to petitioner would not be so great, and she had offered to donate a sufficient amount of her land for that purpose; that no proper legal action had been taken by the commissioners looking to the construction of the road, and the entire proceeding was without authority of law; that if defendants were permitted to proceed the damage to her property would be irreparable; and that she had no adequate remedy at law.</p> <p>The defendants denied all the material allegations of the petition, and set upc that they had on numerous occasions endeavored to reach an agreement with the plaintiff as to the price to be paid her for the land, but were always informed that she would not sell any land to the county; that defendants had been willing in preliminary surveys for the road to make a detour in front of petitioner’s residence, in order to purchase from her the required land, but when they were positively informed that she would sell no land at all, the road was surveyed straight across her land; that the offer to donate was not made by petitioner until they had expended $1000 or other large sum in grading'the road on either side of petitioner’s property in accordance with the survey; that to change the location of the road as proposed across her land would result in the loss of this labor, and in the making of unnecessary curves and increasing the danger of travel. The plaintiff 'introduced evidence in support of her petition, and the defendants introduced evidence in support of their answer. At the interlocutory hearing-both parties agreed in open court that the commissioners had not complied with sections 640 et seq. of the Civil Code. The court refused to grant an injunction, holding that the county authorities were authorized to proceed under sections 5206 et seq. of the Civil Code. The plaintiff excepted.</p>

<p>Certiorari; from Court of Appeals. 24 Ga. App. 640.</p>

<p>Ejectment. Before Henry S. West, judge pro hac vice. Clarke superior court. January 24, 1920,</p>

<p>Certiorari; from Court of Appeals. 24: Ga. App. 707.</p>

<p>Questions certified by Court of Appeals (Case No. 10954).</p>

<p>Ejectment. Before Judge Hutcheson. Newton superior court. January 8, 1920.</p>

<p>Injunction. Before Judge Mathews. Crawford superior court. March 27, 1920.</p> <p>J. J. Boutwell, by next friend, brought an equitable petition against Ed. Averett, Mrs. Georgia Hamlin, Mrs. Lula Johnson, and Mrs. Leila Averett, alleging: that A. V. Averett, deceased, had given to petitioner a certain mule; that the defendants as heirs at law of A. V. Averett were threatening to take possession of-the mule, and had advertised the same for sale as a part of'the estate of A. V. Averett; that petitioner was just getting .réady to commence his crop, and if the mule should be taken away from him he would be unable to proceed, and his damages would be irreparable; that the defendants are insolvent;- and that he has no remedy at law. He prayed that the defendants be restrained by injunction from interfering with his ownership and possession of the muie. The answer filed by Mrs. A. V. Averett, who was the mother of the plaintiff and the widow of A. Y. Averett, admitted all the allegations of the petition. The answer of the other defendants denied all material allegations of the petition. The evidence introduced by plaintiff tended to support the allegations of the petition (except that the only evidence on the question of insolvency related to Ed. Averett). The evidence offered by the defendants was in contradiction of the allegations of the petition, but they did not offer any evidence on the question of their solvency. Upon the ’hearing the court granted an interlocutory injunction, and included in his order a requirement that “ the defendant Bus Hamlin ” (in whose possession the mule then was) deliver the same to Boutwell upon his making bond for the forthcoming of the mule and to answer any judgment which might be rendered for hire of the same upon final trial. Ed. Averett, Mrs. Hamlin, and Mrs. Johnson excepted, assigning error upon the judgment on the grounds that it is contrary to law and the evidence and the principles of equity, because the plaintiff has an adequate remedy at law; because the facts alleged in the petition do not entitle the plaintiff to the relief sought; because the evidence does not authorize injunction; and because the requirement as to delivery of the mule was directed to one not a party to the petition for injunction.</p> <p>The defendant in error moved to dismiss the writ of error, because Mrs. Leila Averett, a party to the petition for injunction and substantially interested in the outcome of the case, had not been served with the bill of exceptions, and had not acknowledged or waived service.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. April 8, 1920.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. April 15, 1920.</p>

<p>Equitable petition. Before Judge Bell. Fulton superior court. April 1, 1920.</p> <p>R. E. Church brought a petition against J. Harry Helmer, a resident of Fulton County, and Mrs. Lillian M. Church, who it was alleged resided without the State of Georgia, and whose place of residence was unknown to the plaintiff, praying that he recover certain described premises in Fulton County together with mesne profits; and that certain deeds recited in the petition be canceled as clouds upon the plaintiffs title; also praying for process. The process was dated April 10, 1918. On April 11, the sheriff made a return reciting that the defendant, Mrs. Lillian M. Church, was not to be found in Fulton County. On the same date Judge Bell passed an order that service be perfected on this defendant by publication. On May 29, 1919, Judge Pendleton made an order in which it was recited that service had not been perfected on the defendants; it was ordered that the case be made returnable to the September term, 1919, of the superior court, and that service on Mrs. Church be perfected by publication to the September term, 1919, as theretofore ordered on April 11, 1918, and that service be perfected on the other defendant, J. Harry Helmer, according to law, to the same term of court. Service was perfected on J. Harry Helmer personally, by the deputy sheriff, on June 9, 1919, and on the same date the deputy clerk of the court certified that he had that day mailed a copy of the “ Fulton County Daily Report,” containing a marked copy of the present suit, properly stamped and addressed to the defendant, Mrs. Lillian M. Church, at a named place in New York. On August 2, 1919, Judge Bell passed an order in which it was recited that service had been perfected on Mrs. Lillian M. Church, by publication to the September Term, 1919. On September 18, 1919, the defendants moved to dismiss the petition, for the reasons: (1) that the suit was filed April 10, 1918, and process issued returnable to the May term, 1918. Entry of non est inventus was made as to the defendant Mrs. Lillian M. Church on April 11, 1918, and an order for publication granted, which publication was never had, nor was service ever made on this defendant, although service was claimed to have been made by publication in June and July, 1919. (2) No prayer for amendment of process or new process was ever made, but process did issue on May 29, 1919, in the suit that was already lifeless, and the process was wholly unauthorized by law and void. After this long lapse of time the process could not be amended by the court, and service based upon process which did issue under the circumstances is a mere nullity and the case should be dismissed. Whereupon Judge Bell, on April 1, .1920, dismissed the petition on the ground that seven terms of the court had elapsed, and there was no entry of non est inventus as to the one defendant who was alleged to be a resident of Fulton County, and who had not been served; that the other defendant was not served by publication, though an order was taken at the first term for such service; and that the order of May 29, 1919, authorizing service was a nullity, the ease being lifeless, and the judge ordering the service had no jurisdiction. To this order the plaintiff excepted.</p>

<p>1. Even if, in order to invest an imbecile with, title to land it may not be absolutely essential that there should be in every instance a manual delivery to such imbecile, or some one else for him, of a voluntary conveyance in which he is named as grantee, yet no effect can be given to an instrument of that character which the maker thereof, after signing and acknowledging in the presence of witnesses, retained in his own custody, in the absence of satisfactory proof that it was his intention that such instrument should operate to immediately convey to the imbecile the legal title to the premises therein described.</p> <p>2. Whether the facts constitute a delivery of a deed is a question of law; whether such facts exist is a question for the jury. Where the undisputed facts are insufficient to constitute a delivery of the deed, the court need not submit the issue of delivery to the jury.</p>

Equitable petition. Before Judge Ellis. Fulton superior court. January 31, 1920.

Petition for direction; intervention. Before Judge Hammond. Richmond superior court. January 24, 1920. The charter of the P. J. Berckmans Company, a private horticultural corporation, expired on March 13, 1918. Just before that date, at a called meeting, a majority of the stockholders, R. C., L. A., and P. J. A. Berckmans, each owning one fifth ($5000) of the capital stock, voted to discontinue the business and not to renew the charter.

<p>Injunction and receivership. Before Judge Ellis. Eulton superior court. January 31, 1920.</p>

<p>Equitable petition. Before Judge Eve. Worth superior court. January 23, 1920.</p>

<p>Certiorari; from Court of Appeals. 21 Ga. App. 732.</p> <p>The City of Atlanta brought suit against tbe National Surety Company, alleging a breach, on the part of the- defendant as guarantor, of a bond guaranteeing to tbe plaintiff tbe performance of certain obligations assumed by the Tennessee and Southeastern Coal Company under an alleged, contract between the coal company and tbe City of Atlanta, whereby tbe coal company promised to furnish and deliver to the city coal in certain car-load quantities at certain intervals during a period of 12 months. The alleged contract provided that the coal company would furnish the coal upon orders of a designated officer of the city, and contained a provision for the suspension of deliveries of the coal under the contract upon written notice from the city. The petition set out the bond and the alleged contract between the coal company and the city, which was executed by both parties; and alleged a failure upon the part of the coal company to carry out its promises and. undertakings therein contained, and that by reason of such failure the defendant breached the bond sued on, to the damage of the plaintiff. The petition contained two counts. The first count alleged the existence of a contract between the coal company and the city, by the terms of which the coal company was obligated to furnish coal to the city as above stated, and alleged a breach of the same by reason of the failure on the part of the coal company to perform, to the damage of the city, thereby constituting a breach of the bond. The second count alleged written communications from the city to the coal company from time to time throughout the year, ordering coal in small quantities, in accordance with the promises and obligations of the coal compan]’' as contained in the alleged contract, and the refusal and failure on the part of the coal company to furnish coal in compliance with such orders, to the damage of the city, thereby constituting a breach of the bond. The defendant demurred to the petition, upon the grounds that the alleged contract attached thereto was void for want of consideration; that it was lacking in mutuality, and fixed no binding obligation upon the city, and, there being no contract to be performed, there appeared no breach of the bond, which had been given to secure the performance of a contract which did not exist; and that the petition failed generally to set oAt a cause of action. The demurrer was overruled by the trial court, and this ruling was affirmed by the Court of Appeals. The case was then brought by writ of certiorari to this court.</p>

<p>Complaint for land. Before Judge Humphries. Hart superior court. January 30, 1920.</p> <p>The action was for recovery of 24.5 acres of land, later so amended as to be for 20.5 acres. The defenses were, in brief'. (1) prescriptive title by adverse possession for twenty years; (2) prescriptive title by adverse possession under written evidence of title for over seven years; (3) estoppel of the plaintiff by acquiescence in the boundary line contended for by the defendant, and by having pointed out this line as the true dividing line between her land and that of the defendant’s predecessor in title. After verdict for the plaintiff a motion for new trial was overruled, and the defendant excepted (this being the second appearance on writ of error: see 144 Got,. 147). The grounds of the motion, with the detailed contentions in connection therewith, can be fully understood only by examination of the voluminous record of pleadings and conflicting evidence; and it would not be beneficial to state them at length in this report. The twelfth ground, referred to in the first headnote, is that the court erred in charging the jury as follows: “There is another prescription claim in this case; and that is, it is claimed by the defendant that the line in question, the one claimed by him to be the true dividing line and that of the plaintiff has been acquiesced in as the true dividing line between the defendant and the plaintiff for more than seven years prior to the date of the filing of this suit. If you believe that Dr. Hailey [defendant] was in possession of the property claimed in this ease, under a claim of right and in good faith, and that his possession extended up to the line claimed by him to be the dividing line between the parties, that is, to that point that would include the property sued for in this case, and if you believe that that line was acquiesced in by the defendant and the plaintiff for a period of seven years prior to the date of the filing of this suit in the clerk’s office by the plaintiff, then and in that event he would be entitled to recover on that ground, to maintain successfully his defense; the law being, acqiiiescenee for seven years by acts or declarations of the adjoining landowners shall establish a dividing line. Of course on this proposition it is for you to determine as a matter of fact whether or not there has been a line acquiesced in by the parties for seven years prior to the filing of this suit; if so, the defendant can successfully defend on that ground; if not, he could not so defend.” The movant insists that this charge placed on him the burden of proving that he was in possession of the land sued for under a claim of right and in good faith, and that his possession extended up to the line claimed by him to be the dividing line between the parties, and that the line was acquiesced in by them for a period of seven years before the filing of the suit; and of showing also that the parties acquiesced in the line for seven years by acts and declarations, before the dividing line would be established. This charge placed on movant a greater burden than the law required him to carry in order to sustain his plea of acquiescence in the dividing line. It was error to charge that this plea of acquiescence was another prescriptive claim; this plea involved the question of boundary, not of title.</p>

<p>Complaint for land. Before Judge Sheppard. Tattnall superior court. February 3, 1920.</p> <p>M. H. Harris sued R. D. Jones, to recover possession of “ a certain tract of land in said county, bounded as follows: on the west and north by lands of R. D. Jones, on the east by lands of M. H. Harris, on the south by lands of E. Widincamp, containing about fifteen hundred (1500) square yards, same being, in part, a, part of the field that had been cultivated annually for the last forty years or more, by your petitioner, until about January, 1917, at which time your petitioner removed his worm rail-fence and stretched a wire fence inside of his field for a distance of about two hundred yards, attaching same to his lot fence where he keeps his stock and has so kept them for the last forty years. ” To the petition the plaintiff attached, as an abstract of title, a statement of the names of grantors and grantees in deeds, the last “conveying the land in dispute to plaintiff, ” with “ actual adverse possession of the land in dispute for over thirty-six years,” and “ a plat of the land in dispute, dated June 4th, 1880,” not exhibiting the plat. The defendant answered, admitting “possession of said land described in the petition, ” but denying the other allegations therein. “Defendant, further answering said petition, says that the land sued for in said petition is [?] the land of petitioner; that instead of petitioner being in possession of the land of plaintiff, said plaintiff is in the possession of one acre, more or less, of land of defendant described in about the manner as the lands described in the petition; the said disputed lands being differences in the true land line between the true lands of plaintiff and defendant. Where the land line of plaintiff is straight, the plaintiff has attempted to change the straight line go as to make it bend westward and include about two aeres, part of which said Harris now claims possession, and the other part being the part of land sued for in the petition. Defendant therefore files his cross-action and prays a judgment of the court for the recovery of that portion of said land lying westward of such north and south straight line of which said plaintiff is in the possession, defendant claiming title thereto in fee simple. Defendant claims title from E. Widincamp by warranty'deed covering said disputed lands. The plaintiff obtained possession of that portion of said land of which he is possessed under lease from said E. Widincamp, and has never surrendered such possession to him since said term of tenancy began. ”</p> <p>The verdict was “ for plaintiff. ” At the same term the defendant moved to set aside and vacate the verdict and-the judgment entered thereon, because: (1) the verdict is too indefinite and uncertain to be enforced; (2) the premises are not described in the plaintiff’s petition with sufficient definiteness as to locate them. The motion was overruled, and the defendant excepted.</p>

Equitable petition. Before Judge Bell. Eulton superior court. March 5, 1920. The Southland Estates Corporation (hereinafter referred to as the Southland Company), a Georgia corporation, undertook to develop a certain tract of land located near Atlanta for residential purposes. The tract was named “Westland Estates,” and was subdivided into approximately 1950 lots.

<p>After charging the jury that a witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case, it was error to add that it is for the. jury alone to say whether or not any “witness has been thus impeached; and that should the jury find that any witness has been thus impeached, they should discard his testimony from their consideration in its entirety, unless corroborated in whole or in part by other competent testimony. (By throe ¿TJ.)</p>

<p>1. The failure of the deputy clerk of a city court to notify the claimant’s attorney of record when the court would convene, and to send him a calendar and keep him informed as to when the claim ease would be tried, was no cause for injunctive restraint of a suit on the delivery bond given on interposing the claim.</p> <p>2. On the remaining issue raised by attack on the judgment rendered in the claim case, the evidence was conflicting and did not require a finding for the plaintiff; and the refusal of an injunction was no abuse of discretion.</p>

<p>Equitable petition. Before Judge Hodges. Elbert superior court. May 1, 1920.</p>

Petition for injunction. Before Judge Harrell. Mitchell superior court. May 15, 1920. The will of James Jones, dated March 9, 1894, provided in the first item as follows: “I give, bequeath, and devise to my son, Geo. Grover Jones, the following property, to wit: [describing, among other things, three lots of land, which form the subject-matter of this suit]. It is my will that all the above property belong and the title vest in my son, Geo.

Petition for injunction. Before Judge Meldrim. Chatham superior court. December 26, 1919.

<p>Complaint for land. Before Judge Tarver. Gordon superior court. May 24., 1920.</p>

<p>Equitable petition. Before Judge Smith.. Campbell superior court. August 26, 1919.</p>

<p>Complaint for land. Before Judge Lovett. Bulloch superior court. Jauuary 24, 1920.</p>

Equitable petition. Before Judge Sheppard. Liberty superior court. February 18, 1930.

<p>Appeal. Before Judge Parle. Wilkinson superior court. February 16, 1920.</p>

<p>Equitable petition. Before Judge Pendleton.' Eulton superior court. March 17, 1920.</p>

<p>Complaint for land. Before Judge Terrell. Heard superior court. February 23, 1920.</p>

<p>Injunction and receivership. Before Judge Pendleton. Fulton superior court. February 28, 1920.</p>

<p>Claim. Before Judge Walker. Taliaferro superior court. May 34, 1931.</p>

<p>Claim. Before Judge Greeu (of the city court of Athens). Clarke superior court. May 14, 1930.</p> <p>A fi. fa. for five hundred dollars principal, issued in favor of Nancy A. Jukes against J. T. Anderson as executor of T. C. Deloney, was levied upon described land as the property of the estate of T. C. Deloney, deceased. A claim to the property was interposed by Mrs. Bosa D. Hull, Bosa Hull Carson, and Leila May, Henry, and Deloney Hull. It appears that T. C. Deloney was the brother of Mrs. Bosa D. Hull; that under the will of their mother Deloney had a life-interest in the property levied upon, and that in the event he died without children Mrs. Hull would take a life-interest, with remainder to her children, who are the other persons named as claimants in this case. By amendment to the issue tendered the plaintiff in fi. fa. pleaded that the property had been acquired by Deloney with the belief that it would belong to him absolutely; that he had contributed from his individual funds a portion of the purchase-price and had expended considerable labor on the place before being informed that the claimants in this case would claim an interest in remainder; that subsequently Mrs. Hull had on divers occasions promised that she and her children would quitclaim to him their interest in the land, and upon the faith of this promise he had expended $3600 in improving the place; that in equity and good conscience the estate of T. C. Deloney should have such interest in the land as would represent the enhancement in the value due to the improvements placed thereon by him; that this amount should be ascertained and subjected to the plaintiff’s debt; that Mrs. Hull was estopped from claiming her life-interest in the land, because she had executed a contract which recited that it was made between the persons [naming them] who are claimants in this case and Mrs. Jukes, for the purpose of enabling T. C. Deloney to borrow money upon the security of said land, containing the following language: “The said parties of the first part [Mrs. Hull and the other claimants] each for himself or herself hereby releases to the said Nancy A. Jukes all his or her interest in the tract of land hereinafter described to the extent of the $1500.00 to be loaned by the said Nancy A. Jukes, and consent for the said T. C. Deloney to make title to the said Nancy A. Jukes to secure a note for $1500.00 principal, due twelve months after date, with interest at 8%, to the following land,” describing it. This instrument was sighed by Mrs. Eosa D. Hull alone. Deloney made to Mrs. Jukes a security deed conveying the land. Claimants allege that it was contemplated by plaintiff in fi. fa., at the time of the execution of the -paper relied upon, that all of the children of Mrs. Hull should sign the same; that she signed the same “ only with the agreement with the representative of the plaintiff in fi. fa., that if her children did not also sign, said instrument was to be void and of no effect;” that the amount of money loaned is different from that stated in the instrument relied on, and the loan was not made upon the faith of the signing of that paper; and that the signing of the paper by Mrs. Hull was an act of suretyship on her part, and the loaning without her knowledge or consent of an amount different from that stipulated in the writing constituted such a novation as would relieve her from liability. The evidence relating to the question whether Mrs. Hull executed the release upon the condition that it should be signed also by the remaindermen was as follows: Mrs. Hull testified, in substance, that J. T. Anderson presented the paper and urged her to sign it; that she stated to him, “ I will sign the paper, but it won’t do any good; I am afraid my children will not sign the paper;” that he requested her to sign it, and stated that he would-then see if he could procure the signature of the only one of her children present; that this child refused to sign; that he led her [Mrs. Hull] “ to believe it wouldn’t do any good without the children signing it;” that he told her “ it was no good.” In answer to the question, “Was anything said by Mrs. Hull at the time of signing that paper, if others didn’t sign, for you not to deliver that: it would not be binding on her ? ” Anderson replied, “ Why, of course that applied to her. Mr. Strickland wanted Mrs. Hull’s signature, and he wanted the children’s signatures; and when I acquainted her with the fact that we wanted to get Tom this money, she said she would write to the children, and I think probably she did, or any way told me she had written to the children, and there was one she stated to me that was unwilling to sign it.” He also testified, that Mrs. Hull did not tell him that he should not deliver the paper until it had been signed by all her children; that he stated to her that while they desired the signatures of her children, the attorney representing Mrs. Jukes had informed him “that it would be all right just for her to sign it,” and that the amount to be loaned would be reduced from fifteen hundred to five hundred dollars in consequence of the failure of the children to sign.</p> <p>The jury found the issue in favor of the claimant, Mrs. Hull. A motion for new trial, filed by the plaintiff in fi. fa., was overruled; and she excepted to that ruling, in the main bill of exceptions. In the cross-bill of exceptions error is assigned upon the • overruling of a demurrer to the amended issue tendered by plaintiff in fi. fa., upon the admission of certain evidence, and upon a portion of the charge of the court.</p>

Equitable petition. Before Judge Mathews. Bibb superior court. May 10, 1920.

<p>Action of trespass. Before Judge Lovett. Bulloch superior court. May 7, 1920.</p>

<p>1. It was error for the court to admit and to refuse to rule out on timely motion of the defendant, based upon the ground that there was no appropriate pleading upon which to base the same, evidence by C. S. Wilkes, a witness for the plaintiff, that “ at the time I made the deed to my mother I was a minor;. there was no consideration for same; it was made because I wanted to borrow some money, and I made the deed to my mother for her to borrow the money, and she never did use the deed to borrow the money, and I never got the money.” It necessarily follows that the court erred in giving to the jury instructions based upon the evidence thus admitted.</p> <p>2. It was error for the court to admit evidence by a witness for the plaintiff, to the effect that he saw Margaret Wilkes, one of the defendants, and that she agreed to and acquiesced in the sale of the land by G. S. Wilkes to the plaintiff, and that he had reported such agreement to the purchaser; the defendant having interposed timely objection based on the ground that such evidence was hearsay. For the same reason it was error to allow the plaintiff to testify in substance that O. S. Wilkes said that the sale was agreeable to Margaret Wilkes.</p> <p>3. The above rulings are controlling, and require a reversal of the judgment refusing a new trial. Other assignments of error not specifically mentioned are mere repetitions of the foregoing assignments, or are not of such character as are likely to occur again on another trial, and do not require special mention.</p> <p>4. Since the case is remanded for another hearing, we express no opinion upon the sufficiency of the evidence to support the verdict.</p>

<p>Equitable petition. Before Judge Humphries. Cobb superior court. January 30, 1920.</p>

Appeal. Before Judge Graham. Camden superior court. January 12, 1020. Mrs. Mary E. Casey, the widow of W. N. Casey, made application for a year’s support. The appraisers appointed made a return setting apart two hundred acres of described land and all of the household and kitchen furniture. Caveats were filed by Mrs. Casey, Mrs. Ella Lee Carlton, and Thomas E. Casey, executor of W. N. .Casey.

Construction of will. Before Judge Gower. Crisp superior court. March 27, 1920.

<p>Equitable petition. Before Judge Wright. Eloyd superior court. May 12, 1920.</p>

<p>Claim. Before Judge Eve. Worth superior court. March 19, 1920.</p>

<p>Equitable petition. Before Judge Graham. Treutlen superior court. April 14, 1920.</p>

<p>Ejectment. Before Judge .Jones. Babun superior court. May 8, 1920.</p>

<p>Ejectment. Before Judge Hardeman. Emanuel superior court. April 30, 1920.</p>

<p>Question certified by Court of Appeals (Case No. 10946).</p>

Equitable petition. Before Judge Mathews. Crawford superior court. June 4, 1920.

<p>Certiorari; from Court of Appeals. 24 Ga. App. 528.</p>

<p>A testator devised certain realty to Ms wife “ to have and to hold, for and during the term of her natural life, and, at her death, to vest in and' belong in fee simple to my issue then living, said issue taking per stirpes and not per capita; but if there be no such issue living at the death of my said wife, I devise the real estate above mentioned, together with all the remainder of my property,” to named persons. Included in the realty was a city lot on which there were buildings that were in need of repair and could not be rented advantageously. While the life-tenant was yet in life and while the only issue of the testator .was an adult son who was childless, the ■ widow instituted an equitable suit against the son and the other contingent remaindermen specified in the will. The object of the suit was to have a decree for sale of the property, including every possible interest of contingent remaindermen in esse or any possible future issue of the testator’s son, for reinvestment under the same limitations as provided in the will. Held, that the court had jurisdiction of the parties and subject-matter, and the decree was binding upon all parties to the suit and upon any unborn issue of the son of the testator who might be in life at the death of the life-tenant.</p>

<p>Libel for divorce. Before Judge Meldrim. Chatham superior court'. January 20, 1920.</p>

<p>Equitable petition. Before Judge Wright. Floyd superior court. March 12,1920.</p>

<p>Receivership, etc. Before Judge Irwin. Haralson superior court. March 13, 1920.</p> <p>On June 26, 1917, W. W. Heaton filed a complaint for land against Dug Puckett, alleging that he was the owner of a certain fifty acres of land in the southwest corner of land lot Ho. 10 in the 9th district and 5th section of Haralson County; and that the defendant was in possession of the land and refused to deliver possession or to pay plaintiff the annual profits, which he alleged to ba $200 per year. On September 29, 1917, the defendant filed his answer denying title in the plaintiff, setting up an equitable title in himself, averring that he had paid the plaintiff the purchase? price, and praying that the plaintiff be required to execute to him title to the land. On February 1, 1918, the plaintiff filed an ancillary petition to his action of complaint for land, alleging that the defendant was committing waste by cutting, hauling, and removing the timber on the land without the consent of plaintiff; that the defendant had already disposed of as much as $100 worth, and had received the rents and profits valued at $200 for the year 1917, and was threatening to make another crop on the land; that the defendant was insolvent and could not respond in damages for rents; and that the damages would be irreparable unless the defendant was restrained. The prayer was that the defendant be enjoined from cutting and removing the timber and wood; and that a receiver be appointed to take charge of the land and preserve the rents and profits pending.a recovery. On February 25, 1918, the defendant filed his answer to the ancillary petition, denying the material allegations, and setting up certain improvements which had been made by him and the paypient of taxes on the land. On January 30, 1918, the judge granted a restraining order, and required the defendant to show cause why an injunction should not be granted and a receiver be appointed. On October 30, 1918, Judge Bartlett 'revoked the restraining order, but no express ruling was made by the judge on the prayer of plaintiff for the appointment of a receiver. On February 14, 1920, the plaintiff filed against the defendant an additional ancillary petition in which the grounds were substantially the same as those filed February 1, 1918, except that the plaintiff alleged that since the date of commencing the suit the plaintiff had been unable to obtain a trial of the case, although he had made every possible effort to do so; that the case had been set for trial several different times, and each time it had been continued by the defendant, and he had refused to try the case; that he had been all the while in possession of the land, receiving the rents and profits and refusing to pay them to the plaintiff; that the defendant is absolutely insolvent and unable to respond to qny judgment that plaintiff may recover against him in the final trial of the case, if he ever succeeds in getting a trial; that he has a perfect title to the land, and that the defendant has no title and no right to the rents or profits. It is charged that to allow the defendant to retain possession of the land and to receive and use the rents and profits will amount to allowing him to have the same without paying anything therefor; and that as long as he is allowed to use the land without payment of rent or the giving of security for the same, he will continue by every dilatory practice possible to delay and to continue the ease as he has done in the past. It is prayed that a receiver be appointed to take charge of and rent the land, and collect and hold the rents ancl profits, until the final determination of the case. To this ancillary petition the defendant, on February 28, 1920, answered and averred that on the first ancillary petition the plaintiff alleged the same facts that are alleged in his present petition, and that on that petition the court made an order revoking the temporary restraining order and setting it aside. Wherefore the defendant averred that the former judgment, which was unexcepted to, was a final adjudication of the cause of action now sued upon. He also denied the material allegations of the ancillary petition. On the hearing the court adjudged that the pleas of res adjudicata be overruled on the ground that the present petition is an application for receiver, the former one being for injunction. It was further ordered that the defendant give to the plaintiff a bond in the sum of $500, conditioned to pay whatever sum may be recovered as mesne profits or rents on the trial of the main case; and that, in default of making bond in ten days, the sheriff of the county be appointed as receiver to take charge of the premises described, rent the same, and collect and hold the rents to be applied on any judgment that may be recovered as mesne profits. To this judgment the defendant excepted.</p>

<p>Ejectment. Before Judge Thomas. Brooks superior court. November 3, 1919.</p>

<p>Petition for mandamus. Before Judge Cobb. Clarke superior court. March 13, 1920.</p> <p>This is a proceeding for mandamus, brought on February 21, 1920, by Stephen C. Upson against the treasurer of Clarke County, E: I. Smith. The substance of the petition, as far as necessary to be stated, is to the following effect: Petitioner was solicitor of the city court of Athens for three consecutive terms, from September 12, 1907, to September 11, 1919. During his first term from September 12, 1907, to August 19, 1911, the date of the act placing the solicitor upon a salary instead of fees, the judge of the court duly allowed orders for the petitioner’s insolvent costs as solicitor, amounting to $2586.01, which were duly entered upon the minutes of the court. Petitioner on August 29, 1911, was the owner as transferee of all of the insolvent-cost orders allowed former solicitors, and former clerks and sheriffs, of the aggregate amount of $5159.03. Between September, 1911, and September, 1919, the clerk of the court collected the sum of $4452.99, as fines and forfeitures in criminal cases disposed of in the court, which he paid to E. I. Smith, who has since and prior to January 1, 1911, been treasurer of Clarke County, which sums represented the share of the solicitor of the city court of such fines and forfeitures; and the dates on which the various items constituting this sum were paid to the treasurer are stated. On February 21, 1920, petitioner made a written demand upon the defendant, as treasurer, for the payment of all the aforementioned insolvent-cost orders out of said fund paid by the clerk to defendant from fines and forfeitures as stated, which demand was refused by the defendant.</p> <p>The petition was demurred to on the ground that it set forth no cause of action, and that it appeared therefrom that the plaintiff’s orders or judgments were barred under the dormant-judgment act. The petition was dismissed under a general order sustaining the demurrers; and he excepted.</p>

<p>Petition for injunction. Before Judge Meldrim. Chatham superior court. March 3, 1930.</p>

<p>One of the items of the will under construction reads as follows: “ I desire that all my property both real and personal, with the exception of the place received from my mother (the Roebuck' Plaee in Hart County, Georgia), go to my husband, Charles W. Seidell, and my two sons, Stafford and Atherton Seidell; but No. 32 Carnegie Plaee not to be sold if possible during the lifetime of my husband, except by the united consent of my executors hereinafter named, and then only when in their judgment such sale shall be necessary, the rents thereof to be applied to paying oil the mortgage now held by Francisco and Company; paying for vault if necessary, paying the insurance premiums as they fall due on the life of my husband, with the exception of premium in Equitable Company of N. Y., and the support of my husband during his lifetime, at his death the rents to be equally divided between my children Stafford and Atherton Seidell. If my children Stafford and Atherton should die without children, then the part going to them be theirs only during their lifetime, but at their death go to my sister Zedora F. Norman her lifetime, and at her death be equally divided between her children. Provided, however, should the properly 32 Carnegie Place and the Fuller Place have been sold and Stafford and Atherton receive their one half eaeh in cash and in trust (as hereafter named), in that case it is to remain absolutely theirs, and does not revert as before mentioned to my sister Zedora F. Norman and her heirs.” The court construed this item of the will to mean that the estate devised in 32 Carnegie Place was an estate for life to the husband of the testatrix, subject to certain charges, and that “ after his death the property vested in the two sons named, subject to be divested if they should both die without children; then remainder over to the testatrix’s sister during her lifetime, and at her death to he equally divided between the children of the latter;” and further, that the provision in the will as to the proceeds of the property above referred to, in ease it should be sold, under which provision it would become the absolute property of the sons, could only be effective in the event of a sale, before the death of the sons, under a proper order of the court, for the purpose of paying some lawful charge which might arise and be within the contemplation of the will and not in conflict therewith; and further, that the executor is not entitled to an order or decree authorizing him to sell property for the purpose only of division or distribution between the two brothers. Held, that this was a proper construction of that item of the will, the 'intention of the testatrix as dedueible from all the provisions of the will being considered.</p>

<p>Certiorari; from Court of Appeals. 25 Ga. App. 138.</p> <p>On August 30, 1918, T. J. Williams and Y. D. McCollum instituted an action against C. E. Mitehem in tbe city court of Morgan, Calhoun County. The petition alleged that the defendant was in possession of " all of the crops of cotton, cottonseed, corn and folder, peanuts, grown during the year 1918 ” on a described plantation, "there being (30) thirty bales of cotton, mature, in the field ungathered, and one bale of cotton in seed, gathered, (4000) four thousand bushels of peanuts, in the field ungathered, but mature and ripe for. gathering, and (1500) fifteen hundred bushels of corn, and all fodder in stacks, mature, standing in field ungathered, . . and said property being of the aggregate value of ($10,000) ten thousand dollars.” That the said defendant refuses to deliver the above-described property to petitioners or to pay them the profits thereof, though petitioners have made such demand for same upon him. That the yearly value of said property is ($2,000.00) two thousand dollars. Wherefore petitioners pray that process may issue,” etc. The petition was subsequently amended by alleging that " Petitioners claim title to said property,” and by inserting in paragraph 2 of the petition the words "more or less” following the words "30 bales of cotton” and “4000 bushels of peanuts” and " 1500 bushels of corn,” as employed in that paragraph.</p> <p>On the day the petition was filed, one of the plaintiffs made an affidavit before the clerk of the court, in which, among other things, it was said that plaintiffs had instituted the suit above-mentioned to recover the property. The property was described in the same language as above set forth in the petition. After, describing the property it was said: "That deponent has• reason to apprehend that said property will be eloigned and moved away and will not be forthcoming to answer the judgment that may be made in said case, and said property is in the possession, custody of defendant, C. E. Mitchem, and that said firm does verily and bona fide claim said described property.” On September 2, 1918, the plaintiffs as principals and named persons as sureties executed a bond payable to the defendant, in the sum of twenty thousand dollars. The property was described in the bond by the same language as employed in the petition. It was stated in the bond, that the plaintiffs had instituted the suit above mentioned; that plaintiffs had "required bail ” of the defendant; that the sheriff had seized the property; that defendant had failed to give the bond " required by law in such eases provided;” and that plaintiffs desired to take the property in their possession. The condition of the bond was that should the plaintiffs "produce or cause to be produced and forthcoming the said property to answer, the judgment that may be entered in said case, and shall well and truly pay the condemnation-money, whatever it may be, then this bond to be void.”</p> <p>The defendant filed a general demurrer to the petition at the first term, which being overruled, he filed exceptions pendente lite, which were allowed. The defendant also filed an answer admitting possession of the property, but alleging that it was of the value of twenty thousand dollars, and that the title and right of possession of the property was in himself. The answer was amended at the trial term by alleging, among other things, the following in. substance: "that on or about” February 23, 1918, the defendant undertook to purchase from the plaintiffs the plantation on which the crops were produced, which was then in possession of " one C. A. Sauls ” under a contract of employment with the plaintiffs, the terms of which were unknown to defendant, but, being unable to agree on terms of “ an immediate purchase and sale,” plaintiffs as parties of the first part and defendant as party of the second part entered into a written contract, which, omitting formal parts, was as follows: "Witnesseth that the parties of the first part hereby agree to rent, for the year 1918, that certain farm of 1325 acres, more or less, in the 3d land district of Calhoun County, Georgia, known as the Daniel home place, to the party of the second part, on a share-crop basis, that is, the said second party is to farm and operate said place, raising the usual crops suitable to the land, one half of which is to be paid to the parties of the first part as rental of land, which the second partj' agrees to do. Parties of the first part agree to furnish the second party the farm implements necessary to make the crop, now on said place, also the live stock with which to work the farm, as now on said place, or such substitution of the same as may be agreed upon, and further agree to furnish feed for the stock. It is further agreed that the second party is to care for the stock and land to the very best advantage, watching the interest of the first parties at all times; and the parties of the first part further agree that they will sell and convey the said farm to the second party for a consideration of $36,000.00, provided said option of purchase is exercised on or before November 1, 1918; and in the event the second party should make purchase and pay said sum, then in that event only the first parties waive the payment to them of any rent or share of crop for the year 1918. It is also understood and agreed that second party is to make satisfactory agreement and trade with the party now on said farm, without cost or expense to first parties, before this contract is of any value and effect, as first parties are not to be responsible to second party hereto unless he first trades with the party now in possession for the occupancy of said farm for the year 1918.” After execution of the contract defendant made an arrangement with C. A. Sauls, whereby Sauls relinquished possession of the place to the defendant, and he immediately entered possession under the written contract with the plaintiffs. Defendant employed labor to put the lands in cultivation and to put in operation a “ 13-horse farm ” on the place, in the course of which he rented “ a 2-horse crop ” to one Sam Favors, and employed “ 5 share-croppers to work 6 plows,” and operated “ 5 plows with wages-hands.” Dnder the terms of the contract the plaintiffs did not retain title to the crops, and the “relation of landlord and cropper” did not exist between plaintiffs and defendant, and plaintiffs had no title or right of possession of the crops, but the same was in defendant and his only obligation as to rental was to pay the plaintiffs one half of the crops grown on the place for the year 1918, in the event that he did not exercise his option to purchase the place.</p> <p>At the trial the plaintiffs offered an amendment to the so-called replevy bond, so as to add the words “ more or less ” immediately following the words “ 30 bales of cotton ” and “ 4000 bushels of peanuts” and the words “1500 bushels of corn,” as contained in the original bond. The amendment was disallowed, and the plaintiffs excepted.</p> <p>The plaintiffs introduced testimony in substance as follows: Having recently purchased the land, they entered into the written contract with the defendant as copied above, furnished him all the things enumerated, and in addition furnished him guano with which to make the crop and money to meet the monthly payrolls to his hands for labor, amounting in all to about $1944.50. Defendant was to pay for half the guano. He employed all the labor that he used in operating the place. He had supervision of the entire place. Plaintiffs had nothing to do with the hiring or managing the labor “ nor with the planting of crops, what kind, when or how much.” Defendant did not pay for any of the supplies furnished him, and did not exercise the option to buy the place. Shortly before institution of the suit the labor on the place became demoralized, and the crops were about to go to waste. Plaintiffs demanded possession, which demand was refused. The defendant sold one bale of cotton for $191, and also carried some corn off the place and sold it. Such sale occurred prior to institution of the suit. Practically all other crops were in the field ungathered. The suit was instituted and bail required; and after the defendant’s refusal to give bail, plaintiffs made bond and took possession of the crops in order to market them. An agent employed by the plaintiffs harvested and marketed all the crops, keeping an accurate account of all the farm products and their market value. The values amounted to $5573.06. In addition to the parol evidence, the plaintiffs introduced the written contract and closed.</p> <p>At the conclusion of the evidence the judge granted a nonsuit and dismissed the case. Afterward and on the same day the juuge summarily entered judgment on the bond as follows: “ The plaintiffs having been nonsuited in the above-stated case, and said case dismissed by order of the court, and it appearing to the court that the property sued for in said ease was replevied by the plaintiffs (the defendant having failed to replevy the same) by said plaintiffs giving the within bond and taking possession of said property, and the defendant having elected to take a money judgment for the value of said property instead of a writ of restitution, and it appearing to the court that the plaintiffs have placed a value of $10,000.00 on said property by their affidavit to obtain bail, and counsel for defendant having moved the court to be allowed to enter up judgment on said bond against the principals thereon and their sureties for said sum of $10,000.00 and interest thereon: It is thereupon considered, ordered, and adjudged by the court that the defendant, C. E. Mitchem, do have and recover of and from Williams & Mc-Collum and T. J. Williams, as principals, and D. A. Smith, K. S. Worthy, G. A. Dozier, and J. M. Clements, as sureties, the sum of $10,000.00 principal, with interest thereon from September 2nd, 1918, at 7% per annum, and $-costs.” The plaintiffs excepted to the judgment of nonsuit, and to the judgment on the bond. In the bill of exceptions error was assigned on the exceptions pendente lite, relating to rejection of the amendment to the replevy bond, and on certain rulings as to the admissibility of evidence, which have not been set forth. The defendant filed a cross-bill of exceptions assigning error upon the judgment overruling the demurrer to the petition; also upon the judgment allowing the amendment to the petition; also upon the ruling of the court in permitting witnesses to testify as to the amount and value of the crops produced on , the place, over the objection that it was irrelevant. On review in the Court of Appeals the judgment of the trial court was affirmed on the main bill, and the cross-bill of exceptions was dismissed. The case is here for decision upon writ of certiorari to the judgment of the Court of Appeals, on the main bill of exceptions.</p>

Interpleader. Before Judge Mathews. Bibb superior court. April 28, 1920.

<p>Equitable petition. Before Judge Terrell. Troup superior court. June 21, 1920.</p> <p>Mary Jones, for herself and as next friend of her minor daughter, Bertha Jones, brought an equitable petition against Nancy Jones and LaGrange Savings Bank, alleging that Mike Jones, the husband of Mary and father of Bertha Jones, died on December 10, 1918, owing no debts, and leaving an estate of the value of two thousand dollars, consisting of cash on deposit in bank, wheat, corn, hogs, and other personal property; that he had deserted petitioners several years prior to his death, and they did not know of his death until some time after it occurred; that upon making enquiry they learned that Nancy Jones, fraudulently representing herself to be the widow of Mike J ones and the mother of two minor children by him, had procured from the court of ordinary of Troup County a judgment setting apart to her as year’s support $700 in cash and all of the household and kitchen furniture; that petitioners were ignorant, uneducated negroes residing outside of Troup County and in Carroll County, and they had no knowledge of the application for year’s support until after the judgment had been entered; that the $700 in cash was withdrawn by Nancy Jones from LaGrange National Bank and placed by her on deposit in LaGrange Savings Bank; that Nancy Jones was never married to Mike Jones; that any children born to them were not born in lawful wedlock, and neither she nor they were entitled to inherit from him; that Nancy Jones had taken possession of and converted to her own use the entire estate, and was wasting and dissipating the same; that she was insolvent and unable to respond in damages .upon any judgment which might be obtained against her; that there had been no administration on said estate and no one had the legal right to take charge of the same; that Nancy Jones had fraudulently procured possession of the proceeds of a policy of insurance upon the life of Mike Jones, made payable to Bertha Jones; that Nancy Jones is an executrix de son tort, and as such liable in double' the' value of the property which she has wrongfully taken possession of and converted to her own use. The prayers are, that Nancy Jones be enjoined from changing the status of the estate, from disposing of any of the property, and from withdrawing the money on deposit in LaGrange Savings Bank, and that the bank be enjoined from paying the same out; that a receiver be appointed to take charge of the estate and collect the assets; for judgment, and for special lien on the funds on deposit with LaGrange Savings Bank. The defendant demurred to the petition, on the grounds: (1) It does not entitle plaintiff to the relief prayed. (2) The cause of action, if any, vests only in the administrator of the deceased, and not the heirs at law. (3) The allegations of fraud are not sufficient to authorize a court of equity to set aside the judgment of the court of ordinary. (4) No cause of action is set forth. Exception is taken to the overruling of the demurrer.</p>

Certiorari; from Court of Appeals. 24 Ga. App. 664. Vickery’s Creek, known also as “ Big Creek,” is a tributary to the Chattahoochee River, and approaches the river at the town of Roswell from the north side. The Laurel Mills Manufacturing Company owned several tracts of land forming one body 'at and near the confluence of the two streams. This body of land bordered the river above and below the mouth of the creek and included the bed of the latter stream.

Equitable petition. Before Judge Pendleton. Fulton superior court. January 22, 1920.

<p>Mandamus. Before Judge Bell. Fulton superior court. April 5, 1920. '</p>

Appeal; construction of will. Before Judge Blair. Cobb superior court. April 9, 1920. J. F. Barmore died testate. The provisions of, his will (omitting the first item relating to the payment of his debts) were as follows: “ Item two. I will, devise, and bequeath to my beloved wife, Josephine Barmore, all the property, both real and personal, that I may die seized of, for and during her natural life or widowhood. “ Item three.

Petition for injunction. Before Judge Eve. Tift superior court. May 6, 1920.

<p>1. Exceptions assigning error upon an order of court making parties can not properly be made a ground of a motion for new trial.</p> <p>2. Although no rule nisi issued against B. H. Ray, calling upon him to show cause why he should not be made a party defendant, where plaintiff’s counsel filed a written motion that said Ray be made a defendant, and this application was treated as an amendment to the pleadings, and the amendment was allowed by order of the court, and the party named filed his pleadings disclaiming title, and in such disclaimer referred to himself as a party defendant, objections to evidence based upon the ground that the person named was not a party to the suit were properly overruled.</p> <p>3. A deed containing the description, “a parcel of land lying in Craw- . ford County, on Deep Creek, in the--district of said county, and known as, the south half of lot 30 in a survey- of said district and containing 101-1/4 acres,” is not void for uncertainty merely because it does not set forth the district in which the lot specified is located. It would be competent to show by parol testimony, if such was the case, that there was only one lot 30 in that county on' the creek named. - •</p> <p>4. The decree and order from the superior court, directing the administrator to sell the assets of the estate remaining in the hands of the administrator, and reciting that it was granted in a specified case which arose upon a bill to marshal assets, and that it appeared to the court from the bill that the only asset of the estate was the land described in the bill, was properly admitted in evidence over the objection that it did not describe the land in controversy, and did not furnish authority to the administrator to sell any land unless accompanied by the bill in which the land was described; as there was a presumption that the bill referred to was in existence at the time of the granting of the order, and its loss or destruction eould not prevent the introduction in evidence of the order itself and the deed executed in pursuance thereof at the sale by the administrator.</p> <p>5. A deed containing the description, “ lots 32 and 33 containing 202-1/2 acres each, also lots and parts of lots 29 and 30 and 35 in the 6th district of said county, containing 450 acres, more or less, with mill-site and water privileges thereon, said tract being known as Old Grant Mill Place,” was not void for uncertainty in the description of the land intended to be conveyed; for the identity of the tract of land known as Old Grant Mill Place could be shown by parol evidence.</p> <p>6. In locating land described in a deed as being composed of lots and parts of lots of land numbers 29, 30, and 35 in the 6th district of a named county, known as “Old Grant Mill Place,” it is competent to establish its. boundaries by proof of traditionary reputation in the neighborhood, derived from ancient sources or from the declarations of persons since deceased who had peculiar means of knowing what the reputation of the boundary was in an ancient day; but present-day reputation is not admissible. Under this ruling, evidence of the tradition as to there being a tract of land known as the Grant Mill Place, and what it consisted of, was admissible.</p> <p>7. Evidence of savings and doings of B. II. Ray, some of them tending to show recognition upon his part of the plaintiff’s claim of title and possession of the land, Ray being one of the parties defendant, was admissible, certainly to establish the plaintiff’s ease against Ray himself; and the evidence having been properly admitted, if the other defendant wished the effect of such evidence limited to one of the parties, a proper written request therefor should have been preferred. The court was not bound, in the absence of such written request, to deal with the special parts of the testimony in his charge, although counsel for such other defendant may have called the court’s attention to the fact that the evidence could not be binding upon any one except Ray, and coupled with this suggestion a request that the court instruct the jury that the evidence was not binding upon the administrator of Mrs. Ray.</p> <p>8. The lease from Colbert and McAfee, executors of X G. Colbert, to one Powell, was admissible in evidence, there being some evidence to show that the lessee named had, through agents or employees, occupied a part of the land in controversy.</p> <p>9. 'While it is the duty of the court to determine the contentions of the parties to a ease and not leave that to the determination of the jury, nevertheless it was not such an inaccuracy as to require the grant of a new trial that the court, in charging the jury in this case, said, that, “if the plaintiff claims a right to recover upon his prior possession, the plaintiff must show actual possession before the defendant took possession, and that.he had actual possession of the entire south half of lot 30,” the lot in dispute. Here “ if,” beginning the part of the insti'uctions quoted, may be regarded as equivalent to the word “where,” for the court had already instructed the jury that the plaintiff was undertaking to show his title, that is, the title of the • Colbert estate, by showing possession of the land in connection with certain deeds offered in evidence. Parts of the evidence in the case, with the deductions which the jury were authorized to draw' therefrom, were sufficient foundation for this charge.</p> <p>10. The court instructed the jury that the plaintiff could not recover unless he showed by a preponderance of the evidence that there was a tract of land known as the Grant Mill Place containing approximately 450 acres, and that the boundaries of such tract should also be fixed by evidence; and, in the part of the charge immediately following such instructions, added: “I charge you that the deed is not such a deed upon which the plaintiff can recover in this case, unless if is shown by a preponderance of the evidence that the plaintiff, as executor of Colbert, or Colbert in his lifetime, was in the open, continuous, notorious, and exclusive possession for seven years, under the deed, of some part of the land embraced in the deed.” It is insisted that these parts of the charge are contradictory, misleading, and not authorized by the evidence. There was some evidence to authorize the charge; nor were these parts of the charge contradictory. The first, part plaeed upon the plaintiff the burden of showing by evidence that there was a tract of land known as the Great Mill Place, containing a specified number of acres, and also of fixing the boundaries of the tract; and the other part,, given in connection, meant merely that the deed alone, even if the plaintiff had carried the burden plaeed upon him by the first part of the charge, would not authorize a recovery, but that possession, such as prescribed by the statute, must also be shown.</p> <p>11. Remarks addressed to counsel in a colloquy between the court and counsel are not grounds for reversal of the judgment refusing a new trial, it appearing that the remarks were made upon the conclusion of the evidence and before the charge of the court to the jury was begun, and counsel had full opportunity of moving for a mistrial on the ground now taken in the motion for a new trial. Having failed to do this, the plaintiffs in error can not, after the return of an adverse verdict, have that verdict set aside and a new trial granted.</p> <p>12. Upon a review of the entire record we can not say that there is no evidence to support the verdict.</p>

<p>Complaint for land. Before Judge Hammond. Burke superior court. June 29, 1920.</p> <p>The suit was brought to recover about nine acres of land lying on the west side of Beaver Dam creek in the 69th district G. M. of Burke County. The plaintiff owned a large tract of land lying on the east side of the creek, called the Forest Hill place, including a mill-pond with a dam extending across the creek. The defendant owned a large tract of land lying on the west side of the creek, called the Waterloo place. The dispute was as to whether the parcel sued for was part of the land to which the plaintiff held title, or whether it was part of the defendant’s plantation. The evidence was extensive, and in material respects conflicting. According to the plaintiff’s contention, the parcel sued for extended northward from the western end of the mill-darn, and was shown by recorded plats, as well as other evidence, to be included in his tract. One of the contentions of the defendant was that the plaintiff was estopped from asserting as against him title to the land in question, by having signed, as president of a company, a quitclaim deed to the defendant for the Waterloo place, in which the eastern boundary was given as the waters of Beaver Dam creek, and by having likewise signed a transfer to the defendant of an execution that had been levied on the plantation to satisfy a debt of another person, the entry of levy giving the same boundary. The verdict was in favor of the plaintiff, and the defendant excepted to the refusal of a new trial. In the motion therefor it was contended (among a number of grounds) that the verdict was against the law and the evidence, and without evidence to support it; and that the court erred:</p> <p>1. In charging the jury in the words of the Civil Code, §§ 5737, 5738 (see first headnote of the decision), because this instruction was not adjusted to the facts, the recital of boundary in the deed and transfer signed by the plaintiff being binding on him. Also, for the same reason, in charging as follows: “I charge you that for an estoppel to operate against a party signing a deed as to a boundary line between two adjacent tracts of land, the description included in the deed of the boundary line in question must be sufficiently definite and accurate to put the party signing the deed, who it is claimed is estopped, on notice as to the definite boundary line between the tracts in question; and if it is too indefinite to put the party executing the deed on notice, then it would not amount to an estoppel.” And in refusing a request to charge, that if it appeared from the evidence that a deed was signed by the plaintiff as president of the company named as grantor therein, then the plaintiff “is himself charged with notice of the recitals in that deed, and it is for [the jury] to decide, under the evidence, whether that notice would work an equitable estoppel.”</p> <p>2. In refusing a request to charge that “ a map or survey is not of itself title to land nor color of title;” the defendant contending that this was applicable to the facts, no evidence having been offered to prove the accuracy of the map or survey.</p>

<p>Equitable petition. Before Judge Hodge's. Madison superior court. February 16, 1920.</p>

Complaint for land. Before Judge Humphries. Meriwether superior court. March 20, 1920.

<p>. Complaint for land. Before Judge Graham. Bibb superior court. December 20, 1919.</p> <p>Suit was brought against the County of Bibb in January, 1916, by the children of Donald B. Jones, who died in 1892, and of his wife, Elizabeth J., who died in July, 1915, at the age of seventy-seven. years. The land in dispute was conveyed, in 1869, to Donald B. Jones, his heirs and assigns, “ in trust nevertheless for sole and separate use of Elizabeth. J. Jones, his wife, for and during her natural life, and after death with reversion to the said Donald B. Jones or her heir or heirs at law, with power to the said Elizabeth J. Jones to empower the said Donald B. Jones, . . to sell any part or the whole of said trust estate, and to reinvest the proceeds in such other property subject to the above-described trust as he shall deem best for the interest of said trust estate.” On November 29, 1870, the land was conveyed by Donald B. Jones, trustee of his wife, to Aaron A. Boff, by deed reciting a consideration of $4000 paid. On this- deed was an entry signed and sealed by Elizabeth J. Jones, and attested, stating that she had authorized and empowered her trustee to sell and make a deed to the property therein mentioned, for the price stipulated therein, hereby ratifying all the acts of her trustee in the premises. In December, 1872, Boff donated the land to the City of Macon and the County of Bibb, on condition that they would cause to be erected thereon a suitable building for the proper care and employment of indigent and sick persons of the city and county. The gift was accepted, and the “ Boff Home ” 1886, the city quitclaimed to the county title to the land, in consideration of a contract entered into by them for the reception of (county poor-ho-use, etc.) was erected on the land. In February, applicants into the institution. The buildings and other improvements erected on the land by the defendant were of large value. Boff died prior to October, 1885.</p> <p>The plaintiffs contended, that neither Donald B. nor Elizabeth J. Jones received any money or other thing of value for. the land and as consideration for the deed to Roff; that under the deed of 1869 the children of Elizabeth J. Jones took title in fee simple, with right of possession upon her death; and that the effect of the deed to Roff was to convey to him an estate in the land for the life of Elizabeth J. Jones, with remainder to her children. The.defendant contended, among other things, that it acquired complete title; and that it took possession and erected the improvements on the land in good faith and without notice of any fraud whatever, or of any claim of title by the plaintiffs. The case was submitted to the jury (under instructions of law by the court) on the issue whether the sale by the trustee to Roff was legal and valid, or whether in that sale there was a v commission of fraud to which Roff was a party. After verdict for the plaintiffs a motion for new trial was overruled, and the defendant excepted. The testimony of Elizabeth J. Jones, referred to in the first part of the decision (infra), was taken in June, 1914. She testified, that neither she nor Donald B. Jones received any part of the $4000 recited as the consideration of the deed to Roff; that no valuable consideration accrued either to her or to Jones individually or as trustee by reason of the execution of said deed; that the deed was given to Roff in payment or settlement of a pre-existing debt due him by the firm of Adams, Jones & Reynolds, of which her husband was at that time a member; that she did not receive any benefit from the deed; and that at the time it was executed nó consideration whatever was paid either toiler or to Donald B. Jones.</p> <p>In a cross-bill of exceptions taken by the plaintiffs error was assigned: (a) On a charge to the jury that “the recital of a consideration in the deed from Jones to Roff is to be taken as prima facie true, but is subject to be overcome or explained by parol testimony,” the plaintiffs contending that the court should have charged that the recital of receipt of consideration is presumed to be true, and such presumption continues until it is overcome by evidence. (5) On the refusal of.several requests for instructions to the jury, which need not be here set forth, (c) On the exclusion from evidence of testimony by Elizabeth J. Jones, to the effect that the consideration of the deed to her trustee in 1869, conveying the land in dispute, was a part of her separate estate (specifying), on objection that this was immaterial and irrelevant. (d) On the exclusion from evidence of testimony by Roff Sims, that about 1876 or 1877, in conversation with him, Aaron Eoff pointed out the land in dispute and “said that he took it from Mrs. Donald B. J ones to pay the debt of Adams, J ones & Eeynolds that was due to him, of.which firm Mrs. Jones’s husband was a member. He often referred to it as having been taken from Mrs. Jones to pay this obligation. On one occasion he said to me that he was a money lender and didn’t want any property, and didn’t feel as if, having taken this property in payment for a debt, from a woman, that he cared to liquidate it and have it become a part of his estate, and therefore gave it away.” The objections sustained were, that the testimony was hearsay, and that the statements were made by Eoif after he parted with title and possession of the property.</p>

<p>Complaint for land. Before Judge Wright. Cobb superior court. January 3, 1920.</p>

<p>Complaint for land. Before Judge Graham. Laurens superior court. October 28, 1919.</p>

<p>Questions certified by Court of Appeals (Case No. 10433).</p>

<p>This court being evenly divided in opinion upon the question certified by the Court of Appeals, the case is returned without instruction in answer to the question.</p>

<p>Under the evidence, and in view of the former decision by this court in the same case, it was not error to direct the verdict. (Hill, J., dissents. )</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. June 5, 1930.</p> <p>To tbe summary of facts given in the opinion it may be added, that the petition alleged the following: J. E. Lawrence was twice married. The sole issue of the first marriage was Mrs. Estoria Walters, one of the plaintiffs. The other plaintiffs, minors for whom appearance is made by next friend, are the issue of the second marriage. Some years immediately before his death J. E. Lawrence was very depressingly afflicted, having suffered for about twenty-one months from a total loss of understanding, being mentally without reason and recollection, and incapable of exercising any volition or will power. (Par. 8) On the morning of February 34, 1916, when he had been in convulsions the night before, and while he was mentally and physically helpless on his bed, his wife (the defendant) caused him to sign and attach his name and signature to a deed purporting to reserve to him a life-estate, with remainder to her, conveying tbe realty therein described and personal property worth approximately $1000; a copy of which deed is attached as an exhibit.</p> <p>To paragraph 8 the defendant demurred specialty, because the allegations were too vague, indefinite, and uncertain to be the basis of a recovery, no definite or specific act or acts being charged whereby the defendant caused Lawrence to execute the deed; and because the allegations as to personal property were too vague, indefinite, and uncertain, no items of personalty being set forth with the value of each item, so as to put defendant on notice of what personal property she had received. To meet this demurrer the plaintiff amended by alleging: “ That said personal property consisted in the main of the following described items, to wit:'two mules, one buggy and wagon, six hogs, about 350 bushels of corn, about 2500 bundles of fodder, cane-mill and boiler, farm implements, and other personalty of the minimum value of at least one thousand dollars. That while the said J. E. Lawrence was weakened by mental and physical affliction as hereinbefore and hereinafter alleged, the said Mary Lawrence, through her influence as nurse and wife and sole custodian of the physical and business welfare of the deceased, had him to sign his name to said instrument while he was upon his death-bed, his mind a mental blank, his body a physical wreck, thereby substituting her will for that of the deceased, the latter at the time being not possessed of that mind or reason equal to a clear understanding of the nature of his act in signing said deed or the consequences thereof.” This amendment was allowed, and the demurrer was overruled; and'the defendant excepted.</p> <p>The petition further alleged (par. 10) that the defendant took advantage of the physical and mental condition of the deceased, having the deed prepared in the city of Dublin and drawn for him to sign under the conditions stated; the deed being executed in secrecy so far as the members of the family were concerned. The deceased was not only afflicted greatly in mind and body at the time of the execution of said deed and for some time before, but his wife by virtue of their confidential relations exercised a controlling influence over his will power, and was capable at all times of substituting her own will for his. Taking advantage of her own position and the enfeebled condition of the deceased, who had been in convulsions during the night preceding the morning when the deed was executed, she procured the same, thereby undertaking to deprive and defraud-petitioners of their inheritance in said land, it being apparent' at the time that J. E. Lawrence could live but a few days longer. It does not appear that paragraph 10 was demurred to.</p>

<p>Habeas corpus. Before Judge Meldrim. Chatham superior court. May 10, 1920.</p>

<p>Divorce; custody of child. Before Judge Mathews. Bibb superior court. June 5, 1920.</p>

<p>Specific performance. Before Judge Hammond. Richmond superior court. June 31, 1930.</p> <p>On December 17, 1919, a contract for sale of real estate was entered into by Mrs. Bransfojd as party of the first part and the plaintiff in error as party of the second part; the former obligáting herself to furnish to the latter a good, marketable title, and to convey by warranty deed. The contract contained this stipulation: “ It is agreed between the parties that if, in the construction of the trust deed from Alfred Baker [hereafter referred to], a question arises over the possibility of issue of Mrs. Bransford, this question is waived; and should this be the only defect in the title offered, the party of the second part shall be bound to take the property and to pay the purchase-money. If a marketable title (with this exception) cannot be furnished, the party of the second part shall not be bound to take the property or to pay the purchase-price.” On February 16, 1930, in compliance with the contract Mrs. Bransford executed a warranty deed conveying the property described in the contract, tendered it to the other party, and demanded payment of the purchase-price. Acceptance of the deed and payment of the price were refused, for the reason that the property was held by Mrs, Bransford under the terms and conditions of a trust set forth in a deed from her father, Alfred Baker, to himself as trustee for her, dated May 25, 1888, and that “ the interest of Alfred Baker as a contingent reversioner or remainderman under the trust deed will pass to the heirs at law of Alfred Baker, to be determined at the death of Mrs. Bransford.” Thereupon Mrs. Bransford brought suit and obtained a decree for specific performance of the contract of sale; to which decree the defendant excepted.</p> <p>The material part of the trust deed of May 25, 1888, is as follows : “ In trust for the sole and. separate use of Lizzie F. Bransford, daughter of Alfred Baker, for and during her natural life, free from the debts, contracts, liabilities, or control of any husband, and after her death in further trust for the use and benefit of any child or children living at her death; or if they all die during their minority, then this trust to cease, and the property hereby conveyed . . shall go by reversion or remainder to grantor hereof, the said Alfred Baker. But if she shall leave child or children and any of her children attain majority, and provided-they attain majority, then and in such case in further trust to hold said property . . till they attain majority, and, as each child attain such age, to convey said property in fee simple, share and share alike, to such child or children so attaining majority.” When this deed was executed the plaintiff was married, and thereafter she bore two children, both of whom died on August 24, 1911, during their minority. Soon thereafter their, father died, leaving the plaintiff, who “ is now a widow without children, and is over sixty years of age, unmarried, and has attained the age where the possibility of issue is extinct.” The statement just quoted from the petition is admitted in the answer, wherein the defendant “ specifically waives any question over the possibility of further issue of Mrs. Bransford,” and “ agrees that the issues made by the pleadings are to be determined as though in law the possibility of issue is extinct.” Also, in an agreement of facts- on which, in connection with the pleadings, the parties submitted the case for decision by the judge, appears the statement: “ The possibility of issue is, so far as this case is concerned, extinct. If the deed tendered by the plaintiff passes a good and marketable title except for the legal possibility of additional issue of the plaintiff, the defendant is satisfied therewith.”</p> <p>In the agreement of facts it is admitted that if the plaintiff owns the estate in reversion by inheritance from her father, as well as the life-estate under the trust deed, she has a good, marketable title to the property, and the deed tendered by her would pass a good and sufficient title to the defendant. It was further alleged and admitted, that Alfred Baker died intestate on June 16, 1896, owing no debts, and leaving as his sole heirs at law his widow (the plaintiff’s mother) and the plaintiff, his.only child; that there was no administration on his estate; that his widow died intestate on May 16, 1899, leaving the plaintiff as her sole heir at law; that there was no administration on her estate, and her debts have been paid; and that on January 16, 1897, in appropriate proceedings the plaintiff was legally appointed substituted trustee in lieu of Alfred Baker, deceased, and duly qualified by giving bond, and continued to act as trustee until after the death of her two minor, children in 1911.</p>

<p>Divorce. Before Judge Mathews. Bibb superior court. September 14, 1930.</p>

<p>Alimony, and custody of child. Before Judge Terrell. Troup superior court. July 1, 1920.</p>

Equitable petition. Before Judge Cobb. Barrow superior court. July 6, 1920. John B. Flanigan brought an equitable petition against W. H. Beddingñeld, Calloway Nowell, Floyd Lockett, and Courtney Bus-sell, and alleged in substance as follows: The plaintiff had entrusted one of the defendants, Courtney Bussell, who was a share cropper with the plaintiff, with certain cotton for the purpose of selling it and returning to the plaintiff the money arising from the sale.

<p>Certiorari; from Court of Appeals. 25 Ga. App. 483.</p>

<p>On the trial of a complaint for land in Cobb County, where the plain- . tiff's right to recover necessarily depended upon the validity of a sale of the land by a sheriff in the year 1837, before the issuing of the grant" by the State, the court did not err in rejecting, on timely objection, the deed made by the sheriff pursuant to such sale, and a non-suit necessarily followed.</p>

<p>Indictment for murder. Before Judge Kent. Twiggs superior court. August 24, 1920.</p>

<p>Libel for divorce. Before Judge Ellis. Fulton superior court. August 27, 1920.</p>

<p>Indictment for rape. Before Judge Worrill. Miller superior court. June 12, 1920.</p>

<p>Indictment for rape. Before Judge Meldrim. Chatham superior court. August 14, 1920.</p>

<p>Accusation of enticing laborer. Before Judge Gower. Crisp superior court. June 29, 1920.</p>

<p>Petition for mandamus. Before Judge Park. Greene superior court. February 14, 1920.</p>

Indictment for murder. Before Judge Walker. Wilkes superior court. October 7, 1920. The homicide on which the accused was convicted of murder was done by shooting his wife in the head with a pistol.

<p>Complaint for land. Before Judge Park. Hancock superior court. September 27, 1920.</p>

<p>Indictment for murder. Before Judge Park. • Putnam superior court. October 28, 1920.</p>

<p>Indictment for rape. Before Judge Hardeman. Emanuel superior court. October 11, 1920.</p>

<p>Indictment for murder. Before Judge Humphries. Fulton superior court. October 23, 1920.</p>

<p>Indictment for murder. Before Judge Walker. Taliaferro superior court. November 1, 1920.</p> <p>Ad O’Rear was convicted of the murder of Walter Jarrell, with, recommendation of mercy. The only special exception was that the court erred in failing and refusing to charge the j'ury on the law of voluntary manslaughter (it not appearing that there was a request for such instruction), because all the evidence, facts, and circumstances showed that that offense, upon a sudden quarrel and a mutual intent by the accused and the deceased to engage in mutual combat with pistols, was clearly involved in the case. From the brief of evidence it appears that the homicide was committed on a Sunday afternoon in June, 1930, at a buggy-shelter near a church where services had been conducted. When witness Dunn walked up there Ad was cursing Walter, calling him a vile name, and saying, "If you don’t like what I do, why don’t you do something?” Ad pulled a pistol from his pocket and cocked,it. Dunn said, " Ad, don’t do that; you will get into trouble.” Ad said, " God damn you, I will attend to my own business.” About that time Ad shot twice, and Dunn ran away. He heard other shots after that. The buggy was under the shelter, front first. Ad was standing between the shafts, and Walter at the rear wheels. Walter had nothing in his hands. He just said, "If you don’t like what I did, why didn’t you say something down there? ” Several other persons were present. When one of these, named Pete, got there "the fuss had started.” Ad was cursing Walter, who told him that he didn’t come there for a fuss and didn’t' want a fuss. Ad kept on cursing, and pulled out his pistol and shot; and Pete ran off. He could see Walter’s hand, but saw nothing in it. Walter did not make any movement with his hand. He did not seem to be mad, and Pete did not hear him curse Ad. He did not do any shooting. Pete did not see him with a pistol; does not know whether anybody but Ad was shooting or not, as he ran off.— Another witness, Alexander, testified that he was at the shelter when Walter walked up. Ad was already there. “Walter walked up and walked around that way, and I heard Ad say, ‘Keep your God damn mouth shut and run your business,’ and run his hand in here; and Walter walked around and slapped his foot on the buggy-step. Ad was on the right side of the buggy, and Walter said, ‘ I have not said a word to you,’ and he said, ‘ I say keep your God damn mouth shut,’ and I' walked away, and the shooting started, and I didn’t look back any more. . . Walter didn’t have a thing in his hand; he had his hand on his hip here this way. Walter didn’t make any movement to go in his pocket. If Walter was mad I couldn’t tell it; he didn’t look that way. Ad commenced cursing him. I didn’t see anybody with a pistol but Ad. . . There was more than one shot. I did not stop to count the shots.”— Another witness testified, that while she and two other women were talking, Ad passed them and said, “ God damn.” One of them called him and said, "Ad, don’t get into nothing/’ and he said, “ I am not going to get into nothing.” He went on down there and was talking to the Jarrell boy. “ Ad was this way with his back toward us, and the pistol fired. I run around the corner of the house, and then they stopped shooting, and Ad come up there. I didn’t see nobody shoot but Ad. I saw him shoot; didn’t see any one else. He shot at Jarrell,” who “was standing between the buggy-wheels when he shot him. I didn’t see no pistol in his hand. . . I did not see him with any pistol. Nobody was shooting but Ad when I looked. I couldn’t tell how many shots fired.” One of the other two women said to Ad, “ I told you not to do it,” and Ad said, “Didn’t you see him shooting me in the face ? ”</p> <p>For the defendant Swain testified, that as he came by the shelter they shot, and when he looked under the shelter Ad and Walter were both shooting. He did not know who shot first. He kept on going. It was no time between the first shot and the next one. They just kept on shooting. After the first shot he saw them both shooting; did not know how many shots were fired, or how many pistols were shooting; did not know that Ad shot Walter; did not see it. He was the only man witness saw with a pistol; did not see anybody take a pistol from Walter after he was shot. — Young testified that after the shooting, after they had put Walter into the buggy, he saw a man (stranger) reach into Walter’s pocket, take therefrom a pistol, and put it into his own pocket.— Holden testified : “ When the first shot fired I had my back turned, and then I turned and looked up toward the shelter, and it looked like Ad was fighting smoke or dust or something with both of his hands. Then I saw him get his gun out of' his pocket, and he started to shooting. . . I did not see Walter do any shooting. I could see where he was after I looked around. . . I did not see Walter with a pistol. I don’t know he had a pistol. . . I didn’t see any pistol taken from his pocket. I didn’t stay there. I don’t know who fired the first shot. . . Ad shot so fast I couldn’t count the shots.”— Walker testified: “ I wasn’t paying them no attention until I heard the noise. I saw Walter with a pistol. I saw Walter shoot his pistol. Walter shot first; he shot before Ad shot. When he made the first shot I saw Ad fighting the smoke out of his face, and I . . went toward the shelter. I never did see Ad shoot at all. I was not looking at him all the time. When Walter shot I . . went to the church. I didn’t see any other shooting at all. I heard it, but I didn’t see it. . . I didn’t stay there no time after "Walter shot. I left right then. I saw Ad fighting smoke, and I looked and went on toward the church. Ad was fighting smoke with both hands. If he had a pistol I would have seen it. Ad was standing, facing "Walter. Walter did not have his back to him, kinder side to him. . . The first thing that attracted my attention there was a shot. I didn’t see anything. I then saw Walter shoot; that was the next thing I saw. I saw Walter shoot at Ad with a pistol. I saw Ad fighting to get out of the smoke, with his hands up this way, with his back to me. T heard words down there. The first shot I saw Walter shot it.”— Ogletree testified that he was about 250 yards away, and thought he heard eight or ten shots fired; and that all of them were close together, except that there were about fifteen or twenty seconds between the first and the others.— The accused stated that he went to the shelter to get a drink of liquor from Dunn, and while so doing Walter walked up and said, “ Don’t sell that [vile name] a drink.” Continuing, accused stated: “ I said, ‘ Keep your mouth out of my business,’ and he said,f Don’t you like what I said? ’ and I said, ‘ No I don’t,’ and that time he come out with his pistol. Just as he threw it up I turned my head that way, and the smoke was all in my eyes. I knocked the smoke out of my face and when he made his next shot, and when I got mine out I let in on him.”</p>

<p>Indictment for murder. Before Judge Wright. Floyd superior court. October 16, 1920.</p>

Equitable petition. Before Judge Meldrim. Chatham superior court. May 30, 1920. The exception is to a judgment sustaining a general demurrer to a petition and dismissing the action. The petition was filed January 30, 1920, by Joseph Lichtenstein against Marx Wilensky, and, so far as necessary to be stated, was as follows.

<p>Alimony. Before Judge Tarver. Whitfield superior court. May 29, 1920.</p>

<p>Ejectment. Before Judge Thomas. Colquitt superior court. July 3, 1920.</p>

<p>1. Where there was a judgment awarding alimony, which the husband subsequently failed to pay in the monthly installments as provided in the judgment, and a petition was filed by the wife, praying that the husband be required to show cause why he should not pay the alimony or be punished for contempt, it was not error to refuse to dismiss such petition on the ground that it was not sworn to.</p> <p>2. The judgment ' requiring the payment of alimony within the time specified, and in default of such payment that the defendant be incarcerated, was authorized under the pleadings and the evidence.</p>

Mortgage foreclosure. Before Judge Bell. Fulton superior court. May 19, 1920. W. Carroll Latimer, as assignee of a mortgage on realty dated in 1899, sought to foreclose it in equity against the mortgagor, J. M. DeLay, a non-resident of the State, making the latter’s wife, L. Y. DeLay, eodefendant.

<p>Indictment for mnrder. Before Judge .Mathews. Houston superior court. January 5, 1921.</p>

<p>Equitable petition; intervention. Before Judge Bell. Eulton superior court. May 19, 1920.</p>

<p>1. A court of equity will not enjoin the commission of crime generaEy; but it has jurisdiction, and will in a proper ease, at the instance of the State, restrain an existing or threatened public nuisance, though the offender is amenable to the criminal laws of the State.</p> <p>2. That the act of which abatement by injunctive process is sought is made penal by statute neither gives nor ousts jurisdiction in chancery. Accordingly, injunction will not lie at the instance of the State to restrain one from engaging in the practice of treating persons according to the chiropractic method, merely because such person is amenable to the criminal laws of the State, in that he has not taken the proscribed examination and obtained a license from the State board of medical examiners, required of practitioners of medicine.</p>

<p>Indictment for murder. Before Judge Sheppard. Tattnall superior court. July 3, 1920.</p>

Equitable petition. Before Judge Bell. Eulton superior court. June 2, 1920. Clarence Carroll, suing by Odessa Carroll as his next friend, brought an equitable petition against the Atlantic Steel Company, and alleged in substance as follows: About May 13, 1918, while employed by the defendant the plaintiff was injured and damaged in the sum of $25,000, having lost his left leg through the defendant’s negligence.

Indictment for murder. Before Judge Park. Morgan superior, court. October 12, 1921. Henry Langston Jr. and John Henry Brady were charged with the murder of Henry Moody by “ shooting with a rifle and striking with an axe the said Henry Moody,” thereby inflicting the mortal wound.

Before Judge Hammond. Richmond superior court. December 11, 1920. Jacob Phinizy filed his petition for divorce against his wife, Mrs. Mary V. Phinizy, on the ground of wilful and continued desertion for more than three years.

<p>Petition for injunction. Before Judge Irwin. Douglas superior court. May 13, 1920.</p>

<p>Indictment for murder. Before Judge Lovett. Effingham superior court. June 5, 1920.</p>

<p>The Court of Appeals certified (in Case No. 11059) certain questions to which the rulings in the foregoing headnotes are answers.</p>

Equitable petition. Before Judge Mathews. Bibb superior court. August 21, 1920. United Leather Company, a Georgia corporation, brought an equitable petition against Mrs. Bessie N. Proudfit, to recover $2044.44 damages for breach of an alleged contract, or to reform the contract.

The Court of Appeals certified (in Case No. 10820) the following questions: “ 1. Where a note signed by R. A. Chandler as maker and containing the name of John A. Fowler as the payee is, at the instance and request of R. A. Chandler, the maker, indorsed by Thos.

Alimony, etc. Before Judge Irwin. Douglas superior court. September 30, 1920. The parties lived together in marital relation between two and three years. They separated in April, 1919, and the divorce suit was served in March, 1920. Six months later there was a hearing on application for temporary alimony and counsel fees. The only child of the marriage, a girl, was then about two and a half years of age. The wife had a son of about fifteen years, by a previous marriage.

<p>The provision of the act of 1897 (Acts 1897, pp. 82-85) generally referred to as the validating act, and contained in sections 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 bonds, and the time within which he shall hear and determine the same, is directory only.</p>

<p>Indictment for murder. Before Judge Humphries. Fulton superior court. October 30, 1920.</p>

<p>Petition for mandamus. Before Judge Cobb. Clarke superior court. November 5, 1920.</p>

Indictment for murder. Before Judge Jones. Stephens superior court. December 31, 1920. After conviction of murder Bradley moved for a new trial, which was refused, and he excepted. The evidence tended to prove that he killed his wife’s sister by shooting her with a gun at night, as she lay asleep in bed, intending to shoot his wife, who was sleeping in another room, and from whom he had been living apart for two weeks or longer.

<p>1. The legislature may pass an act to become effective at some future date after its passage and approval by the Governor. Consequently, where the legislature passed an act which was approved on August 17, 1920 (Acts 1920, p. 90), reciting in section 1 that “'upon the passage and approval” of the act there should be appointed by the Governor an additional judge of the superior courts of the Macon Circuit for a term commencing on the date of the appointment, etc., and, where by section 11 of ihe act it was provided that “ This act shall not go into effect until November 1st, 1920,” the act became effective on the latter date; and where on November 1, 1920, the appointee qualified as judge and a commission was issued to him by the Governor, such qualification and commission authorized the judge to perform the duties of the office until his successor was duly elected and qualified in the manner prescribed by law. The word “upon,” as used in the first section construed in connection with section 11 of the act, means “ after.”</p> <p>2. Thirty days not having intervened between November 1, 1920, and the next general election after the appointment of an additional-judge for the Macon Circuit (November 2, 1920), it was competent for the Governor, on November 1, 1920, to issue a commission to the appointed and qualified judge, authorizing him to discharge the duties of the office until January 1, 1923, as provided by the act of 1920.</p> <p>3. The act of 1920 (Acts 1920, p. 96) is not unconstitutional as being repugnant to art. 6, see. 3, pars. 1, 2, and 3, of the constitution of Georgia (Civil Code, §§ 6507, 6508, 6509), or to art. .5, sec. 1, par. 14 (Civil Code, § 6483), which relate to.the election and terms of office of judges of the superior court, and how vacancies in such office are to be filled.</p>

Indictment for murder. Before Judge Sheppard. .Tattnall superior court. January 14, 1921. The accused, Needham Collins, was convicted of killing his wife, and was sentenced to life imprisonment. The evidence was in substance as follows: The accused and his wife lived alone. Early in the morning a neighbor, who was working about three hundred yards distant from the house of the accused, heard a noise as of some one crying.

<p>Petition for injunction. Before Judge Hodges. Madison superior court. June. 18, 1920.</p>

<p>Indictment for murder. Before Judge Thomas. Thomas superior court. February 10, 1921.</p>

<p>Petition for injunction. Before Judge Hutcheson. Clayton superior court. July 7, 1920.</p>

<p>Equitable petition. Before Judge Park. Baldwin superior court. July 13, 1920.</p>

<p>Equitable petition. Before Judge Jones. Stephens superior court. August 6, 1920.</p> <p>Mrs. Martha R. Murphy filed an equitable petition against Joseph M. Murphy and others, and alleged that she was a tenant in common with the defendants, who were children and grandchildren of Nathan B. Hunter, in a certain tract of land which, on April 25, 1839, was conveyed by Thomas I. Murphy to Nathan B. Hunter, who, on December 28, 1869, conveyed it to Rebecca A. Murphy “ during her lifetime, and after her death then to such child and children as she may have living at her death, and the representatives of such children, if any.” Nathan B. Hunter died on April 15, 1888; and Elvira Hunter, his wife, died on January 7, 1891. Bebecca A. Murphy, the grantee and life-tenant in the deed, died February 28, 1920. William H. Murphy, a son of the life-tenant, died on August 30, 1916, leaving the plaintiff, who was his wife, as sole heir at law; and there was no administration on his estate, there being no debts to pay and no need of administration. Plaintiff claims to own one undivided sixth interest in' the tract of land in controversy as tenant in common with the defendants, as the sole heir at law of her deceased husband, under the deed. The prayer was for partition of the lands, for appointment of a receiver, etc. The defendants filed a demurrer to the petition, on the ground that it set out no cause of action, and that the allegations of the petition, together with a proper construction of the deed attached to it, show that the plaintiff is not a tenant in common with the defendants of the lands described, .and that she has no interest therein. The court overruled the demurrer, and the defendants excepted.</p>

<p>Complaint. Before Judge Howard. Butts superior court. July 10, 1920. .</p>

Injunction. Before Judge Dickerson. Clincb superior court. July 31, 1920.

Equitable petition. Before Judge Meldrim. Chatham superior court. August 9, 1920. On February 1, 1918, eight tax executions aggregating $1167.55,. for the years 1910-1917, were levied by the sheriff on 52 acres of land known as the Stiles farm, the tract having been purchased in former years in parcels of 5 and more acres, and being capable of subdivision; the whole variously valued at from $10,000 to $30,000.

Attachment for contempt. Before Judge Thomas. Thomas superior court. August 25, 1920. The Farmers and Merchants Bank of Coolidge filed a petition for injunction, receiver, etc., against C. S. Dennard, L. V. Dennard et al.; and to an interlocutory order appointing a receiver and granting the injunction and other relief, as prayed in the petition, the defendants excepted.

<p>Claim. Before Judge Graham. Montgomery superior court. August 3, 1920.</p>

<p>Indictment for murder. .Before Judge Terrell. Muscogee superior court. December 31, 1920.</p>

<p>Alimony. Before Judge Dickerson. Berrien superior court. January 25, 1921.</p>

<p>1. Where a contest is filed before the ordinary of the county under the provisions of § 125 of the Civil Code, relating to contested elections, the ordinary has no other jurisdiction than, after examining and counting the ballots as provided in preceding sections of the code relating to contested elections and taking evidence, to declare whether the contestant or the eontestee is elected to the office in question, and' has no jurisdiction to entertain the question as to whether the election itself, out of which the contest grew, was void; and if he exceeds the jurisdiction and declares the election illegal, his judgment is void.</p> <p>2. It is unnecessary in this ease to decide whether, with proper parties, the question of the validity of an election to a municipal office can be adjudicated, and the election held illegal and void; because necessary parties for the adjudication of that question had not been made, and upon that ground alone the court was required to refuse the mandamus absolute.</p>

<p>Petition for injunction. Before Judge Kent. Laurens superior court. July 30, 1920.</p>

Illegality of execution. Before Judge Dickerson. Berrien superior court. July 26, 1920. On March 2Í, 1904 a judgment foreclosing a mortgage on certain described, realty and personalty in favor of Joe Peterson, administrator, against the mortgagor, H. E. Gaskins, was obtained. A mortgage fi. fa. issued thereon, and, on February 3, 1915, was levied upon the realty embraced in the mortgage.

<p>Where one suffers an injury as the result of the concurring negligence of two tort-feasors, the injured party may maintain a joint or several suit against the tort-feasors; and it will be sufficient to support a recovery in a joint suit if the negligence of both be a contributing cause, although the degree of care owed to the complainant by both parties defendant be not the same.</p>

<p>Action for specific performance. Before Judge Hutcheson. DeKalb superior court. September 11, 1920.</p>

<p>Petition for mandamus. Before Judge Tarver. Whitfield superior court. September 11, 1920.</p>

<p>The Court of Appeals certified (in Case No. 11872) a question, to which the ruling in the headnote is an answer.</p>

<p>Divorce and alimony, etc. Before Judge Irwin. Douglas superior court. June 27, 1930.</p>

<p>Where exception was taken to a refusal of an injunction to prevent the holding of an election, but no supersedeas was obtained and the election was duly and regularly held, the bill of .exceptions thereafter certified and filed presented a moot question not for decision on writ of error.</p>

<p>1. Where a husband’s suit for divorce was answered by the wife, and by amendment she averred that on the filing of her answer the husband had abandoned her and had since lived separate and apart and had not since then provided for her in any way, and she prayed for an allowance as temporary alimony, but did not pray for permanent alimony or bring a cross-action, and upon a hearing temporary alimony to be paid monthly was allowed to her; and where thereafter the husband dismissed his suit, the dismissal terminated the operation of the order for temporary alimony.</p> <p>2. Where upon dismissing his first action the husband brought another suit for divorce, the wife had a right to apply for and have granted to her temporary alimony and counsel fees pending the suit; she having answered it and prayed for temporary and ^permanent alimony.</p> <p>3. It was not error to refuse an interlocutory injunction against enforcement of an order for payment of temporary alimony, passed in the second divorce suit; this order allowing the husband credit for whatever payments he had made to the wife under the order for temporary alimony in the first suit since the time he dismissed it.</p>

<p>• Motion to set aside verdict and decree. Before Judge Wright. Floyd superior court. May 8, 1920.</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. June 10, 1920.</p> <p>M. II. J ohnson filed an equitable petition against William Brice, A. E. Hardison, and M. H. Hardison, alleging as follows: On August 24, 1915, a contract was made between William Brice and A. E. Hardison, which recited that “ the said William Brice doth hereby lease to the said A. E. Hardison” described land containing ninteeen acres, "the said lease to be for a term of fifteen (15) years beginning January first, 1916, at one hundred dollars per year, payable on the first day of October of each year, during the continuance of said lease. A failure to comply with this condition terminates this contract of lease.” On October 15, 1915, Hardison orally leased to M. H. Johnson for 15 years 3.34 acres of the 19 acres of land covered by the contract between Brice and Hardison. A provision of the agreement between Hardison and Johnson was, that, if Hardison should for any reason fail to comply with the terms of his contract with Brice, Johnson would have the right to pay to Brice the annual rental provided in the lease from Brice fco Hardison and thereupon should succeed to all the rights of Hardison. After Johnson had taken possession of the 3.34 acres of land covered by the contract between himself and Hardison and had made considerable improvements and expended considerable sums for fertilizer and labor thereon, Hardison refused to execute and deliver to him a writing containing the terms of their agreement. Johnson procured in Bibb superior court a decree compelling Hardison to specifically perform the contract between them, and enjoining him from making any disposition of the land contrary to his agreement with Johnson, and providing that the decree should operate as a lease contract. William Brice and A. R. Hardison conspired to defeat Johnson’s rights, and in pursuance thereof caused the following entry to be made upon the contract between Brice and Hardison: “ Ga. Bibb County. The debt which the within instrument was given to secure having been paid, the Clerk of the Bibb Superior Court is hereby authorized to cancel the same of record. A. R. Hardison.” Entry of satisfaction was accordingly made upon the record of said contract. Brice has attempted to enter iuto a new contract of lease with M. H. Hardison, a nephew of A. R. Hardison. M. H. Hardison is threatening to take possession of the land and dig up the fruit-trees whieh Johnson has planted. Johnson believes M. H. Hardison had actual notice of the decree entered in the- suit by Johnson against A. R. Hardison, and of Johnson’s rights. Johnson tendered to Brice in cash the annual rental provided in the contract made by him with Hardison, immediately upon being informed of the attempted cancellation of the lease made by Brice to A. R. Hardison and the new lease to M. H. Hardison; but this tender was refused by Brice. The prayers are, for injunction to prevent M. H. Hardison from entering upon or interfering with the land; for decree requiring A. R. Hardison to revoke the attempted cancellation of the lease between Brice and himself; that Brice be enjoined from renting, leasing, selling, or in any way encumbering said tract of 19 acres during thp period covered by the lease to A. R. Hardison, 15 years; that petitioner have a decree authorizing him to occupy, use, and cultivate said 19 acres of land upon payment or tender of the annual rental of $100 to Brice; and for process and general relief. Brice and M.. H. Hardison answered, denying all the material averments of the petition, and by amendment alleged that Johnson had wrongfully taken possession of the 3.34 acres of land, and prayed for recovery of possession thereof and mesne profits. A verdict finding for the defendants Brice and M. H. Hardison the recovery of said 3.34 acres, and against all the plaintiffs prayers, was directed by the court; and decree was entered accordingly. Upon the trial, at the April term, 1920, of the superior court Brice testified: “ A. B. Hardison paid me the. rent every year while he had possession of it, including 1919.” Defendant also introduced in evidence thirteen promissory notes, one due on October 1, 1917, for $100 principal, and one for the same amount due on the first of October of each succeeding year thereafter, and identified by witness William Brice as being the notes executed and delivered by A. B. Hardison at the time the contract of August 24, 1915, was executed and delivered, the first five notes of said series being dated August 24, 1915, and the rest of the notes dated October 24, 1915. The notes covered thirteen years, all were signed by A. B. Hardison, payable to the order of William Brice, and each recited that it was “for rent of land in Butland District, Bibb County, Georgia.” Across the end of each note, and separated from the body of the note by two parallel lines, was printed the following language: “Bent Note. In case the premises are rendered untenable by fire, rent to cease from date of fire.” In the body of each note was printed the following: “It is agreed that no change, alterations, or repairs shall be made by tenant without the written consent of the landlord.” The bill of exceptions recites that the court below construed the contract between Brice and A. B. Hardison as not creating an estate for years, but as giving to Hardison only the right of a tenant to occupy said lands. Johnson, the plaintiff in error, contends that the contract between Brice and A. B. Hardison did create an estate for years, and that by virtue of the decree in the suit of Johnson against A. B. Hardison, Johnson succeeded to all the rights of A. B. Hardison under that contract, subject to the condition named in the decree, to wit: “if the said A. B. Hardison should for any reason fail to pay the said Wm. Brice the lease rent according to the contract between the said Brice and Hardison, . . the said M. H. Johnson shall have the right to pay to the said Wm. Brice the rent annually as provided for in said contract, and shall thereupon succeed to all the rights of the said A. R. Hardison under and by virtue of his contract with the said Wrh. Brice.” Error is assigned upon the direction of the verdict and the decree.</p>

Equitable petition. Before Judge Sheppard. McIntosh superior court. July 20, 1920. Held: and still holds, in so far as plaintiffs know, .the note and draft given in settlement of the case. Plaintiffs did not know of the judgment until long after the same had been rendered and the officer was seeking to levy the fi. fa.

<p>Whether the court below erred in denying the motion to recommit a case for hearing before auditors depended upon the evidence submitted at the hearing of the motion; and that evidence not being of such character as to require a judgment different from that rendered by the judge, the judgment upon review is affirmed.</p>

<p>Certiorari to Court of Appeals. 25 Ga. App. 341.</p>

<p>Petition for injunction. Before Judge Highsmith. Camden superior court. June 19, 1920.</p>

<p>Equitable petition. Before Judge Howard. Butts superior court. July 10, 1920.</p>

<p>Under the pleadings and the evidence in the case the court did not err in dismissing the petition for injunction and receiver.</p>

<p>1. Under tlie pleadings and the evidence the court did not err in sustaining the demurrer, and in refusing an injunction.</p> <p>2. The petition was filed for the purpose of having the City of Savannah enjoined from collecting a license or business tax, on the ground that the city was without authority to adopt the ordinance levying the tax, and because it was unreasonable, excessive, not ad valorem, etc. Held, that under its charter the City of Savannah has authority to levy the license or business tax here involved. Code of 1882, § 4847; Ordinance of City of Savannah, July 16, 1919. See Acts 1915, p. 826, sec. 3.</p> <p>3. The Mayor and Aldermen of Savannah, under the charter, also has authority to make a reasonable classification of the general business of selling automobiles, selling or furnishing gasoline, or oil of any kind, etc., and to levy a tax on each of such classes. And where such a tax is levied, and one person conducts several of such businesses, he may be made liable to a tax on each, although one branch of the business may be conducted in a building, and the other on the sidewalk in front of the same building. Ray v. Tallapoosa, 142 Ga. 799 (83 S. E. 938), and cases cited. And see Sawtell v. Atlanta, 138 Ga. 687 (75 S. E. 982).</p>

Petition for injunction. Before Ju On March-29, 1919 (from the record it is evident that this date should be 1918), a number of citizens of Yow, Mullin’s Ford, and Bruce school districts, in Stephens County, petitioned for “the construction of a school building and the purchase of a lot upon which to erect said building and the equipment of said building to be constructed in the combined districts of Yow, Mullin’s Ford, and Bruce’s Academy.” Each of the persons who signed…

<p>Petition for injunction. Before Judge Harrell. Decatur superior court. August 10, 1920.</p>

<p>Petition for injunction. Before Judge Sheppard. Tattnall superior court. September 4, 1920.</p>

Indictment for murder. Before Judge Walker. Warren superior court. December 18, 1920. John Brown Jr. was convicted of murder, and sentenced to the penitentiary for life. The case is for review on a writ of error excepting to the overruling of his motion for a new trial.

<p>The accused was indicted for involuntary manslaughter in the killing of a named person without any intention to do so, but in the commission of an unlawful act which, in its consequences, naturally tended to destroy the life of a human being. There were two counts in the indictment. In the first, the unlawful act charged as being committed by the accused when the homicide occurred was the driving of an automobile by him over a public highway at a speed exceeding thirty miles an hour; and in the second, that he was under the influence of intoxicating liquors while driving the automobile at the time of the homicide. Eeld:</p> <p>1. So much of the act of the General Assembly passed at the called session of 1915 (Ga. L. Ex. Sess. 1915, p. 107) as (in sec. 10) declares it to be unlawful for any person to operate a motor-vehicle upon any public street or highway at a speed exceeding thirty miles per hour, and as (in sec. 15) declares it to be unlawful for any person to operate a motor-vehicle upon any public street or highway while under the influence of intoxicating liquors or drugs, is unconstitutional and void, for the reason that the constitution, art. 5, see. 1, par. 13 (Civil Code, § 6482), declares that “no law shall be enacted at a called session of the General Assembly, except such as shall relate to the object stated in his [the Governor’s] proclamation convening them,” and such designated portions of the act above referred to do not relate to any object stated in his proclamation calling the special session. the only reference to motor-vehicles in the proclamation being as to amending the automobile license-tax laws of the State, so as to secure the collection and disposition of the' same.</p> <p>(a) The approval of the act by the Governor did not make it valid.</p> <p>(5) The ruling here made is not in conflict with anything decided in Dorsey V. Wright, 150 Ga. 321 (103 S. E. 591), and Atlantic Coast Une R. Co. v. State, 135 Ga. 545 (69 S. E. 725, 32 L. R. A. (N. S.) 20).</p> <p>(c) The first count in the indictment being based solely on that part of section 10 of the act of 1915 held to be void, the demurrer to it should have been sustained.</p> <p>2. The second count of the indictment may stand upon section 9 of the act of 1910 (Acts 1910, p. 90), making it a misdemeanor for one to operate an automobile over the public streets or roads while intoxicated, which act was not repealed by the unconstitutional provision of section 15 of the act of 1915. However, as the State introduced no evidence tending to support this count, the court should have granted a new trial as to it, for that reason.</p>

<p>Partition. Before Judge Bell. Clayton superior court. May 20, 1920.</p>

<p>1. Section 729 of the code of the City of Atlanta, which provides that “ it shall be unlawful for any person or persons, or corporation, to construct, erect, or build a house to be used as a private sanitarium, hospital or boarding-house, or other house of like character, wherein patients are kept, and medical or surgical treatment is given or performed,” except in the manner therein provided, is within the police power delegated to the municipality, as provided by section five of the act of the General Assembly approved Dec. 2, 19.pl (Acts 1901 p. 312), amending the charter of the City of Atlanta, whereby power is given to the mayor and general council “ to control, regulate, and in its discretion prohibit the erection and maintenance of sanitariums, boarding-houses, and other similar places in residence portions of the city.”</p> <p>2. A building alleged to be used - as a “ tourist and health resort ” is prima facie included in that class described as “a house to be used as a private sanitarium, hospital- or boarding-house or other house of like character, wherein patients are kept and medical or surgical treatment is given,” as employed in section 729 of the code of the City of Atlanta.</p> <p>3. An act of the legislature, in general terms conferring power to control, regulate, and in its discretion prohibit the erection of buildings of the character mentioned in the first note, “without prescribing the bounds of such discretion, will not ipso facto render the grant of power void as being an effort to confer arbitrary power, but will be treated • as authorizing the municipal authorities to exercise a reasonable discretion.”</p> <p>4. The ordinance of the city of Atlanta (city code, § 729), construed as authorizing the mayor and city council, under the police power conferred by the General Assembly, to exercise a reasonable discretion in permitting or refusing to permit the erection of the building sought by the petitioner, is not violative of the fourteenth amendment to the constitution of the United States (Civil Code, § 6700), which guarantees due process and equal protection of the law; nor is it violative of the due-process clause of the constitution of this State, art. 1, sec. 1, par. 3 (Civil Code, § 6359).</p> <p>5. An arbitrary or capricious exercise of such power would be an abuse of discretion and in conflict with the fourteenth amendment to the constitution of the United States, and also in conflict with the clause of the constitution of this State which declares that no person shall be deprived of life, liberty, or property without due process of law. In any such case the injured party may resort to the courts for relief. Freund on Police Power, §§ 142, 158.</p> <p>6. It is settled that the powers of a municipal corporation in this State are limited to those expressly granted by the General Assembly or conferred by necessary implication. Franje v. Atlanta, 72 Ga. 428 (1-5); Peginis v. Atlanta. 132 Ga. 302, 304 (63 S. E. 857, 35 L. E. A. (N. S.) 716).</p> <p>7. The allegations of the petition, accepted as true when considered on general demurrer, set out a cause of action showing an abuse of discretion on the part of the mayor and council in refusing to issue the permit sought by the petitioner. It was error, therefore, to sustain the general demurrer to the petition. The judgment dismissing the petition affords no basis for a ruling by this court on the special demurrer.</p>

<p>Complaint for land. Before Judge Thomas. Thomas superior court. July 24, 1920.</p>

<p>Partition. Before Judge Mathews. Bibb superior court. May 13, 1920.</p>

Before Judge Mathews. Bibb superior court. August 18, 1920. Mrs. Julia Gilbert filed her petition against Thomas Gilbert, alleging, that they had been husband and wife and lived together as such for thirteen years; that two children were born of this marriage, one being 15 years of age and the other 13 years of age at the time of the filing of this petition; that on August 31, 1917, the marriage relations between plaintiff and defendant were dissolved by a verdict and decree…

<p>Construction of will. Before Judge Summerall. Coffee superior court. July 31, 1920.</p>

<p>Probate of will. Before Judge Hodges. Franklin superior court. August 23, 1920.</p>

<p>Ejectment. Before Judge Hardeman. Emanuel superior court. October 11, 1920.</p>

<p>Claim. Before Judge Eve. Worth superior court. October 5, 1930.</p>

<p>No error requiring a new trial appears in the judge’s instructions to the jury on the trial of issues raised by caveat to tlio probate of a will, or in the omissions and refusals to charge, assigned as error by the caveators; and the evidence was sufficient to authorize the verdict in favor of the pi-Qpounders.</p>

<p>No error requiring a new trial appears in tire judge’s instructions to tlie jury, or in omissions to charge, on the trial of issues of a grantor’s mental capacity to make a deed, and of fraud and undue influence in obtaining its execution; and the verdict was supported by evidence.</p>

<p>Complaint for land. Before Judge Blair. Cobb superior court. October 4, 1920.</p>

<p>Injunction. Before Judge Highsmith. Appling superior court. October 30, 1920.</p> <p>Weaver and Blair sought to enjoin against the sale of their property under executions levied thereon for the purpose of collecting a tax to supplement the school fund paid by the State in Mount Vernon school district, alleging, that at the election held for the purpose of deciding whether a tax for this purpose should be levied two persons voted illegally, one of them not having been a resident of the district for the length of time required by statute, and the other not having paid his taxes in accordance with the law; that, excluding these two votes, less than two thirds of the votes cast at said election were favorable to the levy of the tax; that in consequence the levy of the tax .was illegal and void; that the threatened sale would constitute a cloud upon their title; and that they were without an adequate remedy at law. The persons named as defendants were the individuals holding the offices of superintendent of public schools, sheriff, tax-collector, and ordinary of Appling County, and composing the board of county commissioners and board of education, and the trustees of Mount Vernon local school district. The answer filed by the defendants asserts that the plaintiffs had, previously to the filing of this petition, filed a petition “ covering the same facts and same issues,” and, after obtaining a temporary restraining order, had withdrawn their case; and that they are therefore not entitled to a second injunction.</p> <p>At the hearing the plaintiffs introduced evidence to the effect that E. J. Barber, one of those voting for the tax, had not resided in the school district for six months prior to the election; also, that J. S. Todd, who voted for the tax, resided in the district during 1917 and 1918, and had not made any tax returns and had not paid tax for the year 1917. The defendants introduced evidence to the effect that the names of these two voters appeared upon the list of those entitled to vote at said election, regularly prepared and furnished by the registrars to the managers of the election, and that Todd was not returned as a tax defaulter. Todd testified by affidavit, that he had resided in the county since 1917; that he had made no tax return; that in the year 1919 he made enquiry of the tax-collector as to taxes due by him and was informed that he owed only a school tax, which was paid, and that he had paid no other taxes except a road tax.</p> <p>The court granted the interlocutory injunction, and defendants excepted. There is attached as an exhibit to the bill of exceptions a copy of the petition upon which the defendants allege a restraining order had previously been gTanted, and which was subsequently dismissed, the attorney for plaintiffs executing the following writing: “Plaintiffs hereby dismiss the within and foregoing suit in the above-stated case and proceeding, without in'any manner prejudicing their rights to recommence same upon payment of costs.” The parties in the present petition are the same as were named in the first petition, and the facts alleged in both petitions are substantially the same.</p>

<p>Temporary alimony, etc. Before Judge Park. Wilkinson superior court. November 4, 1920.</p>

<p>' Indictment for murder. Before Judge Searcy. Spalding superior court. November 27, 1920.</p>

<p>1. The description of the land sued for considered, the court did not err in overruling the defendant’s motion to dismiss the petition on the ground that “ the plaintiff' had not described the premises with sufficient certainty as. in the event of a recovery by the plaintiff and the issuance of a writ of possession thereon, the sheriff could deliver possession in accordance with its mandate.”</p> <p>2. The general rule is that when a husband conveys property to his wife, or directs or permits the title to be taken in the name of his wife to property purchased with his money, or to which he would have a right to demand that title be made to him, the law raises a presump- , tion of a gift; and this presumption remains until it is shown affirmatively that there was no intention to give on the part of the husband.</p> <p>(a) The charges given by the court did not so narrow the range of inquiry by the jury as to exclude from their consideration circumstances tending to show the agreement and understanding between the husband and wife as to the purpose for which the deed in controversy was executed.</p> <p>3. That the court did not charge the jury specifically and expressly that they might consider “ any antecedent or contemporaneous [fact] or facts so immediately following the transfer as to be considered a part of the same transaction, if it be found there were such facts, and that they did constitute a part of the same transaction, in determining whether or not the transfer was intended as a gift,” was not error, it not being alleged that the court failed to properly instruct the jury that they were the judges of the facts of the case. Had the defendant desired the specific instruction just stated, he should have requested the same in writing.</p> <p>4. The charge of the court sufficiently covered the subject of the rights and interests of the defendant in the land in case the jury returned a verdict finding that the deed of conveyance to the wife of the defendant was a security, deed.</p> <p>5. Exception is taken to certain remarks made by the court “ during the course of the trial.” From this recital and the character of the remarks made, it is assumed that the remarks were made to counsel touching certain questions of law and fact. And where statements are made to counsel in this way and not as a portion of the court’s charge to the jury, they will not be good ground of a motion for new trial, unless a motion for a mistrial was made, though the remarks contained an expression of opinion which would not be permissible in a charge to the jury. Moore v. McAfee, 151 Ga. 270 (106 S. E. 274).</p> <p>6. It is not a ground requiring the grant of a new trial that the court refused to permit the defendant to answer the question, “ How much is that place worth now?” where the court permitted him to state the amount of the improvements that he .had placed on the land; “ so as to indicate whose possession it was.”</p> <p>7. The grounds of the motion containing general criticisms of the charge, alleging that they are vague, indefinite, and misleading, and do not sufficiently present the contentions of the defendant, do not appear to be well taken when the entire charge is considered.</p>

<p>Petition for mandamus. Before Judge Ellis. Pulton superior court. January 19, 1921.</p>

<p>Petition for injunction. Before Judge Dickerson. Cook superior court. November 13, 1920.</p>

<p>1. In order for a receiver of a banking corporation to bring suit for the use and benefit of the depositors of the bank to recover damages from the directors of the corporation for alleged negligence in failing to exercise ordinary care and diligence in the discharge of their duties, it is necessary that he be specially authorized so' to do by order of the court; and if he brings suit and fails to show such authority, he can not recover.</p> <p>2. Sections 18 and 19 of the act of 1870 (Acts 1870, pp. 139 and 148), which sought to incorporate the Bank of Southwestern Georgia, are repugnant to art. 3, see. 4, par. 5, of the constitution of 1868 (Code of 1873, § 5056), which provided: “Nor shall law, or ordinance pass, which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof,” for the reason that it is not competent for the legislature to enact a law incorporating two distinct corporations as in the act of 1870 it sought to do. Even if the act of 1870 were valid as incorporating the Bank of Southwestern ■ Georgia, by its terms the act was continued in force for the term of thirty years from and after the organization of the bank (which was in 1877); and no renewal of the charter of the bank having been had before the bringing of the present suit in 1920, such suit was without authority of law.</p> <p>3. Even if the General Assembly had no authority in 1870 (Acts 1870, p. 139) to enact a law incorporating two separate and distinct corporations in one act, yet where such an association actually organized and existed under such colorable authority and used the rights claimed to be conferred by such charter and did business under it as a corporate body, the directors of such organization, who acted as such, will be estopped from denying the corporate existence of such organization as against the corporation itself, its receiver, and third persons who have dealt with it as a corporation.</p> <p>4. In so far as the petition alleges a cause of action because of loans made by .directors in violation of the law and the express terms of the charter, the date of the acts alleged as a basis of recovery was more than four years before the bringing of tlie suit, and it is barred by the statute of limitations. In so far as the case rests upon a failure to collect the outstanding loans, no fact's are alleged showing such negligence or omission of duty on the part of the directors as would render them liable. The general charge that they were negligent in this respect is a mere conclusion of the pleader, and is insufficient to show liability.</p> <p>5. The allegation that in a certain year dividends had been paid in excess of the earnings for that year shows no liability, in the absence of allegations that dividends were improperly paid, or were not paid out of earnings of the bank made during prior years.</p> <p>6. The petition did not set out a cause of action, and the court did not err in sustaining the demurrer and in dismissing the action.</p>

<p>Questions certified by Court of Appeals (Case No'. 11645).</p>

<p>1. A petition addressed to the judge of the superior court, when it should be addressed to the superior court, may be amended by correctly stating the address.</p> <p>2. The omission of a prayer for process is curable by amendment.</p> <p>3. The petition as amended was not subject to general demurrer.</p> <p>4. A grant of temporary alimony and counsel fees, held no abuse of discretion.</p>

Equitable petition. Before Judge Meldrim. Chatham superior court. June 8, 1920.

<p>Equitable petition. Before Judge Bell. Fulton superior court. October 20, 1920.'</p>

<p>The evidence not presenting the theory of voluntary manslaughter as .related to mutual combat, it was not error to omit that principle of law from the charge to the jury.</p>

<p>Complaint. Before Judge Hodges. Clarke superior court. May 29, 1920.</p>

<p>Under a conveyance of land in trust for the use of E. and her children during her life and the life of her husband, and, after the death of both E. and her husband, “ then to such children as they may leave surviving them, share and share alike,” upon the death of E. (her husband having previously died) their sole surviving child took an estate in fee in all the land, and no interest was acquired by heirs of their deceased child, a son who had survived his father but not bis mother.</p>

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

Equitable petition. Before Judge Gower. Dooly superior court. July 10, 1920. On December 14, 1892, W. A. Jackson, died intestate, seized and possessed of certain land, the subject-matter of this- suit. He was survived by his wife, Mrs. Mollie Jackson, and by four children (all of whom were at the time minors), to wit, W. A. Jackson, S. A. Jackson, S. W. Jackson, and Oswell Jackson.

Injunction. Before Judge Hammond. Eichmond superior court. August 31, 1930. Jacob Phinizy brought his petition against O. B. Palmer, sheriff of the City of Augusta, and J. C. Lamar and W. J. Cooney, and prayed that the defendants be enjoined from enforcing certain tax executions issued by the City of Augusta for the years 1913-1918, inclusive, the total amount of said taxes being the principal sum of $3700, “.penalties” $370, and costs $17.50, aggregating $4,087.50.

<p>1. Under tlie former rulings by this court in the present case (148 Ga. 273; 149 Ga. 066), the trial court did not err in overruling the demurrer on the ground of insufficiency of description of the land referred to in the contract of which specific performance was sought. The former decision having fixed the law of the case, tlie request to overrule it is denied.</p> <p>2. The court did not err in overruling the other grounds of demurrer. The petition set forth a cause of action.</p>

<p>While all motions for continuance are addressed to the sound discretion of the court and his discretion will not be disturbed unless there is an abuse thereof, in this case the judgment refusing a continuance must be reversed; for, under the circumstances, it was impossible for counsel, in the short time allowed, to make the investigation of the facts which-it. was their duty to make in order to make preparation for a proper defense of their client.</p>

Action for specific performance. Before Judge Wilson. Mitchell superior court.

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

<p>Equitable petition. Before Judge Terrell. Troup superior court. November 1, 1920.</p>

<p>Equitable petition. Before Judge Meldrim. Chatham superior court. August-13, 1920.</p>

Petition for injunction. Before Judge Pendleton. Eulton superior court. June 16, 1920. J. L. Eiley, A. W. Malone, and George W. Price, doing business as the firm of J. L. Eiley & Company are licensed fire-insurance agents, and have been engaged in the insurance business in Atlanta for many years. They value their established business at $50,000.

Equitable petition. Before Judge Tarver. Murray superior court. July 24, 1920. Miss Sybil Harris, Mrs. Etta Phillips (formerly Etta Harris), and Mrs. Mattie Henry (formerly Miss Mattie Harris), filed an equitable petition against E. W. Shelton, E. W. Shelton as guardian for Wilford Shelton and Mrs. Alline John Shelton (his children by a second marriage), and S. T. Harris as administrator of the estate of Miss Mattie Shelton, deceased.

<p>Complaint for land. . Before Judge Mathews. Bibb superior court. June 28, 1920.</p>

<p>Questions certified by Court of Appeals (Cases Nos. 11582, 11583). '</p>

<p>Question certified by Court of Appeals (Case No. 11707).</p>

<p>Complaint for land. Before Judge Blair. Cherokee superior , court. December 29. 1920.</p>

<p>Questions certified by Court of Appeals (Case No. 11113).</p>

<p>The accused in all criminal cases less than capital felonies, before indictment and trial, is entitled to bail as a matter of right and not as a matter of discretion.</p>

<p>One adjudged guilty of a misdemeanor and sentenced to pay a fine of fifty dollars “ and the costs of this prosecution,” and in default of the payment thereof to he confined in the chain-gang for á stated term, can not he held in custody or compelled to labor on the chain-gang for fees due officers of court for services which they were required by law to render in proceedings instituted by him, subsequently to his conviction and sentence, to review and reverse such judgment and sentence, though liable to judgment for such fees as costs.</p>

<p>1. Where on the trial of one accused of rape it is made to appear to the court that the female alleged to have been raped, on account of her youth and highly nervous condition, is unable to give her testimony before a crowd of spectators, and that the due administration of justice is thereby impeded, the trial judge may clear the courtroom, during the examination of the female, of all persons except court officials, the jurors on the panel, the defendant, his counsel, his father, brother, and two sisters, the prosecutrix, her counsel, relatives of the prosecutrix, disinterested members of the bar, and' representatives of the press, without infringing upon defendant’s right to a public trial, as guaranteed by article 1, section 1, paragraph 5, of the constitution of this State, or without violating the defendant’s right to due process of law as guaranteed by the 14th amendment to the constitution of the United States.</p> <p>(а) Civil Code § 5885, which provides. “During the trials in the superior courts, and all other courts and trials occurring in this State, of any case of seduction or divorce, or other ease where the evidence is vulgar and obscene, .or relates to -the improper acts of the sexes, and tends to debauch the morals of the young, the presiding judge shall have the right, in his discretion and on his own motion, or on motion of plaintiffs or defendants or their attorneys, to hear and try the said ease after clearing the court-room of all or any portion of the audience.” as construed and applied by the trial judge in the case at bar, is not violative of article 1, section 1, paragraph 5, of the constitution of this State, which declares that “ Every person charged with an offense against the laws of this State . . shall have a public . . trial.”</p> <p>(б) The provision of the fifth amendment to the constitution of the United States, which declares that “ No person shall be deprived of life, liberty, or property, without due process of law,” and the provision of the sixth amendment to that constitution, which declares that “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed,” etc., refer to powers exercised by the government of the United States, and not to those of the individual States.</p> <p>2. The objection to the evidence of the female alleged to have been raped, that she did not indirectly consent to sexual intercourse, the objection being that the witness can not draw a conclusion without stating the facts upon which the same is based, is without merit where it appears that the witness had already stated the facts fully upon which her statement was based.</p> <p>3. More elaborate instructions, if desired, on the question of consent, should have been specifically requested, in view of the general charge and the defendant’s contention that he did not have carnal knowledge of the female alleged to have been raped, either with or without her consent.</p> <p>4. After the defendant has made his statement and rested his case, the admission of evidence not in rebuttal of defendant’s statement is a matter in the sound discretion of the court.</p> <p>(a) The evidence examined and held to be in rebuttal of the defendant’s statement.</p> <p>5. Where a charge of an offense of graver character includes (without additional averment) a minor offense, it is the duty of the trial judge to instruct the jury upon the law applicable to the lesser offense, where the evidence, under any view thereof, will authorize a conviction of the lesser offense. Where, however, the evidence, if credible, proves the completed offense as charged in the indictment, the failure of the judge, without appropriate request, to instruct the jury upon the law applicable to the lesser offense is not cause for new trial, though the jury would have been authorized to convict of the lesser offense in view of the defendant’s statement.</p> <p>(a) The evidence examined and held to prove, if credible, the offense of rape as charged in the indictment, and sufficient, in connection with other evidence in the reeord, to support the verdiet.</p>

<p>Claim. Before Judge 'Worrill. Early superior court. October 9, 1920.</p>

Injunction. Before Judge Pendleton. Fulton superior court. November 13, 1920. Prior to and on November 6, 1908, the Atlanta Banking and Savings Company (for convenience hereinafter referred to as the banking company) owned a tract of land in the city of Atlanta fronting 810 feet on Ponce de Leon avenue and extending south . from said, avenue 500 feet, more or less, to Blue Bidge avenue.

Question certified by Court of Appeals (Case No. 11602). The Court of Appeals certified to the Supreme Court the following question: “ In attachment proceedings to recover an indebtedness evidenced by promissory notes, is there a day which corresponds to the “ return day ” as contemplated in section 4252 of the Civil Code of 1910 ?

<p>Injunction. Before Judge Dickerson. Cook superior court. July 26, 1920.</p> <p>Littlefield brought a suit for damages agaipst the Town of Adel, and procured judgment. Upon refusal of the town officials to make payment of the amount of the execution, he obtained mandamus absolute, and upon their refusal to comply therewith the defendants were adjudged in contempt. They brought the contempt case to this court' and while it was pending here an election was held and the defendants who had been adjudged in contempt were succeeded by other officials. This court affirmed the judgment of the court below. The defendants thus adjudged in contempt (who had been the acting mayor, clerk and treasurer, and councilmen of the town) filed an equitable petition praying injunction to prevent the execution of the attachment for contempt, for the reasons: (a) that petitioners never, while they were officials of the Town of Adel, had in their hands funds with which they could legally pay said judgment; (i) because at the time the judgment of the court below, holding them to be in contempt, was affirmed by the Supreme Court, they had each and all gone out of office and had no control over the funds belonging to the Town of Adel, and were powerless to comply with the order requiring them to pay over the money; (c) because the officials of the city who had succeeded the petitioners did not then have in their hands funds from which the payment could legally be made, even if petitioners could control such funds; (d) because when petitioners were succeeded in office by others, the mandamus proceeding and the attachment for contempt brought thereon immediately became void and of no effect so far as petitioners were concerned. Littlefield answered and pleaded specially that all the facts, matters, and issues sought to be raised by the petition had' been finally adjudicated adversely to the petitioners, and that they were therefore estopped from litigating the matter further.</p> <p>Upon interlocutory hearing -the court made the following judgment : “ The sheriff of Cook County, Georgia, is hereby restrained and enjoined from executing the process for contempt referred to in the above petition against those officers whose commission as officers of the Town of Adel has expired and who are the plaintiffs in the above-stated case.” Error is assigned on this judgment, on the ground that it is contrary to the pleadings, the evidence,' and the law of the case, because all the issues raised by the petition for injunction had been finally adjudicated adversely to the plaintiffs, and because the court was, for that reason, without jurisdiction to grant rule nisi or injunction. In the brief of counsel for the plaintiffs in error it is stated that “the only new matter” involved in this record is the question that pending the appeal from the judgment of the court below, holding-the defendants in contempt, “an election was held in the Town of Adel, in which an entirely new and different set of officers, except the clerk and treasurer, were elected'by the people, and that the clerk and treasurer’s term of office expired at the time the new mayor and councilmen were installed in office, and that he was thereafter re-elected, which made him a new and different officer; so that the town was operating with an entirely new set of officers.” In the brief of defendants in error it is stated: “The injunction was sustained solely upon the' ground, as therein expressed, that defendants in error, the ex-mayor and councilmen and clerk and treasurer of the Town of Adel, had already gone out of office and their successors elected and qualified.” The order adjudging the petitioners in contempt was passed by Judge Thomas of the Southern Circuit, to which Berrien County containing the Town of Adel was at the time attached. Subsequently the County of Cook was created, with Adel as the county site, and attached to the Alapaha Circuit. The interlocutory injunction was granted by Judge Dickerson of that circuit. The terms of office being served by all of the petitioners at the time they were originally adjudged in contempt for the refusal to pay over the funds had expired before the judgment of this eo'urt, affirming the judgment of the court below, was made the judgment of that court. Other persons had been elected to each of the offices, except in the case of the clerk and treasurer, who was re-elected.</p>

<p>Equitable, petition. Before Judge George L. Bell. Fulton superior court.* October 5, 1920.</p>

Equitable petition. Before Judge Meldrim. Chatham superior court. September 27, 1921. The petition of the State of Georgia and the County of Chatham alleged in substance as follows: On or about December 30, 1918, the directors of the Merchants National Bank of Savannah entered into a tentative agreement with the Citizens & Southern Bank, a corporation of this State, for the liquidation of the affairs of the first-named bank.

<p>1. “The writ of habeas corpus can not be substituted for a motion for new trial, writ of error, or other remedial procedure, or be used as a remedy for the review of alleged errors in the trial court.” Especially is this true where the' issues raised in the habeas-eorpus case are the same as raised and passed upon at the trial, and no exception is taken thereto.</p> <p>2. Where one was indicted under a statute which by demurrer was assailed as unconstitutional and void, and the demurrer was overruled and no exception was filed to such judgment; and where the defendant on conviction and sentence filed a motion for new trial, which he subsequently voluntarily withdrew; and where later he presented a petition for habeas corpus, attacking the statute under which the indictment was found, on the same grounds as set up in the demurrer to the indictment, the court did not err on the hearing, under the pleadings and the evidence, in remanding the defendant to the custody of the officer having him in charge.</p>

<p>Injunction. Before Judge Sheppard. Tattnall superior court. March 5, 1921.</p>

<p>Habeas corpus. Before Judge Meldrim. Chatham superior court. January 8, 1931.</p>

<p>Indictment for miirder. Before Judge Searcy. Pike superior court. March 30, 1921.</p>

<p>1. The court did not abuse its discretion in refusing to reopen the case and to admit evidence offered by the accused to show that the deceased was a man of violent character, this evidence having been offered after the State and the defendant had closed and the State had offered evidence in rebuttal of the defendant’s evidence, and not being in rebuttal of any new matter brought out by the State.</p> <p>2. In view of all of the facts appearing on the trial, this court, is not reasonably convinced that on another trial there would probably be a different verdict because of the alleged newly discovered evidence.</p> <p>3. Error is assigned on the refusal of the court to rule out the evidence of a witness for the State, as follows: “That a large crowd had gathered around the scene after the homicide had been committed and tried to prevent movant from leaving the scene together with officials of the street-ear company.” The criticism was that “it did not illustrate any issue in the case.” This ground of the motion does not show error.</p> <p>4. Error is assigned on the following instruction to the jury: “You are the judges of the law and the facts, and are to render a general verdict of guilty or not guilty.” Movant complains that this charge was harmful to him, for the reason that “the charge in the indictment was that of murder and limited the jury to the consideration of this crime alone; whereas, under the evidence and the law, the crime of voluntary manslaughter was involved.” The court fully and fairly instructed the jury in regard to the law of voluntary manslaughter, and explained that under a certain state of facts, if believed by the jury, a verdict finding the defendant guilty of voluntary -manslaughter would be authorized. The exception in this ground of the motion is therefore without merit.</p> <p>5. Complaint is made that the court erred in a lengthy instruction to the jury regarding the manner of selecting jurors by jury commissioners; how they were drawn for service in the court; that they were not volunteers, but had been drafted for public service to their country as soldiers are drafted for their country’s defense; that jury trial is the , sheet-anchor of American liberty, has stood the test and strain of a thousand years, and has come down to us from our Anglo-Saxon . fathers across the seas; stressing the importance of honesty and uprightness in all relations of life, the duty resting upon them, to measure up to these high principles, the sanctity of their oaths as to the questions that were propounded to them on the voir dire, and the oath administered upon being sworn to try the case, etc. The criticism is “that this portion of the charge was harmful to him, because it was argumentative and calculated to unduly influence the minds of impartial jurors.” While subject to some criticism, at least that it was not indispensable to the issues of the case, we cannot say that the charge contained any misstatements of the law, or untruths, or misconceptions in regard to the moral principles under discussion. We do not think it subject to the specific criticism made by movant, and therefore it will not require a reversal of the judgment refusing a new trial.</p> <p>C. Several of the grounds of the motion for new trial complain of the instructions of the court in regard to the law of voluntary manslaughter. After a careful consideration of these grounds we are satisfied that they contain in substance a fair statement of the law on that subject, and that no error is shown. It would conserve no useful purpose to set out these grounds in full, since no new or novel question is raised. Suffice it to say that the chief criticism is that thereby the accused was deprived of his defense of justification based on the ground of reasonable fears. The jury was fully instructed in regard to the law of reasonable fears, as provided in the Penal Code, § 71.</p> <p>7. Movant insists that the court erred in instructing the jury as follows: • “The fact that a pistol, held in the hands of the prisoner at the bar, aimed at and towards the deceased, from which bullets were shot, penetrating his body and causing a wound from which he soon thereafter died, is not in fair debate in this case. The pistol was held by him. and its trigger pulled by. him, and the man is dead as a consequence.” Under a fair construction of all of the evidence and the prisoner’s statement, we think these facts are undisputed, and therefore the statement of them by the court was not error. Atkinson, J., dissents.</p> <p>8. The remaining grounds of the motion are either expressly abandoned, or are without merit, and therefore show no cause for the grant of a new trial. The evidence authorized the verdict.</p>

<p>Motion for new trial. Before Judge Escbol Graham. Bleckley superior court. April 9, 1921.</p>

Equitable petition. Before Judge Hodges. Oglethorpe superior court. September 21, 1920. The petition makes substantially the following allegations: Prior to April 3, 1879, William Alexander contracted to purchase a certain tract of land,- but, because of advancing age and feeble health, he was unable to perform the obligations of the contract.

Equitable petitions. Before Judge Iiarrell. Mitchell superior court. June 5, 11, 1920. Sanford Miller instituted in the city court of Pelham an action for damages against the Gulf Befining Company, a corporation, and J. F. Jones, the agent in charge of the local business of the corporation. The action was founded on alleged negligence of the defendant in selling to the plaintiff gasoline on his application to buy kerosene.

<p>Petition for certiorari. Before Judge Harrell. Mitchell superior court. February 23, 1920.</p>

<p>Equitable intervention. Before Judge J. B. Joues. Babun superior court. August 26, 1920.</p> <p>On April 1, 1903, W. J. Green and S. S. Hall purchased a described lot of land in Babun county, and on April 3 gave their .note to George L. Prentiss for $4500, which sum they borrowed from him to be used in paying for the land, and to secure the debt executed to him a mortgage on the premises. On the same clay Green and Hall, for an expressed consideration of $4500, conveyed to Prentiss a one-third undivided interest in the land, subject to the mortgage. On February 4, 1904, a written agreement was executed between Green and Hall, as follows: "This agreement made this the fourth day of Feby., 1904, between W. J. Green of the County oí Babun, State of Georgia, party of the first part, and S. S. Hall of the County of Babun, State of Georgia, party of the second part, witnesseth: That the party of the first part, for and in. consideration that the party of the second part shall execute to the party of the first part a deed to his one-third undivided interest in lot of land number 44 in the first land district in said county and State, agrees: 1. That as soon as said lot number 44 in said district and county, or any part thereof, may be sold, the proceeds shall be applied to pay off a certain mortgage note which George L. Prentiss holds against W. J. Green and S. S. Hall for the sum of four thousand and five hundred dollars. 2. After said note is fully paid off, the said party of the first part shall pay to the party of the second part, from the proceeds of said sale, one third of the amount left after paying off said note, and one third of all future amounts derived from said sale, until the party of. the second part shall have received the amount of five thousand dollars, provided that in no event shall the party of the second part receive more than the said sum of five thousand dollars from the proceeds of the said sale.” This agreement was signed under the hands and seals of the parties. On the same day Hall, for the expressed consideration of $15,000, conveyed by -warranty deed, subject to the Prentiss mortgage, a one-third undivided interest in the land to Green. This deed recited: “the grantee agreeing.to satisfy said mortgage from the proceeds of the sale of said lot number 44 and first district.” On June 13, 1910, Prentiss transferred the note and mortgage to Henry Talmadge & Company, and on February 27, 1911, Talmadge & Company instituted statutory proceedings against Green and Hall to foreclose the mortgage. Green filed an 'answer setting up an equitable defense, in which he claimed, among other things, that in a settlement with Prentiss the latter had agreed to pay off the mortgage. Prentiss was thereupon made a party defendant. Hall filed no plea or answer. Green died pending the suit, and the administratrix of his estate, his widow, was made a party in his stead. On the trial, February 28, 1917, a verdict was rendered as follows: “We, the jury, find for the plaintiff, Henry Talmadge and Company, against the defendant George L. Prentiss as endorser and transferee [transferor] of the note sued on, the sum of forty-five hundred ($4,500.00) dollars principal, thirty-four hundred and thirty-four dollars and thirty-seven cents ($3,434.37) interest to date, seven hundred and ninety-three dollars and forty-four cents ($793.44) attorney’s fees, with costs of suit. We further find that George L. Prentiss is the owner of one undivided one-half interest in the lands covered by the mortgage sought to be foreclosed in this suit, and that said mortgage be foreclosed against said undivided one-half interest. We further find that the estate of W. J. Green is the owner of one undivided one-half interest in said land, which is not subject to the lien of said mortgage. We further find that Charles A. Eafter has no interest in said land.” On the following day, and at the same term of the court, Hall presented his intervention setting up the contract between him and Green, which is quoted above, alleging that no part of the sum of $5000 due him thereunder had been paid, and that “inasmuch as all the parties as well as said property is now before the court in this case for an equitable adjustment of the rights of all the parties, he therefore prays that his lien be set up in the formation of the decree in this case, and that his said-lien for the sum of $5000 be decreed as a purchase-money lien against the administratrix of said W. J. Green, and against said property, to be paid out of the proceeds of a sale of said W. J. Green’s interest, and for such other relief as he may be entitled to in the premises. And further, that this case be kept open until after said sale.” The court by order allowed the intervention, and ordered that the case be kept open until after the sale of the property and the final adjudication of the rights of the parties. Mrs. Green, administratrix, excepted pendente lite to the order granted on the intervention. On May S3, 19.18, a decree was entered in accordance with the verdict. By agreement of counsel for all parties a receiver was appointed to sell the entire property, the interest of both plaintiffs and of Green’s estate. Mrs. Green, the administratrix of the estate of her husband, was appointed receiver. The property was sold by the receiver in November 1919, for the sum of $15,000, and she received the proceeds of the sale. In August, 1920, Hall’s intervention came on for trial, and the case was by consent submitted to the court for decision without a jury. The judge rendered a judgment in favor of Hall for $5000, less some deductions for costs, to be paid out of the sum of $7500, which was one half of the proceeds of the sale belonging to the estate of Green. Mrs. Green, as administratrix, excepted to the judgment, and assigned error also upon her exceptions pendente lite.</p> <p>Defendants in error moved in this court to dismiss the writ of error, on the ground that neither Prentiss nor Charles A. Eafter, both of whom were alleged to be substantial parties defendant, was served with the bill of exceptions, nor had they acknowledged service thereon.</p>

<p>1. The court did not err in withdrawing from the jury the question whether the mind of the testatrix was unduly influenced in making the will, as there was no evidence tending to show that it was.</p> <p>(a) Nor was the language of the court in withdrawing such issue error, as being “ an undue expression of opinion on the execution of the will.” There was no evidence to authorize a finding that the will was not executed according to the provisions of the Civil Code, § 3846.</p> <p>2. Nor was it error to exclude evidence offered as to the general reputation of the testatrix as being addicted to a drug habit. ■</p> <p>3. There was ample evidence to authorize the jury to find that the mental capacity of the testatrix at the time the will was executed was such as to enable her to have a decided and rational desire as to the dispositión of her property.</p> <p>4. A new trial was properly refused.</p>

Petitions for injunction, and for mandamus. Before Judge R. C. Bell. Calhoun superior court. March 8, 1921.

<p>An application for an order directing the clerk of the superior court ol J. county to transmit to the superior court of G. county an indictment for murder, returned in J. county, in order that appropriate action thereon might he taken in O. county, and that meanwhile the applicant be remanded to the custody of the sheriff of C. county, made a ease involving change of venue; and under the constitutional amendment of 1910, relating to jurisdiction of the Supreme Court and the Court of Appeals, a writ of error from denial of such application was returnable to the Court of Appeals.</p>

<p>Under the pleadings and the evidence in this ease the court erred in granting an interlocutory injunction and appointing a receiver.</p>

<p>Indictment for murder; change of venue. Before Judge Strange. Jenkins superior court. April 13, 1931.</p>

Processioning. Before Judge Eve. Irwin superior court. August 17, 1920. In May, 1919, the ordinary of Irwin County appointed Moses Deniels, George Grantham, and John Lisenby as land processioners of the 1529th Georgia militia district of that county.

Equitable petition. Before Judge George L. Bell. Eulton superior court. November 12, 1920. This is an action brought by Mary J. Eubanks and Clara E. Zellars against the McClure .Realty and Investment Company, for cancellation of a lease contract as to certain described realty, and for recovery of the premises and mesne profits.

<p>1. Where an equitable petition alleged that the plaintiff was the owner of land on both sides of and abutting a navigable river, and that the county authorities on each side of the stream joined in proceedings to condemn ■ a certain amount of plaintiff’s land under the Civil Code (1910), § 5206 et seq., for the purpose of building a public free bridge across the river, and laying out public roads on each side thereof as approaches thereto, and where there was no compliance with § 640 et seq., of the Civil Code of 1910, and the plaintiff prayed for injunction, damages, etc., the court did not err in overruling a general demurrer to such petition.</p> <p>(a) A court of equity, having jurisdiction of the case for the purposes of the injunction, will retain jurisdiction in order to ascertain whether damages, if any, have been sustained by the plaintiff, and that complete equity may be done, and in order to avoid a multiplicity of suits, etc.</p> <p>2. Where one has land abutting on both sides of a navigable river on which she maintains and operates a public toll ferry, and has other land adjacent thereto which is sought to be condemned by the county authorities of two counties, each of which lies upon opposite sides of the river, and the owner has filed an equitable petition against both the counties jointly, to enjoin them from proceeding <(to condemn her land under § 5206 et seq. of the “Civil Code of 1910, and for the recovery of damages by reason of the taking of her land for the purposes of building roads thereon and building a public free bridge across such stream, and the approaches thereto; it is proper, in order to arrive at just and adequate compensation in determining the value of such adjacent land taken for the bridge and roads, that its prospective value as a bridge site and its present value as a ferry site may be taken into the calculation.</p>

<p>1 Where employers, whose businesses require the employment of a', number of workmen skilled in a particular trade, determine to operate their businesses on non-union bases and to that end adopt a policy not to employ members of the union, and do employ non-union workmen under a contract, terminable at will, providing that such employment shall immediately cease if said employees become members of the union, equity will protect by injunction such contractual status as against strangers and striking former employees, who, knowing such status, conspire to coerce the employers to abandon the policy of employing only non-union labor and to cause a breach of the aforesaid contractual relation, and who endeavor by threats, intimidation, and improper persuasion to deprive such non-union employees of the exercise of their own freedom of will, and thus induce them to violate their contracts of employment by joining the union, and thus force the unionizing of the plants or render it impossible to continue the operation of the business.</p> <p>2. Under the pleadings and the evidence the court did not abuse its discretion in granting the interlocutory injunction.</p> <p>(a) The interlocutory injunction, properly construed in connection with the evidence, enjoins ouly those acts which we have held in the opinion to be unlawful.</p> <p>3. Exceptions to the admission of evidence, to avail the plaintiff in error here, should show the objections made to the admission of the evidence or the grounds upon which a motion to rule out the same, if admitted, was based, and should also set forth in connection with the exception itself the evidence alleged to have been illegally admitted, so that this court would not be compelled to examine the brief of evidence in order to ascertain the evidence alleged to have been illegally admitted.</p>

Equitable petition. Before Judge Wright. Walker superior court. August 17, 1920. This case was brought by the City of La Fayette, N. E. Foster, C. L. McCall, and M. S. Jackson against the County of Walker and its Board of Commissioners of Roads and Revenues, and J. N. Tate and S. F. Evans.

<p>1. Under the Civil Code (1910), § 4497 all actions to recover damages for personal injuries must be brought within two years after the right of action accrues.</p> <p>2. Under the Federal control act (Fed. Stat. Ann. 1918 Supp. p. 757) all actions at law or suits in equity can be brought against common carriers under Federal control as theretofore provided by law; and no defense can be made thereto on the ground that the carrier was an instrumentality or agency of the Fede.al Government.</p> <p>3. Section 206 (f) of the act of Congress passed February 28, 1920 (Fed. Stat. Ann. 1920 Supp. p. 79), which provides that “The period of Federal control shall not be computed as a part of the periods of limitations in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to Federal control,” applies only to Federal courts.</p> <p>4. The court erred in overruling the demurrer to the petition.</p>

<p>Equitable petition. Before Judge Thomas. Thomas superior court. October 20, 1920.</p>

Equitable petition. Before Judge George L. Bell. Fulton superior court. November 22, 1920. Mrs. Mary J. Rucker bequeathed to her sister, Martha A. J. Powell, twenty thousand dollars “ during her natural life, she to enjoy the income from the same,” with the further direction that. at her death said amount, with accumulations, if any, to be equally divided between her children.” Mrs. Powell, the life-tenant, died in June, 1917, subsequently to the death of Mrs. Rucker.

<p>1. An attorney at law lias no authority to bind his client by a compromise agreement resulting in a consent judgment in direct opposition to the instructions of his client, and with the knowledge of the adverse party of such, violation of instructions.</p> <p>2. The client can not by affidavit of illegality, go behind the consent judgment so entered, but such judgment may be set aside upon proper proceedings therefor, duly commenced.</p>

<p>“ In babeas-corpus cases for tlie custody of a minor, the paramount consideration is the welfare and happiness of the minor, and in determining that the trial court is vested with a large discretion.”</p> <p>The evidence in this case examined, and held to show no abuse of discretion by the trial court in awarding the custody of the minor to the defendant, the father of the minor.</p>

<p>1. When an extraordinary motion for new trial in a criminal ease is made in term, upon grounds which were not known to the movant or his counsel before the convening of the court, and the judge entertains the motion, grants a rule nisi thereon, and the solicitor-general acknowledges service of the motion and nisi, expressly waiving “ all other and further service or notice,” and is given twenty days’ notice of the motion and of the grounds thereof before final hearing, the judgment overruling the motion and denying the new trial will not be affirmed upon the ground that the movant aid not give to the opposite party .twenty days’ notice of his intention to make the motion.</p> <p>2. When in a criminal ease, after verdict, either in an original motion or an extraordinary motion for new trial, an attack is made upon a juror upon the ground that he was not impartial, the trial judge occupies the place of a trior, and his finding that the juror is competent will not be reversed unless under all the facts the discretion is manifestly abused.</p> <p>(a) The statements of a juror on voir dire may be considered by the trial judge on the hearing of an extraordinary motion for new trial, where the juror died subsequently to the trial and before the making of the making of the motion.</p> <p>3. A juror in a criminal ease who is related either by consanguinity or affinity within the ninth degree to the prosecutrix, ascertained according to the rules of the civil law, is a disqualified juror.</p> <p>(а) That a'juror is related to the prosecutrix in a criminal case within the prohibited degree, unknown to the defendant until after verdict, is a good ground for an extraordinary motion for new trial.</p> <p>(б) That the juror was unaware of the relationship to the prosecutrix until after verdict will not prevent a new trial.</p>

<p>Indictment for murder. Before Judge Tarver. Bartow superior court. December 18, 1920.</p>

<p>1. The third count of the indictment alleged that the defendant did “ kill and murder one Robert Willcox by forcibly placing the said Robert Willcox in a body of water, and by forcibly keeping the said Robert Willeox under the said water, with the intent to kill him, the said Robbert Willeox, until the said Robert Willcox was then and there drowned as a result thereof.” The defendant demurred to this portion of the indictment, on the ground that it was insufficient, “ for the reason that it does not state what kind of force was used, nor in what way or manner the said force was used to place deceased in the water, nor what kind of force was used to keep the deceased Robert Willeox under the water until he was drowned,” so that defendant could be put- on notice what to defend against. Rel'd, that the judgment overruling the demurrer was not erroneous.</p> <p>2. The evidence in regard to venue was circumstantial, but was sufficient to authorize the jury to find that the jurisdiction of the case was in the county of' Wheeler.</p> <p>3. The court charged the jury as follows: “ Express malice is that deliberate intention unlawfully to take awa.y the life of a fellow creature, which is manifested by external circumstances capable of proof.” Error is assigned on this charge, on the ground that there was no evidence to warrant a charge on express malice, and that the court, in so charging on express malice, intimated to the jury and expressed an opinion to them that there had been express malice proved in said case. Reid, that the charge is in the exact language of the Penal Code, and is not subject to the criticism that it was an intimation or expression of opinion.</p> <p>4. Error is assigned on the following charge to the jury: “If, after you have examined all the evidence in this case, your minds are unsatisfied, unsettled, wavering, and you’ cannot, viewing the transaction as you do' any other ordinary transaction, come to a conclusion beyond a reasonable doubt that the defendant is guilty, you ought to acquit him; but if the evidence shows beyond a reasonable doubt that the defendant is guilty, it is your duty to convict him.” The criticism upon the charge is that “ the law in this case is not dependent upon the doctrine alone of reasonable doubt, but is dependent upon the law of circumstantial evidence; and the charge places this case on the doctrine alone of reasonable doubt, when the court should have gone further and placed the case on the doctrine, of circumstantial evidence, and charged the jury that before they would bo authorized to convict the defendant, that the evidence should exclude all reasonable doubt and every other reasonable hypothesis save that of the guilt of the accused.” Held, that the charge was not erroneous. “ Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.” Penal Code (1910), § 1013; McNaughton v. State, 136 Ga. 600 (2), 612 (71 S. E. 1038). The court fully and correctly charged the law of circumstantial evidence.</p> <p>5. Error is assigned on the following charge to the jury: “All admissions ■ should be scanned with care and should be received with great caution. An admission uncorroborated by other evidence is not sufficient to justify a conviction. To make an admission admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or the remotest fear of injury.” The criticism is that there was no evidence in the case to authorize a charge on that subject, and that an instruction by the court on that subject was an expression of “ opinion to the jury, and intimated to them that there had been a confession proved, or an admission, criminal admission in the nature of and synonymous with a confession.” Held:</p> <p>(a) There was evidence authorizing a charge on the subject of inculpatory statements or admissions.</p> <p>(b) The charge was not subject to the criticism that it amounted to an expression of opinion or an intimation that there had been a confession or admission.</p> <p>(c) The court more than once clearly and fairly submitted to the jury the issue as to whether there had been any admissions. See the next succeeding headnote.</p> <p>6. Error is assigned op the following charge: “If you find any admissions were made by the defendant, and that such admissions were made voluntarily, without being induced by another by the slightest hope of benefit or the remotest fear of injury, then you would be authorized to consider such admissions as you would any other testimony in the case; but if such admissions were not made voluntarily, or were induced by another by the slightest hope of benefit or the remotest fear of injury, you would not be authorized to consider such admissions as testimony, but should reject the same. If you find any admissions were made by the defendant and that same were made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury, and that the same is corroborated by other evidence in the case, then you may consider same along with the other evidence in determining his guilt or innocence, remembering that an admission is a circumstance which requires the aid of other testimony to authorize a conclusion nf guilt, and that an admission alone, uncorroborated by other evidence, is insufficient to justify a conviction.” The criticism is that the principles of law thus stated constitute the law with reference to confessions, and, there being no confession proved, the charge was unwarranted, inapplicable, and misleading to the jury; that it was argumentative, ambiguous, and intimated to the jury that a confession had been made, or that an admission had been made by the defendant in the nature of a confession, which was sufficiently corroborated in the same manner as the law requires confessions to be corroborated, and was sufficient to convict the defendant. Held-. “ Admissions usually refer to civil cases.” Penal Code, § 1028. When applied to criminal cases such evidence is usually termed inculpatory statements or incriminatory admissions, and these expressions are frequently used as synonymous, and must have been so understood in the instructions of the court in this case. The fact that the judge, in connection with the incriminatory admissions charged, not only that they should be received with care, but that it must appear that they were freely and voluntarily made, not induced by fear of punishment or hope of reward, was not a defect in the charge of which the defendant can complain, and was in fact favorable to the defendant, as it placed the same restriction upon criminal admissions that the statute requires be placed ripon confessions; but it did not imply in any way that the incriminatory admissions were confessions. Consequently the inaccuracy in the charge does not call for the grant of a new trial.</p> <p>7. Movant complains that the court charged the jury “ in reference to what might be termed ‘ inculpatory admissions of fact,’ and erroneously characterized and denominated them as admissions of guilt or a confes- • sion which, if corroborated, as provided in the cases of admissions and confessions of guilt, would be sufficient to convict. In other words, the eourt' charged the la.w fully with reference to confessions, but in said charge denominated confessions as an admission, and substituted the word ‘ admission ’ only in charging said law, instead of the word ‘ confession.’ ” Held, that the charge of the eourt in these respects, considered in the light of the ruling in the next preceding headnote, will not require the grant of a new trial.</p> <p>8. Complaint is made that " the eourt failed to charge the jury in reference to the corpus delicti in said ease, this being one of the main contentions of movant in the trial of the case, that the evidence did not show that there had been a homicide or that a person had in faet been killed; nor did he charge the jury the degree of proof necessary to establish the fact that a killing had taken place, or that any one had been murdered. In other words movant contends that under the evidence in the ease and position taken by counsel for defendant, that the court should have charged the jury fully with reference to the necessity of establishing by testimony on the part of the State that the dead man was actually killed, and did not die from other causes, before they would be authorized to go further in their deliberations as to who the party was doing the killing, or did the killing in the case.” Held-.</p> <p>(a) The court charged the jury that if the evidence did not prove beyond a reasonable doubt that the defendant “ did, by any one or more of the means and in the manner alleged in the indictment, unlawfully kill Robert Wilcox ” with malice aforethought, they should return a verdict of not guilty. If the defendant desired an elaboration on the subject of corpus delicti, he should have duly requested the same in writing.</p> <p>(6) The corpus delicti may he proved hy circumstantial evidence, as well as by direct evidence. In this case the jury were authorized to find that a homicide had been committed.</p> <p>9. The evidence was circumstantial, but authorized the jury to find that it was consistent with the hypothesis of guilt, and excluded every reasonable hypothesis other than that of the guilt of the accused.</p>

<p>Petition for injunction. Before Judge Highsmith. Camden superior court. June 16, 1920.</p>

<p>Injunction. Before Judge Thomas. Thomas superior court. May 24, 1920.</p> <p>In 1894 Moses Dukes executed a will, and died in 1898. The testator left a widow and ten children. Item one of the will, gave direction as to disposition of testator’s body. Item two directed all jugt debts to be paid. Item three provided: “ I give and bequeath to my beloved wife, Sarah Jane Dukes, for and- during her widowhood, all the property 1 own and possessed of: consisting of lands and tenements, horses, mules, cows, hogs, household and kitchen furniture, plantation tools, wagons, carts, buggies, carriages, all notes and accounts, cash and whatsoever.” Item four appointed testator’s wife, Sarah Jane, sole executrix. The will was probated in 1898. At the time of his death testator was seized and possessed of a tract of land known as the Dukes place, containing about 500 acres and comprising parts of lots numbers 425 and 450 in the 13th district of Brooks County, of which about 300 acres was woodland. On the 3d day of February, 1919, Sarah Jane Dukes, the widow of the testator (who had not again married), executed a lease to Lee & Bradshaw, turpentine operators, covering all of the timber on the land. The lease stated that it was “ for all the purposes of boxing, working, and otherwise using said timber for turpentine purposes. . . The above timber formerly worked by B. O. Wood. The life of this lease four (4) years from above date, for all virgin timber on above lot.” The lessees entered upon the land and commenced to work all the timber thereon suitable for turpentine purposes by the cup method, which involved cutting streaks through the bark and sap of the tree so that it would exude gum; and attaching metal cups to the tree in such manner as to catch the gum. Subsequently and between the dates May 17th, 1819, and August 20, 1919, inclusive, W. J. Bogers, having notice of such lease and operation thereunder, acquired by purchase several undivided interests amounting to 6/10th interest in all of tlie land. He was a son of Mrs. Mary Lizzie Bogers, a daughter of the testator, and purchased directly from some of the children, and in other instances from transferees of children and heirs of deceased children of the testator. In October, 1919, W. J. Bogers and his mother, Mrs. Mary Lizzie Bogers, asserting title as tenants in remainder under the will of the testator, instituted an action against Lee & Bradshaw, to enjoin the working of the trees for turpentine purposes, on the ground that the trees were part of the realty and the working of the trees for such purposes was permanent injury to the trees and the land on which they were growing, amounting to waste, which the widow as a tenant during widowhood had no right to authorize. At the interlocutory hearing there was an issue, under the pleadings and evidence, as to whether the trees which defendants were working had been worked prior to the death of the testator and as to whether the maimer in which the trees were being worked was injurious to the trees. The plaintiff’s evidence was to the effect: that during the life of the testator the land had been worked for turpentine, but all trees that had been so worked were cut off for sawmill purposes before the death of the testator, and practically all of the trees that defendants are working are young trees that have grown up since the death of the testator; that B. O. Wood had worked the land for turpentine purposes, covering a period of six years which ended in 1918, which was subsequent to the testator.’s death; also that the working of the trees extracted the sap to such extent as to be permanently injurious, and defaced the trees in such manner as to render them liable to burn and blow down, and consequently the use to which the trees were being put by the defendant was destructive of the estate. The defendants’ evidence was to the effect: that in the main the trees which they were working were being worked by the old “'box ” process at the time the will was executed, and were being so worked at the death of the testator, and had been continuously worked by successive lessees up to the time of the lease to defendants; that such “ box process ” involved cutting boxes in the tree into which the gum would run, the “box” serving the purpose of the metal cup employed in the new or “ cup process;” that the old method of extracting turpentine was to cut a number of faces and boxes on the same tree, boxes being cut in such way as to catch and hold the gum that would flow; that even under this method the percentage of the trees that were killed was very small; that where trees have been worked by this old method and do not die, the reworking or back-boxing of them by putting streaks thereon will not injure them; that the taking of the gum from the trees is not injurious to trees or to the land; that each year the tree makes for itself a new supply of gum or sap, and contains as much gum the second year as it did the first, which is true of subsequent years; that the idea of putting a streak upon the tree is simply to scarify the surface so as to cause, at the proper season, the gum to flow from this wound into the cup that has been attached to receive it; that after the gum has run for one season this streak will heal up, and it will not run again the next year unless a new streak is placed upon it for the same purpose; that defendants’ method of working the trees was by this “cup process,” and was not injurious to the trees or land; and that all of the income of the estate left by the testator would be insufficient to support the widow, if she were not allowed the income derived from leasing the timber. The judge hearing the case rendered a decision at chambers as follows: “After consideration of the law and the evidence in this case, it is ordered and decreed that the defendants be restrained and enjoined from cutting, boxing, or putting-streaks upon the timber described in plaintiffs’ petition, until the hearing. In so ordering the chancellor is not so doing in the exercise of the legal discretion vested in him, but upon the ground that as matter of law the life-tenant could not legally, in this case, lease the right to box, cut, and work the timber for turpentine purposes.” The exception is to this judgment.</p>

<p>1. The language employed in section 10 of the act of November 30, 1915 (Acts Extraordinary Session 1915, p. 107), relating to the regulation of motor-vehicles and motorcycles and. their rate of speed upon the highways of this State, and providing that a motor-vehiele shall not be operated upon any public street or highway “ at a speed greater than is reasonable and safe,” is so indefinite as to render that part of the statute void. Moreover, since the decision of this case by the Court of Appeals, the portion of the statute above referred to has by this court been held to be unconstitutional and void.</p> <p>2. Inasmuch as this court has hold the third paragraxoh of section 10 of the act of 1915, above referred to, unconstitutional upon the ground that legislation upon this subject was not included in the Governor’s call for the special session, it is unnecessary to decide whether it is also void upon the ground of indefiniteness and vagueness.</p>