Volume 152 — Georgia Reports

Complaint for land. Before Judge Park. Jones superior court. September 3, 1920.

<p>Ejectment. Before Judge Harrell. Calhoun superior court. June 7, 1920.</p>

<p>1. Where a testator, by item 5 of his will, bequeathed to his son, R. S. Munford, in trust for the testator’s daughter, L. M. Peeples, one half of his shares of the capital stock of a certain mining company (the other half being bequeathed to the son by another item absolutely), vesting the trustee with full and complete control of said stocks, with the exclusive right and authority to vote same at all stockholders’ meetings, and to sell the “stock as in his judgment may be best for the interest of all parties concerned;” and where the testator also provided, in a subsequent clause of item 5 of the will, that the trustee shall pay to the daughter “ or to the heirs of her body, should she be dead, all dividends that may accrue upon said shares of stock, and the proceeds of any sale that he may make of same, to be hers or theirs, as the case may be, absolutely. But should my said daughter . . die leaving no issue of her body, children, or children of children, before the executing of the ' trust herein created, then the stock herein bequeathed to my son . . as trustee, or the residue thereof should any have been sold, shall be and become the property of the said [son] absolutely.” Held, that the daughter takes an estate in fee, which is not cut down.to a less estate by item 5 or any subsequent part of the will.</p> <p>2. Where an estate was bequeathed by a testator to a named trustee for his daughter, as set out in headnote one, and a petition was filed by the daughter against the trustee, alleging that at the time the testator executed his will she was over twenty-one years of age, of sound mind, and had since tjhat time remained of sound mind and fully capable of receiving, owning, controlling, and enjoying property in her own right without the intervention of a trustee, and also alleging malfeasance and nonfeasance on the part of the trustee, and praying for injunction, receiver, and that such devise be declared to convey the absolute fee to her, such petition was not subject to demurrer on the ground that the trust was executory, and not executed; and the court did not err (at a regular term of court) in overruling the demurrer on that ground. And where, on a hearing for temporary injunction, the evidence for the plaintiff was sufficient to sustain the allegations of her petition, the court did not err in granting a temporary injunction.</p>

Construction of will. Before Judge Park. Jasper superior court. August 2, 1920. Blackwell, as administrator de bonis non cum testamento annexo of the will of James Aken, filed a petition for construction of the will and direction. As far as it appears all persons interested therein were made parties, and the case was by agreement submitted to the judge on the pleadings, the case being controlled by a question of 'law.

Claim. Before Judge Irwin. ■ Douglas superior • court. June 28, 1920. On November 6, 1914, a judgment was rendered in a justice’s court, for $64.46 principal, with interest, attorney’s fees, and costs of court, in favor of N. B. and J. T. Duncan against C. W. Turner, in a suit upon a promissory note.

Injunction. Before Judge Hutcheson. DeKalb superior court, June 25, 1920. The exception is to a judgment granting an injunction at an interlocutory hearing in the case of J. M. Pilgrim against S. E. Purcell and J. A. Sudderth, being a suit for specific performance of a contract, and for injunction.

<p>Action for specific performance. Before Judge Meldrim. Chat-ham superior court. July 3, 1920.</p>

• Validation of schoolbouse bonds. Before Judge E. D. Graham. Treutlen superior court. August 16, 1920. The solicitor-general of the Oconee Circuit filed'a petition seeking the validation of bonds to the value of twenty thousand dollars, proposed to be issued by Orland Consolidated School District, Treutlen County, the. proceeds to be used for the purpose of building and equipping a schoolhouse in said, district.

<p>Certiorari; from Court of Appeals. 25 Ga. App. 623.</p>

<p>Questions certified by Court of Appeals (Case No. 11964).</p>

<p>Equitable petition. Before Judge Mathews. Bibb superior court. May 12, 1920.</p>

<p>Question certified by Court of Appeals (Case No. 10898).</p>

<p>Equitable petition. Before Judge Irwin. Haralson superior court. July 8, 1920.</p>

<p>Injunction. Before Judge J. B. Jones. Hall superior court. September 18, 1920.</p>

Equitable petition. Before Judge George L. Bell. Eulton superior court. November 1, 1920. A. P. MeCravey died intestate, owning a farm containing 179y2 acres, called Turner’s peach orchard farm, in Cobb County. The farm was encumbered by a deed to Marietta Trust & Banking Company, securing a debt on which there was a balance due of seven thousand dollars. Jane MeCravey, widow and sole heir at law of the deceased, was appointed administratrix upon the estate, February 2, 1912.

<p>Petition for injunction. Before Judge Wright. Floyd supe- ' rior court. "November 13, 1920.</p>

<p>Equitable petition. Before Judge Park. Morgan superior court. July 6, 1920.</p> <p>The plaintiffs, Zoe Harriotte McHenry and Marion Louise Hickey (formerly McHenry), who are the only children of John G. McHenry, the defendants in error in this court, brought a petition against John G. McHenry, of Morgan County, and Mrs. W. S. McHenrji, of Eloyd County, this State. By amendment John G. McHenry was made a party defendant both in his individual capacity and as the surviving administrator of the estate of Mrs. Marion McHenry Bozeman, and Mrs. W. S. McHenry was made a party defendant both in her individual capacity and as the personal representative of the estate of W. S. McHenry. Petitioners sought to have their rights as remaindermen in certain stock ascertained and declared. The character of this stock and the source and origin of plaintiffs’ claim of title are also set forth in the petition. Plaintiffs sought injunctive relief to restrain the defendants from selling, transferring, or disposing in any manner of the stock described in the petition, or altering its status. In an amendment the plaintiffs further prayed that the rights of petitioners be ascertained and declared in the assets received by W. S. McHenry and J. G. McHenry from- the estate of Marion McHenry Bozeman and from the committee of her property, the New York Trust Company, and in certain other property involved in the transaction. There was a prayer for injunction and receiver, and also a prayer for general relief. It is alleged in the petition, that John G. McHenry is the surviving adjministrator of the estate of Mrs. Marion Bozeman, deceased; that (he and W. S. McHenry, the husband of Mrs. W. S. McHenry, were appointed and qualified as such administrators in 1918; that W. S. McHenry died intestate thereafter, in April, 1919, ■without descendants, leaving the defendant, Mrs. W. S. McHenry, his sole heir at law; that Mrs. McHenry as such widow and sole heir at law had taken possession of all the estate of W. S. McHenry without administration; that Mrs. Marion Bozeman, who before her marriage was Marion McHenry, the sister of John G. and W. S. McHenry, in the year 1886 obtained, from the grandmother of the three, certain shares of stock in a corporation of the State of Alabama, then known as Elyton Land Company, the same owning the lands on which the City of Birmingham was afterwards largely built; that “dissatisfaction existing in the family thereabout, the same was adjusted and settled by an agreement respecting the stock, which was embodied in a .certain deed of conveyance of said stock, whereby the rights therein both of their grandmother, Mrs. Eliza Stokes, and said Marion McHenry, John G. and W. S. McHenry, and their children were fixed and declared.” This deed reads as follows:</p> <p>“ Georgia, Morgan County. Know all men by these presents, that I, Marion McHenry, of said county and State, for and in consideration of the natural love and affection I have for my brothers, William S. McHenry and John G. McHenry Jr., both of the county and State aforesaid, do hereby give, grant, and convey to them in severalty, and not as joint tenants, twelve and a half shares of the stock of Elyton Land Company of the State of Alabama, now standing in my name on the stock of said company, the same having been given and transferred to me by my grandmother, Eliza Stokes, of said county of Morgan and State of Georgia, with the understanding that one third part of all the dividends declared on said stock should be paid to the said Eliza Stokes as long as she may live, and no longer. And I hereby declare that in making this conveyance, the right of said Eliza Stokes to receive the one third of said dividends during her life is secured and to be respected; and should I die before my said grandmother, her right to one third of thé dividends on said stock shall not be impaired. I convey hereby to each of my said brothers, William S. and John G. Jr., six and one fourth sharps of the stock of said company, provided I die without leaving g child or children living at my death to receive one third part of the said six and one fourth shares so given, as to reduce each brother’s part to four and a fraction shares, and the other equal part to the amount last mentioned to become the property of whomsoever by law would be-entitled as mj^ heir or heirs in fee. But should I die leaving no such child or children living, who would be entitled to inherit the said one-third part of said twelve and a half shares of said stock, then the whole of said stock or shares is hereby conveyed in equal part to my said brothers separately for life, and to such child or children as he may leave living at his death to take his share in remainder in fee simple. Should either of my said brothers die leaving no child or children at his death to take his part of said shares in remainder, then the survivor of my said brothers to take the parts of both, whatever these amount to, with remainder over to such child or children as the survivor may have living at his death, in fee. But in making this conveyance it is agreed by the said Marion McHenry and her said two brothers that she hereby reserves to herself the full and absolute right to receive, use, and appropriate all dividends that may be declared during her life upon the twelve and a half shares of said stock, in the same manner as she has heretofore done, that is, allowing one third of said dividends to be paid to the said Eliza Stokes and the said Marion receiving two thirds so long as her said grandmother may live, and afterwards the entire dividends to the exclusion of all persons.</p> <p>“ In witness whereof, after making the erasures in line one on the second page, and in the interlineation on said page in lines eight and thirteen, I have hereunto set my hand and seal this 11 day of December, 1886.</p> <p>Marion McHenry (Seal) ”</p> <p>“ Executed in the presence of</p> <p>“ E. C. Foster, Joshua Hill,</p> <p>“ Thos. B. Baldwin, Ordinarjq Morgan Co., Ga.</p> <p>a Recorded Dec. 11, 1886. C. W. Baldwin, Clerk.”</p> <p>The original deed, it is alleged, went into the hands of W. S. McHenry; and plaintiffs pray that the said McHenry be required to produce the same in court at the trial of the case. Plaintiffs contend that by the terms of this deed, after the death of Mrs. Eliza Stokes, which occurred in the year 1888, Mrs. Marion Bozeman was to have the dividends from the stock during her life, and in the event she died without children, as she did on the 27th day of September, 1917, the stock was to pass to John G. and TT. S. McHenry for tlieir lives; and should either die leaving no child or children, then the survivor was to take the wholé for life, with remainder over to such child or children in ■ fee as such ■.survivor might have living at his death; and they.further contend, that, John G. McHenry having survived his brother W. S. McHenry, the latter having died without leaving child or children, they, the petitioners, as the children of the said John G., are the presumptive remaindermen of said stock. The petitioners further show, by the allegations of the petition as amended, that in March, 1888, the Elyton Land Co. divided among its stockholders, including said Mrs. Bozeman, certain stock which it owned and held, and by virtue of said division transferred to Mrs. Bozeman fourteen and one half shares of stock of the Birmingham Trust & Savings Company, a corporation of Alabama, hereinafter referred to as the Birmingham Trust' Co. This stock remained in the control and possession of Mrs. Bozeman till her death, and she received the dividends thereof. She became insane about the year 1895, and the New York Trust Company became heT guardian or committee of her property, and later sold the one half share for her benefit. The remaining 14 shares are still on hand, and have been issued in the names of John G. and W. S. McHenry. The Elyton Land Company, prior to March, 1888, owned $200,000 of the capital stock of the Birmingham Trust Company, having acquired the same as an original subscriber to the stock; and in March, 1888, the Elyton Land Co., wishing to make a distribution of its assets among its stockholders,, distributed to each of them one share of the capital stock in the Birmingham Trust Co. for each share of stock held by the subscriber in the Elyton Land Co., and Mrs. Bozeman received aa her portion of the distribution of the assets of the Elyton Land Co. the 14% shares of the capital stock of the Birmingham Trust Co.; and it is alleged that said distribution by the Elyton Land Co. was a division of the corpus of the estate of said company among the shareholders. It is further alleged that by successive reorganizations substitution for the original stock in the Elyton Land Co. has been made by stock in what is now called the Birmingham Bealty Company, 137 shares having been issued to Mrs. Bozeman therein as representing her interest in the company reorganized. Said 137 shares have been likewise in her possession or that of her guardian for her till her death, and she received the dividends therefrom. Since her death the stock has been transferred into the names of John Gr. and W. S. McHenry'. The Elyton Land Co. made a distribution of its assets in the year 1887 or 1888, by issuing to its stockholders six-percent. bonds, said company owning as a part 'of its assets a large amount of purchase-money notes representing the sale of real estate owned by said company, and said bonds were secured by bonds issued' against the purchase-money notes referred to. When said bonds became due the company defaulted in the payment of the same about the year 1895, and in order to meet said payment “the Elyton Land Co. was reorganized into the Elyton Company, said Elyton Company receiving all the assets of the Elyton [Land] Co.;” and said Elyton Company issued ten shares of its own stock for every one share of the Elyton [Land Co. to each stockholder in the last-named company, and substituted its own .bonds at five per cent, in place of and to 'retire the bonds of the Elyton Land Co. The Elyton Company 'defaulted in the payment of its bonds that were issued in substitution of the Elyton Land Company, and said Elyton Company reorganized into the Birmingham Realty Company, a corporation, said Birmingham Realty Company taking over the assets of the Elyton Company and issuing to the stockholders of the Elyton Company its own stock and bonds in substitution of the stock and bonds held by the stockholders in the Elyton Company. Mrs. Bozeman received, in substitution for the stocks and bonds held in the Elyton Company, one hundred and thirty-seven shares of common stock of the par value of $100, seventy-eight shares of preferred stock of the par value of $100, and $7,000 of five-per-cent, bonds of the Birmingham Realty Company. This last reorganization occurred on February 8, 1900. It is also contended, that the 14, shares of stock in the Birmingham Trust Co. and 137 shares of stock in the Birmingham Eealty Co. represent the corpus of the stock of the Elyton Land Company mentioned in said deed of 1886, set forth above, and are in equity impressed with the same limitations and uses, and are the property of petitioners in remainder as provided in said deed; that the estate of Mrs. Marion Bozeman is indebted for and liable for petitioners’ interest in the half share of ,the ’¡former stock which was sold as aforesaid, said half share being of the present value of $125 ; that on October 17, 1908, the New ■York Trust Company, the duly authorized and acting committee tof the property of Marion McHenry Bozeman, sold the 78 shares of preferred stock in the Birmingham Bealty Company herein-before referred to, and received therefor the sum of $7,800, and likewise, on August 15, 1904, sold the bonds of said Birmingham Bealty Company above mentioned for the sum of $7,000; that said New York Trust Co. reinvested the money derived from the stocks and bonds in first mortgages, loan certificates, and other valuable securities, holding and treating the same as the principal of the estate of said Mrs. Bozeman and .turning over to the committee of the property for the support of said Mrs. Bozeman the income therefrom; that after her death these securities, or the money derived therefrom, were turned over to the duly appointed administrators of the estate of Mrs. Bozeman, to wit, W. S. and John G. McHenry; that the funds so received by them were in law and in fact not the estate of Mrs. Bozeman, but were controlled by and subject to the limitations of the deed referred to and set forth above; that W. S. and J. G. McHenry, in absolute disregard of the limitations imposed upon said securities, undertook to divide the same among themselves, and after the death of W. S. McHenry his widow, Mrs. W. S. McHenry, also disregarded petitioners’ ■rights in said property, and J. G. McHenry and Mrs. W. S. McHenry have now possession and control of said property and are undertaking to hold the same in utter disregard of petitioners’ remainder interest thereunder as created by the deed referred to. Petitioners show that it is the duty of J. G. and Mrs. McHenry to account to them for said sums as remainder-men, and they are liable therefor both in their individual capacities and as administrator and administratrix, respectively, of the estates of Mrs. Marion McHenry Bozeman and W. S. McHenry; that the Elyton Land Co. was the sole owner of the entire capital stock of the Birmingham Water Co., and the Highland Avenue and Belt Bailroad, of Birmingham!, Ala.; that on or about the year 1887 or 1888, and subsequently to 1886, said Elyton Land Co. again made distribution of some of its assets, by turning over to its stockholders all its capital stock in said companies; that Marion McHenry Bozeman received as her distributive share 3'6 and a fraction shares of the capital ■stock of the Birmingham Water Co. and 76 and a fraction shares of the capital stock in the railroad company referred to. Said shares of stock were held by the New York Trust Co., as committee of the property of Mrs. Bozeman until “the - day of .October, 189 — ,” at which time the same was sold, the Water Compaq’s stock bringing something over $3,000, and the railroad stock bringing between $300 and $400. Said stock was treated by said committee as corpus of the estate of Mrs. Bozeman, the income thereof being used for her support and maintenance; the proceeds from the sale thereof were invested by said committee of the property, said New York Trust Co., in other securities, such as stock, bonds, or loan certificates, the same being held in the place of the original stock, and after the death of Mrs. Bozeman they were turned over to J. G-. and W. S. McHenry as administrators of the • estate of Mrs. Bozeman. Said substituted securities, or their equivalent in cash, are now in the possession, custody, and control of the defendants, they having divided the same among themselves, and claiming title thereto in disregard of petitioners’ rights and- in disregard of the limitations placed thereon in the deed set forth above. Petitioners attach to their petition a copy of the securities at the ■time of the death of Mrs. Bozeman turned over to the said administrators. It is also alleged that the Birmingham Bealty Company, the successor of the Elyton Land Co. and the Elyton Co., distributed, between November 3, 1908, and May 20, 1918, certain “liquidation dividends” amounting to a total of $3,562, which the petitioners allege was a part of the corpus and which went into the hands of the committee of the property of Mrs. Bozeman, who treated said funds as a corpus of her estate and not as income, and turned it over, upon the death of Mrs. Bozeman, to the defendants. It is further alleged that a part of the fissets received from the estate of Mrs. Bozeman by W. S. and John G-. McHenry, a portion of which had been divided between them, had gone into the hands of Mrs. W. S. McHenry; and -that this property had not been kept separate by her, but had been mingled with other property that she had received as sole heir at law and as the. sole representative of her deceased husband.</p> <p>Mrs. McHenry demurred to this petition, both generally and specially upon numerous grounds. It is unnecessary to set forth in detail the grounds of the demurrer. The rulings made in /the opinion substantially cover them. Mrs. McHenry also filed her plea and answer, admitting certain of the facts alleged in the petition, and denying others. , The demurrers were overruled by the court, to which ruling the defendant excepted. Evidence was submitted upon the issues made by the pleadings, and the ease was submitted to the court upon the law and facts without the intervention of a jury. After holding the case, for consideration, the court rendered a judgment, which was in favor of the plaintiffs for most of the material issues in the case, and the defendant, Mrs. W. S. McHenry, excepted.</p>

Petition for injunction. Before Judge Harrell. Dougherty superior court. August 20, 1920.

<p>Injunction. Before Judge Highsmith. Wayne superior court. October 12, 1920.</p>

<p>Petition for injunction. Before Judge Thomas. Lowndes superior court. June 25, 1920.</p>

<p>Land registration. Before Judge Thomas. Echols superior court. September 14, 1930.</p>

<p>Injunctions. No. 3334 before Judge' Pendleton. Pulton superior court. November 10, 1930. No. 3359 before Judge Hutcheson. DeKalb superior court. December 4, 1930.</p>

<p>Petition for injunction. Before Judge Mathews. Bibb superior court. November 20, 1920.</p>

Equitable petition. Before Judge Tarver. Bartow superior court. June 19, 1920. The Georgia Peruvian Ochre Company filed a petition in Bar-tow superior court, naming the Cherokee Ochre Company and Thompson, Weinman & Company as defendants.

.Equitable petition. Before Judge Hodges. Oglethorpe superior court. September 20, 1920.

Equitable petition. Before Judge Hodges. Oglethorpe superior court. October 22, 1920. A. B. Utter, .as trustee, obtained a judgment, on which execution was issued, against John E. Coker, on March 5, 1919, for something'over $2,000, on two notes ■ waiving homestead and exemption rights. On May 8, 1919, the defendant in execution was adjudicated a bankrupt, and on September 21, 1919, he obtained, his discharge in bankruptcy.

<p>Equitable petition. Before Judge-Terrell. Carroll superior court. October 9, 1920.</p>

<p>Equitable petition. Before' Judge Searcy. Cobb superior court., November 1, 1920.</p>

Equitable petition. Before Judge E. D. Grabam. Wheeler superior court. March 24, 1920. Daniel Pope sued the Bank of Alamo of Wheeler County, the Southern Exchange Bank of Dublin, Laurens County, and C. B. Williams of the latter county.

<p>Petition for mandamus. Before Judge Kent. Laurens superior court. October 9, 1920.</p>

<p>1. Where in an equitable proceeding the evidence, though conflicting, was amply sufficient to sustain a finding of fact by the auditor to whom the ease had been referred, there was no abuse of discretion by the court in refusing to approve an exception of fact and in overruling an exception of law to the finding.</p> <p>2. The court having in its decree adjudged, as it was authorized to do, that each of the parties pay half of all the costs in the case, it is immaterial whether or not the auditor had authority to make a finding as to the costs.</p> <p>3. Where an exception is not in itself complete, but refers to “the entire evidence bearing on ” the subject of the exception, and to ascertain ■vvhat parts of the evidence bear on the question would require an examination about 175 pages of what purports to be the evidence reported by the auditor, the court on review is not required to determine this exception.</p> <p>4. It not appearing that a brother of the plaintiff had authority as her agent to make any admission in respect of the land line that would bind her, although he had looked after the property for her and “ in all these surveys when he was present he represented” her, it was not error to exclude certain alleged admissions by him as to the land line in question.</p> <p>5. Under previous decisions it was not error to exclude declarations of a deceased owner and possessor of land not adjacent to that of either of the parties.</p> <p>6. Other exceptions not being sufficient in form to be considered, under-previous decisions the court did not err in overruling them.</p> <p>7. If after twenty days an amendment to exceptions to an auditor’s report, adding a new and distinct exception, can be allowed, a good reason why it was not timely filed with others must appear.</p> <p>8. The approval of the auditor’s report, and the decree of the court, were' not erroneous.</p>

<p>Petition for injunction. Before Judge Wilson. Dougherty superior court. December 2, 1920.</p>

Appeal. Before Judge George L. Bell. Fulton superior court. October 20, 1920. .Lacy Irving died on December 6, 1919, leaving a last will and testament which contains various bequests to Willie Bell Irving, referred to in the will as his wife, and to certain named children of his. This will was offered for probate by Willie Bell Irving and J. W. E. Linder; and to the application for probate a caveat was filed by Lena Irving.

<p>1. On the trial of a claim case the overruling of a motion to dismiss the levy cannot be made a ground of a motion for a new trial, but should be made the subject of direct exception.</p> <p>2. “ There can be no 'legal verdict in favor of the plaintiff in execution in a claim case, unless there is introduced in evidence at the trial a valid, unsatisfied execution in favor of the plaintiff in execution against the defendant in execution.” Collins v. Mill, 115 Ga. 465 (41 S. E. 678). This principle is applicable where, although what purports to be a fi. fa. is copied in the record, there is no reference to its introduction in evidence, nor to its connection with any paper used in the trial of the case, and where the bill of exceptions does not specify the fi. fa. as a part of the record material to a clear understanding of the errors complained of.</p> <p>3. We do not rule upon that ground of the motion for a new trial assigning error on the introduction of the record of deeds as secondary evidence, objected to on the ground that there was no sufficient evidence that the notice to produce the originals was made as provided by law. The motion includes numerous questions and answers and colloquies, and is not in proper form; and moreover, before another trial the plaintiff will have an opportunity, if he so desires, to obviate the issue before the trial court.</p> <p>4. Where error is assigned, as in several grounds of the amended motion, on the admission of testimony'consisting of oral and documentary evidence, some of which was admissible, such assignment is without merit and shows no cause for the grant of a new trial.</p> <p>5. This is an ordinary claim case, and the only issue which could have properly been determined is whether or not the property was subject to the fi. fa. It was therefore error to allow the plaintiff in fi. fa. to testify that the nature of the indebtedness on which the judgment was based, and for which the fi. fa. was issued, was borrowed money. Compare Allen v. Middleton, 99 Ga. 758 (27 S. E. 752); Southern Mining Co. v. Brown, 107 Ga. 264 (3) (33 S. E. 73).</p>

<p>1. Section 34 of article 20 of the act of 1919, to regulate banking, etc., is not violative of the constitutional inhibition against imprisonment for debt; it being designed to punish, not for non-payment of debt, but for practicing the fraud specified.</p> <p>2. Testimony of what was shown and not shown by an individual-deposit sheet exhibited, that “ came from the proper custodian of the books in the bank,” given by a witness who had not kept the books and did not testify from his own knowledge, was subject to objection as secondary and incompetent.</p> <p>3. The sheet just referred to was also not admissible over objection that it was not properly identified, it not appearing that the books in the bank were correctly kept.</p> <p>4. Where a witness was asked whether during a stated month he gave any checks on the bank and signed them with the name of the accused, it was not error to exclude an expected answer, “ I did,” as this without more would have been immaterial.</p>

<p>Temporary alimony, etc. Before Judge Sheppard. Evans superior court. December 22, 1920.</p>

<p>1. In the absence of a timely motion for mistrial, a new trial will not be granted because of questions propounded by the trial judge to a witness under examination. Whether the asking of the questions would have amounted to error requiring a reversal, had a motion for mistrial been promptly made, need not be decided.</p> <p>2. The charge to the jury on fraud, in the language of the Civil Code, § 4626, was not subject to the criticism that it was not applicable to the nature of the testimony, and was prejudicial to the movants in that it emphasized the contentions of the respondents and minimized the evidence introduced by movants, and that it shifted the burden of proof from the plaintiff to the defendants. If the defendants desired an instruction more completely covering their contentions, an appropriate request in writing should have been duly presented.</p> <p>3. Failure to charge on. designated principles of law was no cause for new trial, in the absence of proper requests.</p> <p>4. In the light of the court’s instruction to the jury on the subject (which was not erroneous), there was no error in admitting in evidence the report of a receiver who, under appointment, took charge of the business that was the subject-matter of the suit on trial; such report showing the amount obtained for the property at receiver’s sale.</p> <p>5. The verdict was supported by evidence.</p>

<p>Equitable petition. Before Judge Lovett. Atkinson superior court. December 31, 1920.</p> <p>Mrs. Emma Smith filed a petition praying that a deed which she had made, conveying described land to Bob Smith et al., be set aside and canceled. The petitioner (grantor named in the deed) was the widow of W. E. Smith. The grantees named are children of W. E. Smith by a former wife. The petition alleged that the property involved was, with other property, set aside to petitioner and her two minor children as a year’s support; • that the deed conveying the land to the defendants was void and should be set aside, for the reasons (a) that she received no consideration for the same; (5) that it was obtained by duress, in that the defendants threatened to take all the property which had been set aside to her as year’s support, and that they would burn her out and would kill her if .she did not make the deed to them; (c) that the deed was obtained through fraud, in that the defendants represented to petitioner that she could not get possession of any of the property assigned as year’s support unless she would make to them a deed to the land involved, and that because of her ignorance, inexperience and fear caused by the threats made she was induced to execute the deed; that while the deed purports to be a deed of gift she had no reason for giving the grantees anything; that she did not know the purport and meaning of the deed, and the same was not her voluntary act. The two minor children of Mrs. Emma Smith, through their next friend, intervened, setting up the fact that the original plaintiff had died; that they were her sole heirs; that at the time of the execution of the deed their mother was, because of the impairment of her mental ’faculties, incapacitated to make an intelligent and voluntary disposition of her property; and praying that they be made parties plaintiff, and that the cause proceed in their name and for their benefit. The jury returned a verdict in favor of the plaintiff. Motion for a new trial filed, and subsequently amended, was overruled by the court, and the defendants excepted. The sole ground of the amendment to the motion complains- that the court erred in permitting the plaintiff to introduce documentary evidence to show that the land had been set aside as a year’s support. The objections urged against this evidence at the time of its introduction were, (1) that the land in question Avas not shown to have been in the possession of W. E. Smith at the time of his death; and (2) because the proceedings setting aside year’s support described the land as “ one hundred and fifty acres of lot of land No. 63 in the 7th district of Coffee County,” while the deed, cancellation of which was sought, describes the land as “ being parts of lots No. 63 and 39 in the 7th district of Coffee County.”</p>

<p>Equitable petition. Before Judge Hutcheson. Newton superior court. January 11, 1921.</p>

Petition for injunction. Before Judge E. C. Bell. Decatur superior court. March 10, 1921.

<p>... Indictment for murder. Before Judge Park. Baldwin superior court. March 10, 1921.</p>

<p>Indictment for murder. Before Judge Eve. Worth superior court. March 36, 1931.</p>

<p>1. Under the ruling made in this ease when it was before this court on a former review (see 149 Ga. 724), the court did not err in admitting as evidence the statement made by the deceased, which the State offered as a dying statement.</p> <p>2. Where the law of mutual combat is essentially for consideration in the case, the charge of the court should submit it to the jury even though no written request therefor is preferred.</p> <p>3. Whether the court erred in not charging the jury that “they could not consider the statement of the deceased in making their verdict, unless they found at the time of making such statement he had abandoned all hope of living,” was error or not depends upon whether the court gave instructions to the jury in regard to the dying statement, and what those instructions were. The movant having failed to show what the court’s instructions 'were upon this subject, the mere failure to charge in the language here set forth can not be adjudged to show cause for the grant of a new trial.</p>

<p>This case, on writ of error from the original motion for new-trial, is reported in 151 Ga. 334 (106 S. E. 718).</p>

<p>The Court of Appeals (in Case No. 12264) requested instruction from the Supreme Court upon the following question: “ An ordinance of the City of Savannah is as follows: ‘Any person who shall, in the night or day, disturb the peace and quiet of the city in any manner whatsoever, or shall be guilty of any riotous, disorderly, or improper conduct, or keep a disorderly house within the limits of the City of Savannah, such person shall, on conviction before the police court, be fined in a sum not exceeding one hundred . . dollars, or be imprisoned not exceeding thirty . days, or both, at the discretion of the police court; each day’s keeping of a disorderly house to be considered a separate offense.’ It is provided by an act of the General Assembly of Georgia, approved August 11, 1906 (Ga. L. 1906, p. 1033), that ‘the police court of the city of Savannah is hereby continued a court of record, and shall have jurisdiction to try all offenses against the laws and ordinances of the municipal government of the City of Savannah, committed within the corporate limits of said city and within three miles thereof, and extending into the County of Chatham, and to punish for the violation of such laws and ordinances by inflicting such punishments as may be provided by law/ Under and by virtue of this act of the legislature, was the recorder of the City of Savannah authorized to administer punishment for a violation of the city ordinance referred to, where the offense occurred outside the corporate limits of the City of Savannah but within three miles thereof? In other words, did this act of 1906 automatically, so to speak, amend the city ordinance referred to, so that that ordinance was violated if the acts therein made penal were done within the corporate limits of the City of Savannah or within three miles thereof ? ”</p>

<p>Indictment for making intoxicating liquor. Before Judge Shurley. Wilkes superior court. April 20, 1921.</p>

<p>Indictment for murder. Before Judge Munro. Harris superior court. April 23, 1921.</p>

<p>Indictment for murder. Before Judge Shurley. Taliaferro superior court. May 30, 1921.</p>

<p>1. If one who had been a constable of a certain militia district in a given county, by removal therefrom to another district, thereby vacated his office, nevertheless if, while in attendance upon the superior court of that county, he was selected by the sheriff to act as bailiff during the term of court, and while acting in that capacity had charge of a jury after a case had been submitted to them, no objection being made to his acting in that capacity, the verdict made by the jury will not be set aside upon the ground that the jury were in charge of one who was not in fact a constable of the county.</p> <p>2. The contention that the bailiff while in charge of the jury mingled with them and slept in the same room with them, while they were deliberating in the case, was sufficiently met and explained.</p> <p>3. The mere negative testimony of the bailiff himself that he had no recollection of taking the oath prescribed in section 883 of the Penal Code (1910), relating to oaths of bailiffs, and of others who were present a part of the time in the court-room that they had no recollection of seeing him sworn, did not require a finding upon the part of the trial judge, as a matter of fact, that the bailiff did not take the oath prescribed. Nor would the- additional fact that there was no record upon the minutes of the court of'the bailiff’s having been sworn, require such a finding.</p> <p>4. The exception to the charge upon the ground that' it contained an expression of opinion by the court is without merit.</p> <p>5. There was no evidence upon which to predicate a charge- upon the subject of involuntary manslaughter, or upon the theory of accidental shooting.</p>

<p>1. The court’s definition of reasonable doubt, as given in his charge to the jury, was substantially correct.</p> <p>2. The statement of the accused to the sheriff in regard to the crime charged' and the circumstances attending its commission amounted to a confession, and afforded direct evidence of his participation in the crime and of his guilt of the offense charged; and the court did not err, there . being no written request to charge upon the subject of circumstantial evidence, in omitting to charge the jury upon that subject.</p> <p>3. Under the evidence as to the circumstances under which the confession ■ of the accused was made, the court did not err in admitting it in evidence and in submitting to the jury, under proper instructions, the question as to whether it was voluntarily made.</p> <p>4. There was sufficient evidence to authorize the verdict.</p>

<p>1. The court did not err in excluding from evidence certain declarations made by the accused, that a short time before the homicide and a short distance from the scene thereof the witness met the accused while the latter was on his way to the home of the deceased where the killing took place, and that the accused stated to him in part that he had his pistol with him, having put it in his pocket the night before when the deceased drove him from the home, as he knew, that he would have to roam the streets for the remainder of the night, but that now he had no further use for the pistol.</p> <p>(a) If other parts of the statement made by the accused to the witness at the same time were admissible, they should have been separated from the objectionable'part and offered separately. Where evidence is offered in block, and a part of it is objectionable, the ruling of the court excluding it in its entirety will not be cause for a new trial.</p> <p>2. The court did not err in instructing the jury upon the subject of threats, and in submitting to them the question of whether threats had been made or not, as a circumstance to be considered by them. There was some evidence authorizing the charge.</p> <p>3. The'court charged the jury in part as follows: “Now, gentlemen, the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired. This does not apply when two parties have equal facilities for seeing or hearing a thing and one swears that it did and the other swears that it did not.” And the court added: “ With reference to this question of positive and negative testimony, the jury weighing the testimony of such witnesses should consider and pass upon the question of their credibility.” In view of the fact that the court submitted the credibility of witnesses to the jury, the charge as given was not error.</p> <p>4. Under the evidence in the case the court did not err in failing to charge the law of voluntary manslaughter.</p>

<p>1. Sections 9 and 15 of the act of 1915 (Acts Ex. Sess. 1915, p. 107), and certain portions of section 10 of the same act, all copied in the first division of this opinion, are violative of art. 5, se6. 1, par. 13, of the constitution of this State, which provides 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,” because the act above referred to was passed at an extraordinary session of the legislature, and the proclamation issued by the Governor convoking the legislature into extraordinary session did not comprehend the matter to which the above-mentioned provisions of the act of 1915 related; and consequently the legislature at such extraordinary session was without authority to pass any law dealing with such matters.</p> <p>(a) .The judge erred in overruling the demurrers to certain counts in the indictment, which were based in part on violation of the above provisions of the act of 1915.</p> <p>(&) The 7th count was sufficient notwithstanding the unconstitutionality of the act above referred to, because it conformed to the provision of section 9 of the act of 1910 (Acts 1910, p. 90), referring to the same subject-matter, which was not repealed by the unconstitutional provisions of the act of 1915, supra.</p> <p>2. Applying the evidence to the allegations of other counts in the indictment, it was erroneous for the judge to omit to charge the jury, without request, the law relating to the crime of involuntary manslaughter in the commission of a lawful act without due caution and circumspection.'</p>

<p>Indictment for murder. Before Judge Summerall. Berrien superior court. January 5, 1921.</p>

<p>1. Where the allegations of an equitable petition brought by the grantor, for the cancellation of a deed which contained a condition subsequent, showed a failure upon the part of the grantee to fulfil the condition, the petition stated a cause of action, and a general demurrer was properly overruled.</p> <p>(a.) A conveyance of property, wherein it is recited that the conveyance is made upon consideration that the grantee shall render certain services and perform certain acts beneficial to the grantor, and which contains the further stipulation that upon failure of the grantee to comply with such condition the deed' shall be void, is a conveyance upon a condition subsequent, and the grantor may treat the failure upon the part of the grantee to perform the covenant for service as a forfeiture of the estate conveyed.</p> <p>2. The evidence objected to in the case tended to establish the allegations of the petition showing a breach of the condition subsequent, and the court properly overruled ■ the objection thereto.</p> <p>3. In view of the construction of the deed given above, the court’s charges to the jury, submitting to them the issue as to whether or nor there had been a breach of the condition, were proper and not open to the objection that the deed showed on its face that it was absolute, and that the court was unauthorized to submit the issue as to whether there had been a breach of the condition.</p> <p>4. There was evidence to support the verdict in favor of the plaintiff.</p>

<p>Indictment for murder. Before Judge Eve. Tift superior court. January 22, 1921.</p>

<p>A non-judgment creditor of a beneficiary under a will, who is seeking judgment against the beneficiary in a separate suit, can not maintain an equitable action against the executor of the will, to obtain a judicial construction of the will, in order to secure an adjudication to the effect that his debtor (the devisee) took under the will an interest to which the lien of the judgment would attach if obtained.</p>

Petition for injunction; from Ware superior court. When this case reached the Supreme Court the clerk notified counsel for .the jilaintiff in error that the' bill of exceptions had not been signed by the plaintiff in error or his attorney.

<p>Indictmént for murder. Before Judge Dickerson. Cook superior court. March 12, 1921.</p> <p>Milton Hinson, alias Milton Moon, was indicted for tbe homicide of his mother; and at the same term of court he filed his plea of not guilty, and a special plea of insanity. On the trial of the case the jury returned a verdict of guilty of murder, with a recommendation of life imprisonment; and the defendant was accordingly sentenced by the court. He made a motion for new trial, which was overruled, and he excepted.</p>

Equitable petition. Before Judge Searcy. Butts superior court. February 34, 1931.

<p>Equitable petition. Before Judge Terrell. Carroll superior court. October 26, 1920.</p>

<p>Petition for mandamus. Before Judge Malcolm D. Jones. Houston superior court. March 12, 1921.</p>

Indictment for murder. Before Judge J. B. Jones. Hall superior court. December 18, 1920. J. C. Grant, on trial for the murder of Wyley Heussey, was found guilty, and the jury recommended that he be punished by imprisonment in the state penitentiary for life. His motion for a new trial having been overruled, he excepted. The homicide occurred on a street and near a restaurant in the business section of the city of Gainesville.

Equitable petition. Before Judge Malcolm D. Jones. Bibb superior court. January 8, 1921. Sara Ann Eoss and Dixie Y. Sabra Johnson, individually and as guardian for her two minor children, William Sabra and James Sabra, brought a petition against Laura E. Wimberly, for the cancellation of a certain deed, for injunction, and for other relief.

<p>Injunction. Before Judge Worrill. Miller superior court. December 21, 1920.</p>

<p>Equitable petition. Before Judge Cobb. Clarke superior court. January 13, 1921.</p>

<p>Equitable petition. Before Judge Park. Baldwin superior court. January 18, 1921.</p> <p>The First National Bank of Milledgeville, Georgia, hereinafter referred to as the bank, brought an equitable petition against the Farmers Warehouse Company, hereinafter referred to as the warehouse company, and Samuel Evans Sons & Company, hereinafter called Evans & Co., for injunction and. other relief. The petition alleged in substance the following; On March 2, 1920, the bank advanced to W. P. Ennis $1042.79, and took as security therefor the promissory note of Ennis payable to the bank, due October 1, 1920. C. W. Ennis, the father of W. P. Ennis, indorsed and guaranteed payment of the note. At the time the bank advanced the money to Ennis it knew that he was a farmer engaged in growing cotton and other crops in Baldwin county, and the money was advanced to him on the faith of the crops as well as- on the indorsement of C. W. Ennis; but the bank did not know at the date of the note what lands W. P. Ennis was cultivating. On September 20, 1920, W. P. Ennis delivered to Evans & Co., for the bank, two bales of cotton; and on October 4, 1920, Ennis delivered to Evans & Co., for the bank, six bales of cotton. [Receipts were issued to W. P. Ennis on the respective dates for the eight bales of cotton, and were not negotiable. Immediately after the delivery of the receipts to Ennis by Evans & Co., Ennis delivered them to the plaintiff, with instruction to credit the cotton on the indebtedness; and the receipts are now, and have been since that date, in the possession and custody of the plaintiff. Plaintiff accepted the cotton as a credit on its note, but agreed with Ennis as a matter of accommodation to him, with the hope that the price of cotton would advance, to hold the cotton and convert it into cash, which agreement has been fully complied with. Plaintiff “ alleges positively and unequivocally that it accepted said cotton as a payment and credit on said note, and to the extent of the value of said cotton relieved the said W. P. Ennis of all other and further liability on account thereof.” Plaintiff is a bona fide purchaser of the cotton, without any notice or knowledge of the facts hereinafter set out. On May 29, 1920, W. P. Ennis, without any knowledge on the part of the plaintiff or his indorser, C. W. Ennis, executed and delivered to the warehouse company an instrument purporting to be a bill of sale upon his entire crop, including cotton raised or to be raised during, the year 1920, cultivated by him or by his direction on lands of Mrs. W. P. Ennis; the instrument purporting to convey the title to all of the crops into the warehouse company. The instrument was executed in the presence of, and attested by, R. L. Wall, a notary public of Baldwin County, and was recorded in the office of the clerk of the superior court on June 1, 1920. On June 22, 1920, W. P. Ennis, without the knowledge of plaintiff or C. W. Ennis, executed and delivered another instrument purporting to be a bill of sale, and purporting to convey the title to the same crops covered by the first instrument to the warehouse company. The last instrument was also executed in the presence of, and attested by, the same notary public, and was recorded June 23, 1920. The express consideration of the first instrument was $391, and that of the second instrument was $200. After the cotton was delivered by W. P. Ennis to Evans & Co., on or about October 12, 1920, the warehouse company sued out bail-trover for the eight bales of cotton against Evans & Co., returnable to the January term, 1921, of the superior court of Baldwin County, and at the same time made an affidavit for bail for the cotton. Copy of the suit was served on Evans & Co.; and the warehouse company is 'demanding that Evans & Co. give the trover bond required by law. Evans & Co. have no interest in the cotton except in so far as insurance and storage charges are concerned, and.lay no claim whatsoever to the cotton. The title to the cotton is in the bank, and under the law it has no right to intervene in the trover suit or to give bond for the production of the property or for the eventual condemnation-money. Inasmuch as Evans & Co. have no interest in the cotton and no reason to contest the claim of the warehouse company, plaintiff will be remediless unless a court of equity intervenes. As against the bank the bills of sale executed to the warehouse company do not constitute any notice, and the records of the same are not notice to the bank, for the reasons, first, that the instruments were executed in the presence of, and attested by, Wall, who at the time of their execution was the secretary and treasurer and general manager of the warehouse company, in full control of its business; and second, that if the bills of sale were valid at all as against the bank, a bona fide purchaser without notice, still their record is not constructive notice to the bank, for the reason that they purport to convey realty, and therefore, to entitle the instruments to record, it was necessary for them to be executed in the presence of two witnesses, one of whom should be a notary public or a justice of the peace. Even if entitled to record so as to be constructive notice to future purchasers, the instruments of the character heretofore set out can not operate as notice, for the reason that it. would be impossible for any future purchaser to ascertain from an examination of the record that mature, ginned, and baled cotton was covered by the description in the instruments. Plaintiff had no notice, either actual or constructive, of the existence and execution of the instruments, and it in good faith bought from W. P. Ennis the cotton and credited him with the same upon his note, and to that extent relieved him of further liability thereon, the exact amount to be determined when the cotton is placed upon the market; and the plaintiff relieved, to the extent of the value of the cotton, the indorser on the note, C. W. Ennis. The plaintiff prayed, first, that the warehouse company be enjoined from proceeding further with the trover action until the further order of'the court; second, that Evans & Co. be enjoined from giving any bond and from changing the present status of the cotton; third, that the court decree the title to the cotton to be in plaintiff.</p> <p>The defendant filed a general demurrer to the petition, on the 'ground that it set forth no cause of action and showed no ground .for equitable relief. It was agreed between counsel for all parties that the bail-trover suit, referred to in the petition, be merged into the present suit, that W. P. Ennis, the warehouse company, Evans & Co., and the bank are parties hereto; and that the court ' in his decision on the demurrer provide in his judgment to whom the cotton in controversy belongs, and the rights of the parties relatively thereto be determined, with the right of all parties to except. It was further agreed that R. L. Wall is not a stockholder in the warehouse company, but is its secretary and treasurer and general manager, and was only that at the time of the execution of the bills of sale by W. P. Ennis; and that this agreement be considered and made a part of the petition in this case. The court, after reciting the above agreement, overruled the demurrer and passed the following order: •" Ordered further that the title to the eight bales of cotton in question be and the same is hereby declared to be in the First National Bank of Milledgeville, Georgia.” To the judgment the Farmers Warehouse Company excepted.</p>

<p>Complaint for land. Before Judge Hutcheson. DeKalb superior court. January 15, 1921.</p>

<p>Action for specific performance. Before Judge Walker. Lincoln superior court. December 31, 1920. ■</p>

<p>Accusation of violating liquor law. Before Judge Edwards. City court of Dawson. January 20, 1921.</p>

<p>Certiorari. Before Judge 'George L. Bell. Fulton superior court. March 16, 1921.</p>

<p>Claim. Before Judge Irwin. Haralson superior court. January 18, 1921.</p>

<p>Appeal. Before Judge Thomas. Colquitt superior court. March 19, 1921.</p>

<p>Equitable petition. Before S. P. Cain, judge pro hac vice. Grady superior court. March 10, 1921.</p>

<p>Action for specific performance. Before Judge Tarver. Whitfield superior court. September 25, 1920.</p>

<p>1. Where the remedy at law is adequate, by motion to amend a judgment, resort to equity is not necessary.</p> <p>2. Where the legal remedy by affidavit of illegality is adequate, injunction is not proper.</p> <p>3. It was not error to dismiss the petition on general demurrer.</p>

<p>Petition for injunction. Before Judge Dickerson. Berrien superior court. March 30, 1921.</p>

Validation of municipal bonds. Before Judge George L. Bell. Fulton superior court. May 6, 1921. Held: and that the election resulted in favor of the issuance of the bonds; the amount to be issued; the purposes for which the bonds were to be issued; the rate of interest to be paid, and how paid; and prayed an order requiring the City of Atlanta to show cause why the bonds should not be validated.

<p>Certiorari. Before Judge Sheppard. Bryan superior court. August- 2, 1921.</p>

<p>Equitable petition. Before Judge Pendleton. Fulton superior court. December 7, 1920.</p>

<p>1. Where in an action to cancel a deed the plaintiff alleged that she agreed with the defendant (her son) to convey to him a house and lot that she owned and still owns, so that he could borrow money and secure the loan by mortgage on the lot, it being definitely agreed between them that this was the only purpose of her conveyance to him, and that he would reeonvey the land to her when the loan was repaid, and that the loan had in fact been repaid but the defendant refused to reeonvey the property to her; and where the defendant denied an agreement to reeonvey the property, but averred that it was conveyed to him unconditionally and that he was the true owner of it; and upon the trial each party testified to having repaid the loan in whole or part with funds belonging to herself or himself: Held, that it was not error requiring a new trial that the court charged the jury that if the plaintiff and her son agreed that she would convey the property for the purpose solely of allowing him to borrow money on it, and that he would reeonvey it to her when the loan was paid off, she would be entitled to recover; and that “ if these are the facts, it doesn’t make any difference who paid off the loan, whether she paid any part of it or not, or paid all the interest or any part of it or not.”</p> <p>2. The evidence authorized the verdict, and the court did not err in overruling the motion for new trial.</p>

■ Mandamus. Before Judge Pendleton. Fulton superior court. September 21, 1921.

<p>Temporary alimony. Before Judge Fortson. Gwinnett superior court. July 30, 1921.</p>

Indictment for rape. Before Judge Blair. Cobb superior court. December 31, 1920. I. A. Davis was tried for the offense of rape alleged to have been committed on the person of Lncile Bryant. The jury returned a verdict of guilty, and recommended the defendant to the mercy of the court.

<p>Equitable petition. Before Judge Wriglit. Walker superior court. November 9, 1921.</p>

Indictment for murder. Before Judge Gower. Wilcox superior court. March 3, 1931. J. C. Wilson was convicted of the murder of R. E. Sappington, by shooting him with a pistol. The bill of exceptions assigns error on the judgment of the court refusing the defendant a new trial. The homicide occurred in a small frame building used as a post-office in the town of Seville. The building faced directly on a street and extended back in the lot on which it was situated.

Equitable petition. Before Judge Hardeman. Emanuel superior court. March 10, 1921. This was ’a suit seeking cancellation of a deed made by the plaintiff to Mrs. M. M. Carmichael, wife of the defendant. The matter was before us on a previous occasion. Eor a full statement of the pleadings as the case then stood, see Brown v. Carmichael, 149 Ga. 548 (101 S. E. 124).

<p>Equitable petition. Before Judge Shurley. Glascock superior .court. June 6, 1921.</p>

<p>1. The act of 1921 (Acts 1921, p. 676), to amend an act to establish a new charter for the City of Atlanta so as to include within the territory of Atlanta the territory now known as the Town of Kirkwood, is not violative of art. 3, sec. 7, par. 8, of the constitution of the State (Civil Code of 1910, § 6437), which provides that “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.”</p> <p>2. Nor is the act of 1921 (supra) obnoxious to art. 7, sec. 10, of the constitution of the State (Civil Code of 1910, § 6567), which provides that “ Municipal corporations shall not incur any debt until provision therefor shall have been made by the municipal government.” Nor is 1 the above act violative of art. 7, sec. 7, par. 1, of the constitution of the State (Civil Code of 1910, § 6563), as amended (Acts 1918, p. 99), which provides that municipal corporations shall not incur any debt without the assent of two thirds of the qualified voters of the municipality, voting, etc.</p> <p>3. The act of 1921 (supra) is not violative of art. 1, sec. 3, par. 2, of the constitution of the State (Civil Code of 1910, § 6389), and of the constitution of the United States (§ 6652), which provides that no law impairing the obligation of contracts shall be passed.</p> <p>¡4. The court did not err in refusing an injunction,</p>

<p>In equity eases the judge may in his discretion apportion the costs between the parties.</p> <p>In view of the facts alleged in the petition and the nature and character of the relief therein prayed, the plaintiff’s suit was in equity, and it does not appear that the court abused its discretion in apportioning the costs equally between the parties.</p> <p>Where the judge in vacation enters an order making an auditor’s report the judgment of the court and taxing the costs against the defendant in the case, under general order granted in term authorizing the judge to enter final judgment in vacation, the judge has authority in vacation to entertain a motion to retax the costs.</p>

<p>Question certified by Court of Appeals (Case No. 11554).</p>

<p>Complaint for land. Before Judge Hardeman. Emanuel superior court.’ January 21, 1921.</p>

<p>Certiorari; from Court of Appeals. 26 Ga. App. 742.</p> <p>Mr. and Mrs. J. M. Bolader each brought suit against B. M. Bullard and J. B-. Bennett, in the city court of Atlanta, to 're cover damages for injuries sustained by Mrs. Bolader in consequence of the'falling of an elevator operated in a hotel of which the defendants were lessees. The original suit was against the owner and lessees jointly, but the case ivas nonsuited as to the owner. A verdict was returned for the plaintiffs, and a motion for new trial was made by the defendants; this being overruled, they excepted, and by writ of error carried the case to the Court of Appeals. That court affirmed the judgment of the court below. The opinion rendered by the Court of Appeals (26 Ga. App. 742, 107 S. E. 548) was as follows:</p> <p>“ 1. The lessee of a building in which he conducts a hotel and operates an elevator for the transportation of his guests to and from different floors of the building is required, in the operation of the elevator'for this purpose, to exercise extraordinary diligence for the safety of the guests while they are getting on and off and while riding upon the elevator. This rule of diligence is not limited to the actual technical operation of the machine, but includes such examination, inspection, and repair of its physical and mechanical parts as is necessary to keep and maintain it in a fit and proper condition for safe operation. Where a guest injured in the operation of the elevator sues the lessee for damages, alleging that the injury was caused by the defective condition of the elevator or negligence in its operation, on proof of the injury a presumption of negligence arises against the defendant. Helmly v. Savannah Office Building Co., 13 Ga. App. 498 (79 S. E. 364).</p> <p>“ 2. As between lessor and lessee, in the absence of contract, the lessor is required to make repairs to the leased property, rendered necessary by natural wear and tear; yet when the leased property contains an elevator which is used by the lessee in the conduct of his business, he is responsible for an injury caused by the defective condition of the elevator or by its negligent operation. This is especially true as applicable to the proprietor of' a hotel and his guests. Whether the lessee has exercised the degree of care required by law in the maintenance and operation of the elevator in the particular case'is a question of fact to be determined by the jury.</p> <p>££ 3. While the amount of the verdict, under the evidence, is large ($5,000), this court cannot say that it is £so excessive as to justify the inference of gross mistake or undue bias.’ i “4. The charge of the court was exhaustive, fair, and correct as to all the issues made by the pleadings and the evidence; and the verdict is amply supported. The refusal. to grant a new trial was right.”</p>

<p>Complaint for land. Before Judge Park. Wilkinson superior court. April 4, 1931.</p>

<p>Motion to amend decree. Before Judge Blair. Cobb superior court. April 16, 1921.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. July 23, 1921.</p> <p>Dr. M. C. Mitchell, a negro practitioner of medicine, was convicted of the murder of his nephew, Henry S. Mitchell, and given a sentence of life imprisonment. The indictment charges that ' Dr. Mitchell prepared and administered and caused to be administered internally to Henry S. Mitchell arsenic or other poisons of like character, which produced death. The indictment was demurred to upon the grounds, that it does not charge any offense; does not charge the time and place when the poison was alleged to have been administered; does not charge that the “other poisons of like character” were deadly and likely to produce death, or that the defendant administered these other poisons with intent to kill unlawfully and with malice aforethought; does not set out any amount of poison as having been administered, and does not with sufficient clearness allege the manner in which the poison was administered. Error is assigned on exception taken pendente lite to the overruling of this demurrer. Error is also assigned upon the overruling of a motion for new trial.</p> <p>The contention of the State was that the defendant had administered the poison "which produced the death of Henry S. Mitchell, in order that he might realize some twenty-odd thousand dollars of insurance carried upon the life of Henry S. Mitchell, the policies covering which were payable to Dr. Mitchell or to some member of his family. The evidence introduced by the State tended to .shcAV: that after the discharge of Henry S, Mitchell from the army he lived for some time the life of a vagrant in and around Montezuma, where the defendant was engaged in the practice of medicine and the conduct of a drug-store; that during this time an examination by a physician revealed the fact that the deceased had syphilis in an advanced stage; that the beneficiary in a certificate of insurance carried by the deceased with the Bureau of War Bisks was changed, and the same was made payable to the defendant; that with knowledge of the condition of the deceased the defendant procured the issuance of a number of insurance policies upon the life of the deceased, payable to himself or to members of his family; that in some instances the reports of the medical examination, purporting to have been filled in and signed by a physician formerly engaged with the defendant as a partner in the practice of medicine, were forgeries; that these forgeries were committed by the defendant; that premiums upon the policies were paid by the defendant, and, while remittances covering the claims under the policies were made payable to Ihe beneficiaries named in the policies, the proceeds were collected by' the defendant; and that the defendant had made an unsuccessful attempt to burn the deceased to death, and, having failed in that, resorted to the use of poison. In his statement the defendant explained that he had raised the deceased and eared for him as if he had been his own child; that the members of his family “had a lot of insurance;” that during the time the deceased was in the army he had three or four policies payable to his grandmother, the mother of the defendant; that the premiums on these policies were paid by the defendant and his mother; that defendant knew nothing of the talcing of the certificate of war-risk insurance; that the change in beneficiary in that certificate was made voluntarily by the deceased, because of the ill health of defendant’s mother, the original beneficiary; that the clothing of the deceased accidentally caught on fire, and the defendant extinguished the flames. The defendant claimed that the death was caused by the burning or the inhalation of flames. The evidence discloses that the burning occurred on December 27, 1919, and that death followed on December 31, 1919. The body was embalmed, and, after having been buried for approximately a year, was exhumed. Experts who removed and examined the viscera testified that they contained traces of arsenic, showing that the deceased had taken a sufficient amount of the poison to have produced death; and that there were practically no evidences of injury from burning. A negro physician, who was called to attend the deceased immediately after the burning, testified that the injuries were only slight. A physician who treated the deceased for syphilis testified that quite a while before the death of the deceased he had administered through the veins one dose only of “ 606.” There was expert evidence to the effect xhat this remedy is a preparation of arsenic; that the doses are ordinarily given about one week apart, in order to allow for the elimination of the dose from the system; that one dose would in no event contain sufficient of the poison to produce death; and that only a very 'small amount, if any at all, would find its way into the alimentary canal.</p>

<p>1. Two grounds of the motion for new trial have reference to the conduct of the jury, after the case had been submitted to them for their consideration, in visiting the grave of the deceased sheriff, for whose homicide the accused was on trial; and also the grave of a former attorney of that county who had volunteered to assist in the prosecution of the case. It is insisted that the jury held prayer over the grave of the deceased sheriff, and entered into an informal discussion over the grave of the attorney as to his public services, among which was his volunteer assistance in' the prosecution of this case. These grounds are more fully set out in the statement of the ease preceding the opinion. While there are counter-affidavits, each denying in part the truth of the averments upon which these grounds are based, considering all of the affidavits pro and con, a new trial should have been granted on account of the conduct of the jury as shown in these grounds.</p> <p>2. Another ground complains that after the case had been submitted and the jury were in the room provided for them, and engaged in considering their verdict, numbers of people gathered in the court-yard in sight of the jurors as they came to the windows, and one of the number of people gathered in sight of the jury tied a hangman’s knot or noose in a rope, and lifted the same in view of the jurors looking out of the windows; and that this was done several times. There are counter-affidavits denying in part the facts stated in this ground of the motion; nevertheless the importance of preserving the purity of trials by jury, uninfluenced by outside demonstrations or suggestions, requires the grant of a new trial on this ground.</p> <p>3. It is the duty of arresting officers, under circumstances affording reason to believe that their object and official character are unknown to persons whom they seek to arrest, to so inform the latter. Complaint is made in this case that the court failed to instruct the jury upon this principle of law. Had there been an appropriate written request duly tendered, it undoubtedly would have been the duty of the court to cover that principle of law in the charge. Inasmuch, however, as the case must be returned for a new trial, it is not necessary to decide whether the omission, without such a request, is reversible error.</p> <p>4. Under the facts of the case, where there was no evidence that the accused was attempting to escape, and where the offense was a misdemeanor, not committed in the presence of the arresting officer, and where the arrest took place at night, and the sheriff, in undertaking to effect the arrest of the accused, failed to disclose his official character, and it did not appear either by direct or circumstantial evidence that the official character of the arresting officer was known to the accused, it was error requiring the grant of a new trial for the court to charge the jury as complained of in the fifth ground of the motion, which ground is set out in the statement of the case preceding the opinion and also quoted in the opinion.</p> <p>5. Complaint is made that three of the jurors who served in the case were not fair and impartial, because they at the time entertained preconceived and pre-expressed opinions that the defendant should be convicted. Since the case is to be returned for a new trial, and these jurors could not under any circumstances serve again, these questions need not be decided. The remaining grounds of the motion for a new trial also concern issues which cannot arise on another trial, and will not be decided.</p>

<p>Equitable petition. Before Judge Howard. Talbot superior court. December 22, 1920.</p>

<p>The Court of Appeals requested instruction of the Supreme Court upon the following question (in Case No. 11356) :</p> <p>“Where, in a suit upon a policy of life-insurance which contains a provision that it shall be incontestable after one year from the date of its issue, except for fraud or misstatement' of age, the petition shows that the policy was in force. for more than one year, and does not show any fraud or misstatement of age, but further shows that the death of the insured was by the hands of justice more than one year after the policy was issued, is the petition subject to demurrer on the ground that the petition shows no cause of action, because the fact, alleged therein, that the insured came to his death by the hands of justice, releases the insurer from the obligation of its contract, and the payment of the policy would be against public policy ? ”</p>

Equitable petition. Before Judge Hardeman. Washington superior court. November 30, 1920. Isabella Brooks and others brought suit against C. G. Rawlings, to reform a certain deed, and for an accounting.

Equitable petition. Before Judge Searcy. Monroe superior court. January 8, 1921. (See 149 Ga. 370). W. Frank Mathews was employed by the owner of a large farm in Monroe County, to superintend the operations of the farm. The contract was in writing.

<p>,The petition set out a cause of action for specific performance, and the court erred in sustaining a general demurrer and in dismissing the petition.</p>

<p>The assignments of error on instructions in the charge to the jury, and on alleged omissions to charge, are not meritorious.</p> <p>The complaint of the judge’s interruption of counsel’s argument shows no cause for a new trial, on the facts appearing.</p> <p>The evidence authorized a finding of murder.</p>

<p>Indictment for murder. Before Judge Summerall. Coffee superior court. April 9, 1921.</p>

<p>Indictment for possessing intoxicating liquor. Before Judge Shurley. Wilkes superior court. April 20, 1921.</p>

Indictment for murder. Before Judge Kent. Laurens superior court. April 25, 1921. Marshall Bass was convicted of the murder of Annie Bass (wife of the accused) by shooting her with a gun. The exception is to a judgment refusing the defendant a new trial.

<p>Complaint. Before Judge Hammond. ^Richmond superior court. April 25, 1921.</p>

<p>Complaint for land. Before Judge Gower. Ben Hill superior court. May 2, 1921.</p>

<p>Where one intentionally shot at another and killed the person he shot at, he was guilty either of murder or of some lower grade of homicide, or not guilty, according as the evidence may have shown circumstances of excuse, justification, or mitigation; and although the crime charged involved that of shooting at another, he could not be guilty of the technical offense of shooting at another, as defined in section 115 of the Penal Codé; and the judge did not err in refusing to give that section in charge to the jury.</p>

<p>1. Where one of the jurors who tried the case was related within the prohibited degree to the plaintiff' and to one of the defendant’s counsel, and this fact was not known by the party against whom the verdict was rendered, or by any of liis counsel, and could not have been so known by the exercise of reasonable diligence, it was not error to grant a new trial.</p> <p>2. Allegations of the defendant’s answer, setting up an understanding at variance with the terms of the deed executed by the plaintiff to the defendant, and a prayer based on such allegations, should have been stricken on demurrer.</p>

<p>Equitable petition. Before Judge B. C. Bell. Calhoun superior court. January 21, 1921.</p>

<p>Eviction. Before Judge Hammond. Bichmond superior court. February 12, 1921.</p>

<p>Injunction and receivership. Before Judge Eve. Irwin superior court. October 2, 1920.</p> <p>The parties to this suit entered into a contract whereby the landowner was to furnish the land and fertilizer and perhaps the seed, and the other party was to furnish the stock and tools and to perform the labor necessary in the cultivation and gathering of the crops, and they were to divide the crops when gathered. The crops were planted and were being cultivated in accordance with the terms of the contract. It was alleged: that on the 29th day of July Lee Bussell, the defendant, organized a mob, and, undertaking to disguise himself, planned and plotted to either kill the plaintiff or drive him away from his home and from the property held by him and which rightly and justly belonged to him. In accordance with this plan the defendant, in company with four other named men who lived on the farm of the defendant, drove at night within four hundred yards of the plaintiff’s home, and, stopping the car, the defendant had J. B. Gaskins to go up to plaintiff’s home and bring him down the road under the pretense that Gaskins, with his wife and small children, were in the ditch with an automobile and needed the plaintiff to assist them in getting out. The defendant and his associates were concealed in bushes near the road at a branch, the defendant having a white cloth or handkerchief tied over his face as a disguise .or mask; and immediately upo%. the plaintiff reaching the point in the road at which the defendant and his confederates had concealed themselves, the defendant so masked stepped out and, pointing a shotgun at the plaintiff, ordered, him to throw up his hands, and proceeded to place a sheet over his head and to beat him upon the head with some kind of instrument. Plaintiff was informed that he was going to be killed, and, having but a moment to live, he begged to be allowed to pray, and while down upon his knees the defendant beat him over the head with all his might and power. Plaintiff was also shot twice in the head by some one in the crowd, and a third shot missed him as he broke away and ran. The defendant denied participation in the proceeding, and tried to create the impression that it was the work of other parties; and having failed to kill plaintiff and get possession of the joint property of plaintiff and defendant and be relieved from the payment of his debt to plaintiff, and to retain plaintiff’s watch and chain, defendant sought to frighten plaintiff by creating the impression in his mind that he was likely to be killed should he undertake to remain on the farm and in possession of the property. Plaintiff is satisfied that he saved his life only by flight on the night referred to, and his flight was at great peril to himself. He has a large family and they are all working people, and with their help he will be able to perform all the labor about gathering the various crops; but notwithstanding this, the defendant is insisting upon hiring laborers and putting them ih the crop and gathering it and charging this expense to plaintiff. Plaintiff is in actual fear of bodily harm from defendant if he has to deal with him in the gathering of the crops and dividing them, because of the fact that he is a negro and the defendant a white man; and plaintiff is old, one-armed, and suffering under the serious disability of the wounds caused by the shots and licks inflicted upon him by the defendant and his confederates. There are reputable white men. who will agree to take charge of the crops and have him gather them, and deal with the defendant in the settlement; and plaintiff is willing, if the court should think proper, for all of the costs of the receivership proceeding to be taken from his interest in the property. The prayer is that a receiver be appointed t'o take charge of the property and to hold the same subject to the order of the court, and that the crops be delivered and the plaintiff have his part, and a complete adjustment of the accounts between plaintiff and defendant. The court granted a temporary restraining order, and appointed a temporary receiver to harvest the crops by letting the plaintiff and his family perform the labor thereof. On the interlocutory hearing W. H. Cofield was continued as receiver. To this judgment the defendant excepted.</p>

<p>Under the pleadings and the evidence the judge did not err in refusing to grant an interlocutory injunction.</p>

<p>Injunction. Before Judge Eve. Tift superior court. February 28, 1921.</p>

<p>Equitable petition. Before Judge Hammond. Bichmond superior court. March 26, 1921.</p> <p>J. W. Whiteley brought suit against Garrett & Calhoun Inc., for some $14,000 damages resulting from the sale of 118 bales of cotton shipped by him to Garrett & Calhoun as cotton factor at Augusta, Georgia, it being alleged that the sale was unauthorized at the time it was made. Garrett & Calhoun filed its answer admitting certain allegations of the petition and denying others; and after admitting or denying the various paragraphs of the plaintiff’s petition the defendant answered further as follows: “ That for some years prior to 1919 this defendant had been acting as cotton factor for the said plaintiff, J. W. Whiteley, for M. S. Whiteley, of Glascock County, Georgia, the mother of plaintiff, and for whom plaintiff was and still is the general manager, having entire charge of her business affairs, and for J. W. Whiteley Company, a corporation doing business at Warren-ton, Georgia, the affairs of which are entirely under the management of the said J. W. Whiteley. Throughout the course of business with the said J. W. Whiteley, M. S. Whiteley, and J. W. Whiteley Company, this defendant dealt entirely with the said J. W. Whiteley, who fully represented M. S. Whiteley and J. W. Whiteley Company; and it was the agreement and understanding between him individually and him as representative of M. S. Whiteley and J. W. Whiteley Compaq, that, as between this defendant and the said parties, the accounts of J. W. Whiteley, M. S. Whiteley, and J. W. Whiteley Company should be treated as one; and if there were any deficit in one account and a credit balance in either of the other accounts, the said credit balance could be used for the purpose of caring for such deficit. This understanding was fully recognized and lived up to until the actions on the part of the said plaintiff immediately preceding the bringing of this suit. This defendant, during the entire dealings between it and the said three parties, always treated the three accounts as one, so far as margins were concerned, and this fact was known to the said J. W. Whiteley and acquiesced in by him, and this practice and understanding continued without criticism or objection on the part of the said J. W. Whiteley until June of 1919.”</p> <p>The defendant further answered: “It is not known to this defendant at this time just how the accounts should stand as between it and the said parties, if the contention of plaintiff be correct, and it can not be ascertained unless there- be had a final accounting in a proceeding to which all of said parties are joined. By making the said M. S. Whiteley and the said J. W. Whiteley parties to this proceeding, such accounting, if necessary, can be had and'a multiplicity of suits be avoided, and all rights be finally and promptly determined,” The defendant also averred, that, before the issues in this suit shall have been finally determined, the statute of limitations would have barred this defendant from instituting suit against the said M. S. Whiteley or the J. W. Whiteley Company. Also, that “ the said J. W. Whiteley did, on February 8, 1919, contract and agree that for the purposes of margin between this defendant and said J. W. Whiteley, M. S. Whiteley, and the J. W. Whiteley Company, their accounts should be treated as one, and that, if there were any balance to the credit of any of. said accounts, such balance could be applied to make good any deficits as far as practicable in either or both of the other accounts.” The defendant therefore, “in order to prevent a multiplicity of suits, to have an accounting between all of the parties at interest, and to prevent the injustice that would arise by reason of delay in the determination of this suit,” prayed: that M. S. Whiteley, of Glascock County, and J. W. Whiteley Co., of Warren County, be made parties; that judgment be had in favor of the defendant against J. W. Whiteley, M. S. Whiteley, .and J. W. Whiteley Company, for $916.59; that should it be determined that J. W. Whiteley is entitled to recover in this suit, “judgment in behalf of this defendant against the said M. S. Whiteley and J. W. Whiteley Company be rendered for an amount arrived at by adding to the said amount of $916.59 the amount that the said J. W. Whiteley is adjudged entitled to recover in this proceeding.”</p> <p>M. S. Whiteley demurred upon numerous grounds, among them the following: (a) “Because no cause of action is set out against this defendant in the answer of Garrett & Calhoun to the suit of J. W. Whiteley, and served upon this defendant.” (b) “Because it appears from said answer that this defendant is a resident of Glascock County, Georgia, and not a resident of Biehmond County, Georgia; and the superior court of Biehmond County, Georgia, has no jurisdiction of this defendant on the issues raised in said answer; but on the contrary, the superior court. of Glascock County is vested with jurisdiction of said suit or claim set up in said answer against this defendant.” (c) “Because no such joint interest of this defendant with J, W. Whiteley is alleged in said answer as to vest in the superior court of Biehmond County jurisdiction of this defendant as to the matters and things alleged against her in said answer.” (d) “ And further, because, while it is alleged in said answer that there was an agreement or understanding between J. W. Whiteley individually, and as representative of M. S. Whiteley, that the accounts of J. W. Whiteley and J. W. Whiteley Company and of this defendant should be treated as one, and that if there were any deficit in one account and a credit balance in the other, the latter could be used for the purpose of caring for such deficit, it is not alleged in said paragraph or elsewhere that this defendant was a party to said agreement, nor is it alleged that this defendant had any knowledge of such agreement, (e) “And defendant further demurs specially to paragraph 10, and says that if any such agreement existed as alleged, by which any deficit on the account of J. W. Whiteley or «T. W. Whiteley Company should be made good out of this defendant’s property, such agreement was illegal and void.”</p> <p>The court overruled the demurrer, and M. S. Whiteley excepted.</p>

<p>Questions certified by Court of Appeals (Case No. 12122).</p>

<p>A voluntary bankrupt has an assignable interest in the property claimed by him in his petition as exempt under the constitution and homestead laws of this State; and he may assign the property in good faith to an existing creditor before the property is set apart by the trustee in bankruptcy, and therefore before the exemption is confirmed by the referee in bankruptcy.</p> <p>The evidence did not authorize a finding that the assignment was fraudulent against creditors, under the Civil Code (1910), § 3224.</p> <p>Where an insolvent person in his voluntary petition in bankruptcy claims an exemption, under the constitution and homestead laws of this State, in a stock of merchandise, but prays that the stock of goods be sold by the trustee in bankruptcy and that he be allowed the proceeds of the sale in lieu of the stock of goods, and where the stock of merchandise is sold by the trustee in bankruptcy and the proceeds thereof are set apart to the bankrupt by the trustee in bankruptcy, and the exemption in such proceeds is confirmed by the referee in bankruptcy, an assignment by the bankrupt of'the property set apart to him as an exemption is not a sale of merchandise in bulk as contemplated by the law of sales in bulk, incorporated in sections 3226-3229 of the Civil Code of 1910; and such assignment is not affected by the provisions of said law, even though made before the sale of the stock of goods by the trustee in bankruptcy. 6</p>

<p>Questions certified by Court of Appeals (Case No. 11990).</p>

<p>Indictment for murder. Before Judge Blair. Cherokee superior court. September 1, 1921.</p>

Equitable petition. Before Judge Bell. Pulton superior court. •November 8,1920.

Divorce, etc. Before W. M. Henry, judge pro hac vice. 'Floyd superior court. December 11, 1920. In 1913 W. J. Brown instituted suit for, divorce against Hattie E. Brown.

Accusation of violating liquor law. Before Judge Eourke. City court of Savannah. December 28, 1920. On July 29, 1920, an accusation was lodged against the defendant in the city court of Savannah, charging him with a violation of the State prohibition act of March 28, 1917. This accusation was in two counts. In the first count the defendant was charged with having in his possession spirituous liquors; and in the second count he was charged with selling spirituous liquors.

<p>Temporary alimony, etc. Before Judge Cobb. Walton superior court. October 39, 1930.</p>

Equitable petition. Before Judge Lovett. Effingham superior court. December 31, 1920.

<p>1. A proceeding which, properly construed, is for the purpose of establishing a copy of a lost record of a will previously probated and admitted to record, and not- to' probate a copy of a lost or destroyed will, does not fall within the cases of which the Supreme Court has jurisdiction on writ of error.</p> <p>2. An averment that the plaintiff owns title to a specified interest in certain land, under the will the record of which is alleged to be lost, is properly construed as showing merely his right to maintain the proceeding, and does not make the case one involving title to land.</p> <p>3. Jurisdiction of the writ of error is in the Court of Appeals.</p>

<p>Action for specific performance. Before' Judge Thomas. Colquitt superior court. April 5, 1921.</p> <p>J. B. Hackett filed a petition for the purpose of requiring J. E. Ladson to specifically perform an alleged contract of sale by the latter to the former of a house and lot. The petition alleges in substance that the contract was effected by means of letters, the material parts of such letters, all dated Moultrie, Ga., being as follows: June 30, 1919, Ladson to Hackett: “Beferring to our conversation in regard to residence, will say. I could sell you the place lot eighty-five by one hundred and seven, for six thousand ($6,000).” July 7, 1919, Hackett to Ladson: “Eeferring to your letter of June 30th, and confirming my verbal understanding with you, I will take the house at the price named, $6000.00. We are to pass papers when you are ready to vacate same, the understanding being that you are to occupy same until you complete your new house.” December 30, 1919, Ladson to Hackett: “I am in a financial strain at present, and would be glad to close .up the real estate trade with you immediately. The home which I am building is costing some more than I anticipated when beginning the work, and I trust that it is perfectly agreeable to you to settle with me and receive deed promptly.” December 31, 1919. Hackett to Ladson; “Your letter of the 30th. I beg to advise that it was our understanding that whenever you gave me permission, that I would immediately pay you and secure deed to the property. It was understood that instead of your paying rent, we would just wait until such time as you could give me possession, and I would pay you the money. ' This I am ready to carry out at any time, but regret that I am not in shape to pay the money and secure deed until I secure possession.” Jan. 2, 1920, Ladson to Hackett: “I have your letter of Dec. 31st, and in reply wish to say that unless you will deliver to me remittance to cover the place which I agreed to sell to you, and receive deed immediately, it will be necessary for me to make other arrangements. Unless delayed by causes beyond my control, shall be in position to give possession on about thirty days. In the event I fail to give you possession at the time mentioned, I would, of course, expect to pay rent on the place until I did give possession. You can do as you wish about the matter; but unless I hear from you immediately with remittance, I shall proceed to make other arrangements.” Jan. 3, 1920, Hackett to Ladson: “ Your letter of January 2nd. I beg to refer you to my letter of July 7th, as follows: Eeferring to your letter of June 30th, and confirming my verbal understanding with you, I will take the house at the price named, $6000.00. We are to pass papers when you are ready to vacate same, the understanding being that you are to occupy same until you complete your new house. ’ . . I am very much surprised at your failure to carry out your agreement in this matter; however, if you insist, I beg to advise that I will be able to pay you on Monday, or as soon thereafter as you present me a warranty deed, which will be passed by my attorney, six thousand dollars ($6,000.00) in cash, and wind up this transaction, the lot being 85x107, according to your letter of June 30th.” March 9, 1920, Ladson to Hackett: “ I have decided' not to dispose of the place where I now reside, and about which we talked some time ago.” March 10, 1920, Hackett to Ladson: “Yours of the 9th. To say that I am surprised at same is putting it mildly. I bought this house from you fair and square, and as soon as I had arranged to buy it sold my lot where L had intended building, and have been waiting for possession for months. The house I am in had been rented out from me, and I have no place to go. I have arranged for furniture and rugs for this place. I have been waiting for possession for months and holding money to pay for same, and even offered you several times in person and in writing to pay for the place before I got possession if you paid rent.” March 17, 1920, Ladson to Hackett: “In reply to your letter of March 10th, wish to say that you are at liberty to proceed in any way you might deem advisable. So far as your having tendered me settlement, wish to state that you have never tendered me one penny.”</p> <p>The petition further recites that upon receipt of the letter of March 17th the petitioner tendered to the defendant six thousand dollars in lawful money of the United States, in compliance with his obligation to purchase the house and lot from the defendant, which said tender the defendant then and there refused, and further alleges that petitioner “here and now makes tender of said purchase price of six thousand ($6,000) dollars, for said real estate and dwelling-house situated thereon.”</p> <p>The defendant interposed a demurrer on the grounds, that the petition set forth no cause of action; that the alleged contract set out in the petition does not with sufficient particularity describe the land sued for; that the plaintiff did not comply with the terms of the alleged contract; that there is no legal contract set forth in the petition; and that the letters set out in the petition to constitute the alleged contract do not comply with the statute of frauds. The demurrer was sustained and the petition dismissed. The plaintiff excepted.</p>

<p>Petition for injunction. Before Judge Terrell. Heard superior court. December 10, 1920. •</p>

<p>A question of constitutional law, not raised on the trial of an action in a city court, but first made in a petition for certiorari to the superior court after verdict in the city court, was not properly presented for decision. A writ of error from the decision on certiorari was returnable to the Court of Appeals.</p>

<p>Petition for injunction. Before Judge Fortson. Banks superior court. January 8, 1921.</p> <p>6. W. Sanders brought petition against Artis and Isaac Chandler, for injunction and other relief. The petition alleged that Sandeis purchased of the defendants a certain 64.71 acres of land at the price of $12,940. After the sale had been made Isaac Chandler executed and delivered to the plaintiff his bond for title to the tract of land; and plaintiff delivered to defendant his promissory notes, one dated August 27, 1920, and due December 1, 1920, signed by the plaintiff as principal and J. J. Duncan as security, for $1941 principal, this note payable to Artis Chandler; also one note signed by the plaintiff to Isaac Chandler, dated August 20, 1920, due January 1, 1921, for the principal sum of $2588; also four notes signed by the plaintiff and payable to Isaac Chandler, dated August 27, 1920, and due January 1, 1922, January 1, 1923, January 1, 1924, and January 1, 1925, respectively, each of these notes being for the principal sum of $2102.25. It was alleged, that after plaintiff had delivered his notes as aforesaid he discovered that neither Isaac Chandler nor Artis Chandler owned the land, either jointly or severally, in fee simple, and that neither of the defendants is in position to make and deliver to plaintiff good and sufficient title to the land in the event plaintiff's notes are paid in full; that the note payable to Artis Chandler is wholly without consideration and void, and that plaintiff is unprotected, and the note is not backed up bythe bond made by Isaac Chandler to plaintiff; that before the note for $1941 became due the plaintiff was notified by W. B. Burns that all amounts due and all settlements and payments made on the land would have to be made to said Burns or A. P. Bice, and that Burns-and Bice had an equity in the land and that payments would have to be made to them; that M. ■C. Gabriel had an equity in the land, and he and other parties holding under them had a past-due note for the sum of $6000 for part of the purchase-money of the land, said note signed by Burns and Bice; that the representations made by defendants as to the title and ownership of the lands were fraudulent and made for the purpose of inducing plaintiff to purchase the land and execute his promissory notes; that acting on said false and fraudulent representations plaintiff was induced to purchase the land and deliver his notes for the same, which notes are alleged to be wholly without consideration and void; that immediately upon discovery of the fraud practiced upon him he offered to rescind the contract and deliver up his bond for title, and demanded the surrender ot his notes, which defendants refused; that plaintiff has never been in possession of the land, nor has he received any rents, issues, or profits therefrom, and the defendants have not suffered loss in any manner and can not be damaged by rescission of the contract; that since the note payable to Artis Chandler, for the sum of $1941, became due, it was transferred to Isaac Chandler, and the attorney for Isaac Chandler - notified plaintiff of the intention of Isaac Chandler to bring suit on the note to the March term, 1921, of Banks superior court; that plaintiff is remediless unless a court of equity exercises jurisdiction in the matter; and that a multiplicity of suits will result. He prayed that the defendants or either of them be enjoined from bringing suit on the notes or either of them, and that Isaac Chandler be enjoined from transferring, selling, encumbering, or in any- manner disposing of the notes described in the petition, or placing them in the hands of innocent parties for the purpose of bringing suit thereon; that the contract of purchase and all of the notes be canceled and delivered up to plaintiff; and that plaintiff have such other and further relief as in law and equity he is entitled to. A copy of the bond for title was attached to the petition.</p> <p>The defendants filed an answer in which they admitted some of the allegations of the petition and denied others. Isaac Chandlet' averred that he owns the land individually and has title to the same in fee simple, and that he is ready, able, and willing to comply with the terms of the said bond for title to the plaintiff. He also averred that he is perfectly solvent: that plaintiff knew when he bought the land that the title at that time was in W. B. Burns, and that Burns had sold it to Gabriel; that Burns and Gabriel had possession of the same until January 1, 1921; that this defendant was to settle with Burns and Gabriel so as to have title in time to comply with the terms of his bond, which he has done; and that the restraining order should be immediately rescinded. ' Defendants also filed a demurrer to the petition. On the interlocutory hearing the temporary restraining order was dissolved, and the application for permanent injunction was denied. On the interlocutory hearing the evidence was conflicting. The defendants’ offered in evidence a deed from W. B. Burns to Isaac Chandler to a certain tract of land, which, according to the evidence, included the 64.71 acres in controversy.</p>

<p>Indictment for murder. Before Judge Wright. Floyd superior • court. March 12, 1921.</p>

<p>Action for damages. Before Judge Gunn. City court of Macon. February 17, 1921.</p> <p>Mrs. Miriam L. Williams brought suit against the County of Bibb, to recover damages in the sum of twenty thousand dollars. The petition alleged in substance the following: The plaintiff was the widow of J. Walker Williams, -who met his death in Bibb Count]’, April 12, 1918. Clinton road is a public road and highway in Bibb County^, under the jurisdiction and authority of Bibb County, and was on April 12, 1918. On the date named, about eleven o’clock at night, J. Walker Williams left the city of Macon to return to his home in Monticello, Georgia, over the Clinton road. Williams was driving a light Ford car and it was necessary to cross Walnut Creek over a certain bridge which had been rebuilt about eight years previously. The flooring was of planks approximately three inches and nine inches wide. A guard-rail was maintained on each side of the bridge. The upright posts which supported and formed part of the guard were not affixed to the beams or cross-sills of the bridge, but were negligently attached to the ends of the planks which formed the floor of the bridge. The guard-rails at certain points had become rotten both as to the upright support and as to the horizontal structure. This condition had been easily observable' for twelve months or more, and the attention of the county authorities had been repeatedly called to the insecure and .unsafe condition of the bridge. There was also a hub-board intended to prevent the hub of vehicles from striking the upright posts. Sometime previous to April 12, 1918, on account of the rotten and insecure condition of the timber comprising the guardrail, a section approximately fifteen feet in length dropped at one end from the support to which it had been nailed, both being so worn and rotten the plank could not hold its position. The end of the plank which had fallen was the end toward the city of Macon. On account of the vibration caused by travel, which was intensified by reason of the insecure condition of the bridge, the free end of the loosened plank referred to. would from time to time work out into the passageway of the bridge. Persons traveling over the bridge from time to time pushed this free end against the guard-rail, where for a time it would remain, finally working out again into the passageway. Williams was unfamiliar with the Clinton road and the bridge referred to. He was driving cautiously and slowly over the public road, which he had reason to expect was reasonably safe for travel. He entered safely upon the bridge and travérsed safely approximately thirty feet. The free end of the hub-rail extended well into the passageway of the bridge, so that the wheel of the light automobile struck against the hub-rail and was thrown over towards the left side of the bridge and against the guard-rail, which was intended to protect that side of the bridge. The upright posts immediately gave way, with the result that the automobile in which Williams was riding fell from the bridge to the ground and rocks below; in the fall Williams was pinioned and crushed, from which injuries he died.</p> <p>The defendant filed an answer denying the material allegations of the petition, and averring that the death of Williams could have been avoided by the exercise of ordinary care on his part, and that he was guilty of negligence which contributed to his injury and caused the same. The jury returned a verdict for the plaintiff in the sum of $7,500. A motion for new trial was overruled, and the defendant excepted. Other facts necessary to an understanding of the questions involved will appear in the opinion.</p>

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

<p>Appeal. Before Judge Malcolm D. Jones. Bibb superior court. May 13, 1921.</p>

<p>Equitable petition. Before Judge Tarver. Bartow superior court. January 12, 1921.</p>

<p>Equitable petition. Before Judge Tarver. Bartow superior court. January 14, 1921.</p>

Indictment for murder. Before Judge Hutcheson. Newton superior court. May 7, 1921. During the March term, 1921, of Newton superior court John S. Williams and Clyde Manning were jointly indicted for the alleged murder of Lindsey Peterson, on March 19, 1921, previously to the finding of the bill, by weighting his body with a sack of rocks and drowning him in Yellow River, in that county.

<p>Habeas corpus. Before Judge Irwin. Paulding superior court. May 20, 1921.</p>

<p>Complaint. Before Judge Pendleton. Fulton superior court. May 21, 1921.</p>

The Court of Appeals propounded to this court the following questions (in Case No. 11671) : “ This was a suit to forfeit a bail-bond given in a criminal case.

<p>Equitable petition. Before Judge Hodges. Franklin superior court. January 19, 1921.</p> <p>Martha Crump and Susie Crump instituted an action against J. W. Crump and J. C. Crump and John W. Wansley, sheriff. The original petition as amended alleged the following, in substance: Martha Crump was the mother of her coplaintiff, Susie Crump, and of the defendant J. W. Crump. In 1903 the plaintiffs and J. W. Crump purchased from J. B. Hall a tract of land containing 231 acres, more or less, for $2500. At the time of the purchase it was agreed in parol that J. W. Crump should give his individual notes for the purchase-price of the land and talje a bond for title in his own name, and the plaintiffs should pay one half of the purchase-price; and when the land should be fully paid for, J. W. Crump would exécute to the plaintiffs a deed to one half of the land. On January 25, 1911, when there was a balance of $1500 due on the land, plaintiffs and J. W. Crump decided to take a loan for that amount from a loan company, to pay off the debt. By mutual agreement between the parties a loan for the sum stated was negotiated by J. W. Crump, who executed his individual note and security deed to the lender, and received a bond for title in his own name. The money so obtained was applied to the payment of the balance of the purchase-price, and a deed was executed by Hall to J. W. Crump individually. In 1906 the plaintiffs and J. W. Crump purchased another tract of land from Hall, containing 100 acres, more or less, for $6000. With reference to this purchase there was a parol agreement between plaintiffs and J. W. Crump, in all respects similar to that already stated as applying to the former transaction. On September 18, 1911, when there was a balance of $1100 due on the purchase-price, plaintiffs and J. W. Crump decided to make another loan for the purpose of paying such balance due and obtaining a deed from Hall. A loan of $2500 was negotiated by J. W. Crump with the same loan company, and by agreement between plaintiffs and J. W. • Crump the latter executed his individual note and security deed to the lender, and received a bond for title from the loan company in his individual name, and obtained the amount of the loan, from which he paid $1100, the balance due to Hall, and used the remaining $1400 in the construction of a dwelling on the portion of the 100-acre tract above mentioned, to be occupied by himself as a residence. After making such loans plaintiffs and J. W. Crump agreed that they would sell the 231-acre tract, and, finding several purchasers therefor, sold it in separate tracts for sums aggregating $3500. The several transactions were had and made in the .name of J. W. Crump. The purchasers assumed the outstanding debt of $1500 owed to the loan company, and paid $2000 cash. It was agreed between the plaintiffs and J. W. Crump that from the cash so received he would discharge the balance due on the loan outstanding against the 100-acre tract; but he did not do so, and on the contrary he applied it all to his own use, and negotiated with the loan company for’ an extension of the loan. From the timé of the-purchase of the 231-acre tract in 1903 until 1917, J. W.’ Crump and plaintiffs bought horses and mules for their joint uses, “ said horses and mules being bought by the said J. W. Crump and paid for with the proceeds of said farm,” and within the last three years they owned at one time eight head of horses and mules worth in the aggregate $1500, one half of which was paid by plaintiffs, all of which horses and mules, have either been sold by J. W. Crump or kept for his own use. At the time the aforementioned contracts were made J. W. Crump was unmarried, and until about January 1, 1914, he made his home with petitioners “under said agreement, where he paid no board and had his lodging and laundry free from any and all cost to him, . . of a yearly value of $120.00.” Since the year 1906 petitioners have lived on the 100-acre farm, “working on said farm; and that outside of clothing and feeding themselves and family, tuition for the younger children in school, and the provisions consumed by them for their personal use, the remainder has gone into the purchase-price of said land, stock, and farming tools. . . The proceeds of said labor has been $800.00, and the same has'been used and expended by the said J. W. Crump in addition to the yearly rental of [the 231-acre tract], which is worth $200.00 annuaby, and which the said J. W. Crump received from the year 1904 to the year 1913, inclusive; so that petitioners allege that they have turned over to the said J. W. Crump and he has received from the proceeds of said two farms the sum of $1000.00 annually for the past ten years, with which to pay for said land and to pay other obligations incurred in connection with the business interest of petitioners and the said J. W. Crump. . . There was a full and complete settlement between themselves and the said J. W. Crump in September, 1914, with reference to the lands owned by them, and that a division of said lands as hereinbefore alleged -was made, and petitioners remained in possession of said described 46 acres under said settlement and division as their property.” At the March term, 1920, of Franklin superior court, “ pursuant to a compromise, a verdict was taken, and a decree . . directed the clerk of the superi- or court of said county to issue a writ of possession against J. C. Crump and in favor of J. W. Crump, and that said compromise was a means by which said J. W. Crump was- endeavoring and conspiring with J. C. Crump to defraud said petitioners out of their interest in said tract of land, and that attorneys for said J. W. Crump expressed their intention of ousting not only J. C. Crump but your petitioners also, and that said move was a conspiracy by and between J. W. Crump and J. C. Crump to unlawfully deprive petitioners of possession of said land.” While proceedings were pending between J. C. Crump and J. W. Crump, “ the said J. W. Crump, by means of distress warrants and injunctions, had all the rents, issues, and profits withheld from petitioners for the years 1916, 1917, 1918, and 1919, . . [and] they were denied the benefit of any of said rents, and the same was used and applied to the use of J. C. and J. W. Crump under [and] by reason of a pretended compromise.” Petitioners “have given bond in the sum of $1500 annually for rents of said lands for the year 1920, payable to J. W. Crump, in the event he recovers in said suit.” Such rents are “ of the value of $1500.” J. W. Crump has made certain deeds “describing the lands in dispute, attempting to convey same to different parties. That said deeds is a cloud on petitioners’ titles.” The prayers were: (a) that the sheriff and J. W. Crump, his agents, attornej'S, and employees be restrained and enjoined from interfering with petitioners’ enjoyment and use of the property, (b) That J. W. Crump be required to execute to them a deed to the 46 acres for which plaintiffs were suing, (c) That “ all incumbrances be delivered in court and canceled,” etc. (d) For cancellation of certain deeds as clouds upon plaintiffs’ title. (e) For general relief.</p> <p>The court rejected an amendment which alleged: “That in pursuance of the agreement and division of said 100 acres of land, plaintiffs entered into exclusive possession of the western half of the 100 acres, which consists of 46 acres, more or less, and more fully described in last half of paragraph two amended petition; and that their possession was and is evidenced by the exercise of absolute control and dominion over said premises, to the exclusion of the defendants and all other persons whatsoever, and to the extent of those claiming under pretended deeds from defendants. That from the time of said division plaintiffs’ possession has been adverse to defendants, plaintiffs and defendants both recognizing the dividing lines as run and made and established, as more fully set out in the amended answer, by the county surveyor, J. Ii. Whitworth, plaintiffs relinquishing any claim or right they had in the other half of said land, which consists of 54 acres, more or less, and deféndants relinquishing any claim or right they may have had in the said 46 acres known as the western half on which plaintiffs reside. That since said division plaintiffs and defendants both have recognized and observed the lines as established by said county surveyor in making the division, and their possession has extended to the lines as alleged were established, and each to the exclusion of the. other from the respective premises, by only controlling or attempting to control up to sa-id lines. That defendants recognized the division and lines then established, and have not exercised any control over the said 46 acres, but only over the 54 acres, and recognizing the lines as established at the instance of the defendants.”</p> <p>The defendants demurred to the petition as amended, on the ground that it failed to set forth a cause of action, and that the allegations of the petition amounted to an attempt to set up an express trust by parol. The judge sustained the demurrer and dismissed the petition. Error was assigned upon this judgment, and upon the judgment refusing to allow the proposed amendment.</p>

<p>Claim. Before Judge Sheppard. Tattnall superior court. February 22, 192.1.</p>

<p>Indictment for murder. Before Judge Irwin. Haralson superior court. February 16, 1921.</p>

<p>Equitable petition. Before Judge Summerall. Ware superior court. February 26, 1921.</p> <p>J. A. Smith brought an equitable petition against Satilla Pecan Orchard and Stock Company, as a corporation, A; F. Moor, J. E. Lawrence, and J. E. T. Bowden,- alleging in substance the following: Plaintiff is the owner of 75 shares of the capital stock of the Satilla Pecan Orchard & Stock Co. The other stockholders were Moor and Lawrence. The first-named defendant was incorporated with an authorized capital stock of $50,000 of the par value of $100 per share. Four hundred sharés of the stock of the par value of $40,000 had been issued to Moor, and 10Ó shares of the par value of $10,000 had been issued to Lawrence. Moor had deeded to the corporation, in payment of his stock, a tract of 400 acres of land in Ware County, which was described in the petition. It was alleged that Lawrence had paid nothing for his stock, and that he had left the State, carrying with him the papers and records belonging to the corporation; and that Moor, denying the fact of the existence of the corporation "or the conveyance of any land to it, had conveyed the land to the defendant Bowden, who had bought with notice of plaintiff’s right. The allegations of the petition, with reference to Bowden’s connection with the land, are that in August, 1918, plaintiff had filed a previous suit for the same purpose for which the present suit is filed, and had obtained an interlocutory injunction restraining Moor from selling the land, and that notwithstanding the injunction Moor had entered into a contract of sale with Bowden in November, 1919. On the trial of the former suit the plaintiff was nonsuited on December 3, 1918. After the nonsuit, on December 6, 1919, Moor conveyed the land to Bowden. No suit was pending at the time of the conveyance to Bowden, and the present suit was filed February 16, 1920. When Moor sold the property (land) he took notes and a security deed payable to him as follows: $2250.00 due January 15, 1920, and $3000.00 due on the first day of January in each year of the years 1921, 1922, 1923, and 1924. It is necessary for the protection of the rights of plaintiff that a receiver be appointed to take charge of the property and the affairs of the corporation, to secure from Lawrence the books and records of the corporation, etc. The prayers of the petition were: (1) That a receiver be appointed to take charge of the corporation, the Satilla Pecan Orchard & Stock Co., and wind up its affairs and pay over its assets under the direction of the court. (2) That the receiver be instructed to take charge of the real property described in the petition as belonging to the corporation, and dispose of it for the benefit of the corporation, under the order of the court. (3) That the property be decreed to be the property of the Satilla Pecan Orchard & Stock Co. (4) That the receiver be instructed to take charge of and impound in court the notes and security deed given dv Bowden to Moor, until the court decides to whom the title to the real estate belongs. (5) That the receiver be instructed to secure from Lawrence, or any other person having them in possession, all the corporate records of the Satilla Pecan Orchard & Stock Co. (6) That the receiver be instructed to collect from Lawrence, for the benefit of the corporation, the sum of $10,U00 in payment of his stock subscription referred to in the petition. (7) That Lawrence be required to pay into court said sum for the benefit of the corporation. (8) That all the defendants be required to produce the evidence called for in the 37th paragraph of this petition (the minutes, stock-book, stock-certificates, stock-subscriptions of the Satilla Pecan Orchard & Stock Co., and the deed from Moor to the corporation, all in the possession of Lawrence or' Moor). (9) That Bowden be restrained from selling, transferring, or encumbering the property described in the petition, and from paying any part of the purchase-price thereof until the further order of the court. (10) Until an interlocutory hearing is had, that a temporary restraining order issue, granting the relief prayed for in the last paragraph of the petition. (11) Such other and further relief as to the court may seem meet and proper. (12) That process issue, etc.</p> <p>The defendant Moor answered, that he owned for several years a valuable farm in Ware County, and that the plaintiff, Joel Smith, and the defendant, J. E. Lawrence, a professional stock salesman and promoter, had conspired to take away from Moor a large interest in his farm without paying him anything for it; that plaintiff and Lawrence had been acquaintances for many years, and had been engaged previously in stock-selling ventures; that plaintiff and Lawrence came to Way cross together, and Lawrence proposed to Moor to organize a corporation to take over and operate Moor’s farm; that Lawrence proposed to borrow $500 from Smith, the plaintiff, and to secure him with fifteen shares of the stock of the corporation, which had been issued to Lawrence by the president and secretary and treasurer of the corporation, and the money was to be used for purposes 'of the organization of the corporation; and also to transfer to the plaintiff sixty shares of the stock of the corporation to secure plaintiff against any loss on account of an outstanding mortgage against Moor’s farm; that the plaintiff gave Lawrence $50 personally and executed his note to Lawrence for $350, and only $100 of the proposed loan from the plaintiff was made available for corporation purposes; that Lawrence failed to keep any of his agreements with Moor, and Moor refused to have anything further to do with Lawrence or with the corporation; that Moor had never conveyed the land to the corporation, and refused to recognize as binding upon him any of the things that were done in connection with the organization of the corporation, because they were all done as part of the scheme developed in pursuance of the conspiracy between plaintiff and the defendant Lawrence to rob this defendant; that, several months after this, Moor had repudiated Lawrence and his scheme and the corporation; he learned that plaintiff claimed to own 75 shares of stock in the corporation and to have paid value therefor. Moor thereupon made an investigation and discovered that plaintiff had loaned or advanced to Lawrence $400 of the $500 which plaintiff had agreed to furnish the corporation; and that no consideration had passed from the plaintiff, binding upon the corporation or the defendant Moor as to the transfer of the 15 shares of stock, except $100-which plaintiff had made available for corporation purposes. This defendant also discovered that the only consideration moving from the plaintiff for the 60 shares of stock transferred to him was the alleged settlement of a claim which plaintiff had against the defendant Lawrence, growing out of another stock-selling venture in which plaintiff and Lawrence had been engaged in 1912. Plaintiff claimed that Lawrence had sold certain stock owned by plaintiff and defendant jointly in the Universal Ice Co., and had failed to account to plaintiff for his part of the proceeds of the sale of the stock. Not only was the plaintiff’s claim against Lawrence wholly worthless as a matter of fact because of the total insolvency of Lawrence known to plaintiff, but plaintiff’s claim was also worthless as a matter of law; and plaintiff had been unable to secure a judgment in his favor upon the claim in any court. Plaintiff had filed a suit upon the claim in the superior court of Baldwin County against Lawrence, and had stricken from the suit all reference to the claim growing out of the joint stock-selling venture between plaintiff and Lawrence. Subsequently plaintiff had filed another suit in the superior court of Baldwin County against Lawrence, which suit was pending at the time plaintiff alleges he accepted the 60 shares of stock in settlement of his claim. The suit was tried, and verdict and judgment were rendered against plaintiff in.February, 1918, many months after plaintiff claimed he accepted the stock in settlement of the claim involved in the suit. Subsequently, in June, 1918, plaintiff filed in the superior court of Baldwin County a motion to reinstate the suit, and subsequently withdrew the motion on August 19, 1918. This defendant says that if plaintiff ever had any claim against Lawrence, these facts show that plaintiff never settled or released it, and that no consideration passed from the plaintiff for the transfer of the 60 shares of stock referred to, and that if there ever existed such a settlement it was obtained by the fraud of Lawrence and is not binding upon the plaintiff, and the -plaintiff still has his remedy against Lawrence; in any event the only consideration that plaintiff ever parted with, binding upon this defendant for any part of the 75 shares of stock transferred to plaintiff, was the $100 turned over by plaintiff for purposes of the organization, and this defendant has often tendered to plaintiff payment of the sum of $100 to reimburse him therefor. The defendant further answered, that he had entered into a- contract with J. E. T. Bowden for the sale to Bowden of the land in controversy in Ware County, conditioned upon this defendant being able to deliver good title thereto; that plaintiffs suit brought against the Satilla Pecan Orchard & Stock Co.'and Lawrence was nonsuited on December 3, 1919, and on December 6, 1919, this defendant conveyed his farm to Bowden and Mrs. Williams, as he had a perfect right to do, that the sale was made in good faith and without any purpose on the part of Bowden or this defendant to do injury to any legal right of plaintiff, etc.</p> <p>The defendant Bowden also filed an- answer neither admitting nor denying, for want of information or sufficient information, a large number of the paragraphs of the petition, denying other paragraphs, admitting a few immaterial ones, and averring that before he purchased the land in controversy he had an abstract of title made to the same, and, relying upon his attorney’s certificate to the effect that the title to the property was clear, purchased it without knowledge or notice of the pendency of any suit or litigation affecting same.</p> <p>On the trial of the case the jury returned a verdict for the defendant. A motion for new trial was overruled, and the plaintiff - excepted. Other facts will sufficiently appear in the opinion.</p>

<p>Equitable petition. Before Judge Irwin. Douglas superior court. March 3, 1921.</p>

<p>The rule that the first grant of a new trial will not be disturbed, unless it affirmatively appears that the verdict was absolutely demanded, controls in a case where the general grounds of the motion and ail but two of the special grounds were abandoned, and neither nor both of these two, on which the grant was solely based, would authorize the sustaining of the motion.</p>

Equitable petition. Before Judge Thomas. Lowndes superior court. May 17, 1921. M. E. Weldon et al. brought an equitable petition against B. IT. Weldon and I. J. Weldon, for the recovery of a three-fourths interest, or such other interest as might appear, in the west half of lot of land 52 in the 12th district of Lowndes County; and for other relief.

<p>1. An administrator can not lawfully sell property held adversely to the estate by a third person, and a deed made by an administrator to land when the same is held adversely to the estate by a third person is void. Civil Code (1910), § 4033; Booth v. Young, 149 Ga. 276 (99 S. E. 886); Davitte v. Southern Ry. Co., 108 Ga. 665 (34 S. E. 327).</p> <p>2. Under the undisputed evidence in this case the deed sought to be canceled was made by an administrator pursuant to an administrator’s sale at a time when the land described in the deed was held adversely to the estate by a third person.</p> <p>3. Complaint is made and error is assigned on two excerpts from the charge of the court. It is complained that the instructions are not applicable to the issues, and that the court failed to charge in connection therewith other and additional principles of law. The instructions of the court as given to the jury were not in themselves erroneous. “ It is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given. Grant v. State, 152 Ga. 252 (109 S. E. 502), and authorities cited.</p> <p>4. The court did not err in admitting the evidence of the plaintiff in the case, of which complaint is made in the first and second grounds of the amendment to the motion for a new trial.</p> <p>5. The verdict was supported by the evidence.</p>

<p>Injunction. Before Judge E. C. Bell. Dougherty superior court. May 30, 1931.</p>

Equitable petition for discovery. Before Judge Pendleton. Fulton superior court. May 31, 1921.

<p>Equitable petitions. Before Judge Pendleton. Eulton superior court. May 31, 1921.</p>

<p>Equitable petition. Before Judge Lovett. Jenkins superior court. December 30, 1920.</p> <p>The substance of the petition in this case is as follows: Bow-land Lovett, petitioner, was in the possession, under a bond for title with part of the purchase-money paid, of two described parcels of land, one containing 47-acres and the other 19 acres. John E. Parker paid for petitioner to the seller of the land to him the balance of the purchase-price, taking to himself a conveyance of the land, and giving to petitioner his bond for title upon the repajunent by him of the money advanced for him by Parker, and for which Parker had taken his notes. Petitioner subsequently traded the 19-acre tract to the Brinsons in exchange for certain land they owned; and to effectuate this transaction Parker conveyed the 19 acres to the Brinsons, took from them a conveyance to the land they had traded to petitioner, and agreed to give petitioner a* new bond for title covering the 47-acre tract and the Brinson land. ■ Parker had the new bond prepared, but died without having delivered it to petitioner. Prior to the death of Parker, petitioner transferred to Daniel Sons & Palmer Company the bond for title that Parker originally gave him, and that company had the bond marked canceled on the record, and the company, or the clerk of the superior court, or some one unknown to petitioner, and without his knowledge or consent, delivered it, as petitioner is informed and believes, to Parker, and he understands and believes the bond is now in the possession of the defendants. Parker died intestate, owing no debts, and leaving as his only heirs at law his widow, a son and daughter, both of age, and three minors, the children of a deceased son. There has never been any administration upon Parker’s estate, and it is not likely there will ever be, as prior to his death he divided among his heirs all of his estate except the money owing him by petitioner, and he requested his heirs to divide this among themselves, and not to have any administration. Petitioner is neither an heir nor a creditor, and he is not entitled under the law to have an administration. The heirs of Parker have selected his widow to manage their interests in his estate, and she has done so through her son, who is of age; and petitioner has tendered to them the balance he owes as purchase-money for the land. The suit is brought by petitioner against the six heirs of Parker. The prayers are, that guardians ad litem be appointed for the minors; that petitioner be permitted to pay into court the balance of the purchase-money due, "to be distributed among the heirs aforesaid or paid out as the court may see fit and proper to an administrator of John B. Parker, if one should be appointed, and that it be decreed that the legal as well as equitable title in the 69 acres of land last described, and upon which plaintiff now resides, and which is in his possession, is the property of plaintiff, and not the property of defendants or the estate of John B. Parker, and that they have no interest in said land that "should it be held that an administrator upon the estate of John E. Parker is a necessary party to this action, then, in order to save after' expense and costs, petitioner prays that this court, having concurrent jurisdiction with the court of ordinary of Jenkins county, Georgia, appoint an administrator upon said estate, and that said administrator be made a party to this action, by an appropriate order and service.” There was also a prayer for general relief.</p> <p>Defendants demurred to the petition, on the ground that the suit could not proceed without an administrator of the estate of John B. Parker being a party, and that the action could be maintained only against such an administrator, and not against the heirs. The demurrer was sustained on the ground that an administrator of the estate was a necessary party. In the judgment sustaining the demurrer the judge stated that the prayer for the appointment of an administrator was not insisted upon. Petitioner excepted.</p>

<p>Injunction. Before Judge Melclrim. Chatham superior court. November 30, 1920.</p> <p>On February 10, 1920, the Chain Stores Leasing Company of New York leased to S. Charles Wolff the premises known as No. 43 Barnard street in the city of Savannah, for the term of three years, six and one half months, from October 1, 1920, and ending April 15, 1924. The written lease contained this provision: “It is further covenanted and agreed that during the time said premises shall be occupied by lessee, the lessor shall not rent any of its other property facing Barnard street between Broughton street and Congress street lane for the sale of men’s and boys' hats, caps, and other furnishings.” This lease also contained this covenant: “ It is expressly stipulated, covenanted, and agreed that all the terms, provisions, conditions, covenants, and agreements contained in this agreement are to apply to and be binding upon the parties hereto, their legal heirs, representatives, and assigns.”</p> <p>On February 2, 1920, said Chain Stores Leasing Company of New York leased to the Federal System of Bakeries of Georgia, their heirs, executors, administrators, successors, or assigns, amoneother property, Nos. 45 and 47 Barnard street in the city of Savannah, “to be used as a bakery and not otherwise.” These premises faced Barnard street 'between Broughton street and Congress street Jane. This lease contained this stipulation: “Lessee has the right to sublet said premises as a whole, or any part thereof, to any reputable business, only after obtaining the written consent of lessor; such subletting is not, however, to release said lessee from this or any part of its obligations under its lease.”</p> <p>On November 23, 1920, the S.tillwell Eealty Company, for the Federal System of Bakeries of Georgia, leased the premises at 47 Barnard street to Lew W. Eosen to January 1, 1921, with the privilege of leasing for one year if offer of $225 per month was accepted, or if any other offer was accepted; and the following receipt was given:</p> <p>" Savannah, Ga., 11-23-20.</p> <p>“ Eeceived from Lew W. Eosen $225.00, rent to Jany. 1st, 1921, with privilege of leasing for one year if offer of $225.00 month is accepted, or if any other offer is accepted.</p> <p>Stillwell Eealty Co.”</p> <p>W. H. Stillwell acted for the W. H. Stillwell Eealty Company in renting this property for the Federal System of Bakeries of Georgia. It does not appear that there was any written lease from the Federal System of Bakeries of Georgia to Eosen; and there was no written consent from the Chain Stores Leasing Company for the Federal System of Bakeries of Georgia to _ sublet said premises to Eosen.</p> <p>' Wolff filed his petition against the Chain Stores Leasing Company, the Federal System of Bakeries of Georgia, Stillwell Eealty Company, W. H. Stillwell, and Lew W. Eosen, in which he sought to enjoin the defendants from entering into any lease or rental contract under which Eosen would be permitted to conduct a business for the sale of men’s and boys’ clothing, hats, caps, or other furnishings, and Eosen from conducting such business at 4:7 Barnard street. He alleged that if Eosen should be permitted to conduct at 47 Barnard street a men’s and boys’ clothing'and'furnishing business, he would be damaged in an irreparable manner, as his damages could not be easily computed.</p> <p>Eosen filed his motion to dismiss the- plaintiff’s petition on the grounds, first, because it set up no equity; second,'because it did not pray for a permanent injunction; and third, because any cause of action which the plaintiff might have is against the Chain Stores Leasing Company, and as there is no allegation that the said landlord is insolvent, or unable to respond in damages, or any other reason given why a court of equity should intervene and' deprive the defendant of his legal rights. In his answer Eosen set up that Stillwell had rented him the premises at 45-47 Barnard street, and that the contract of rental had been completed, and the act sought to be enjoined had been performed prior to the issuance of the restraining order in this case.</p> <p>Wolff, among other things, testified that he was conducting a general business for the sale of men’s and boys’ clothing, hats, caps, and other furnishings at No. 43 Barnard street under his lease. On November 24, 1920, Rosen called to see him to get the keys to the store at 47 Barnard street next door to his store, and told Wolff that he was going to open the store for the sale of men’s and boys’ clothing and other commodities. He told Rosen that he could not open that kind of business at that place, as his lease would prevent him. The next morning he took his lease around and showed it to Rosen. If Rosen is permitted to open this business next door to him it will do him a great deal of damage. He could not estimate the damage in dollars and cents. Rosen is a large wholesaler and could sell goods cheaper than Wolff could buy them. On or about September 20, 1920, he called the attention of W. H. Stillwell, agent of the Federal System of Bakeries of Georgia, to the fact that his lease from the Chain Stores Leasing -Company contained a clause prohibiting the leasing of the adjoining store, No. 47 Barnard street, to any one for the purpose of conducting a business similar to his.</p> <p>Rosen testified that he called on Wolff at the direction of W. IT. Stillwell, agent for the Federal System of Bakeries, for the key to No. 47 Barnard street. At the time he called on Wolff, on the 24th of November, he had already completed his arrangements witli Stillwell and had rented the place known as No. 47 Barnard street. He had paid Stillwell $225 as rental for the place from that date to the first of January, with the option on his part for an additional term for one year from January 1, 1921, at the rate of $225 per month, if that amount was acceptable to the Federal System of Bakeries, and, if that amount was not acceptable, then at such rate as would he acceptable to them. He proposed to enter the business at once, open the store, and conduct it as a going concern indefinitely. After leasing the store from Stillwell and when he went to get the keys from Wolff the latter told him he could not rent it because of the terms of his lease. That was the first he knew of any restrictions on the place, as Stillwell had told him that he could conduct any business there. The next morning Wolff called to see him and showed him his lease. The only thing he did prior to the time Wolff notified him of the provisions of his lease, which was at the time he called for the keys to the store at 47 Barnard street, was to pay to Stillwell $225 as rental for the premises.</p> <p>In the lease from the Chain Stores Leasing Company to the Federal System of Bakeries there was this stipulation: “ It is expressly stipulated, covenanted and agreed that all the terms, provisions, conditions, covenants, and agreements contained in this agreement are to comply [?] and be binding upon the parties hereto, their legal representatives and assigns.” It was likewise stipulated that the rental under this lease should be paid to Forrest & George Adair, their successors or assigns, as the agents of the lessor. Henry Robinson, a witness for the plaintiff, testified that he was connected with the Chain Stores Leasing Company and with Forrest & George Adair, who managed the stores of the Chain Stores Leasing Company. He was one of those in charge of the renting of the stores to the Federal System of Bakeries. W. H. Toole Jr. has equal authority with him. The Federal System of Bakeries was never given permission to rent No. 47 Barnard street, Savannah, to Lew W. Rosen, to be used as a clothing store. He was testifying from the file relating to this matter. Mr. Collins, vice-president of the Federal System of Bakeries., acknowledged to him over long-distance telephone, on Friday preceding the hearing in this case, that he never asked the Chain Stores Leasing Company for permission to subrent No. 47 Barnard street.</p> <p>The defendant introduced the following extract from a letter dated October 21, 1920, addressed to M. A. Collins, vice-president of the Federal System of Bakeries, and signed “ Forrest & George Adair, by W. H. Toole, Jr.,” reading as follows: “The only restrictions we have on the property at the corner of Broughton and Barnard streets, Savannah, is a shoe store.”</p> <p>There was introduced in evidence a telegram from Forrest & George Adair to the Federal System of Bakeries, dated November 24, 1920, reading as follows: “ We understand Stillwell, your Savannah representative, desires to lease your Barnard street store for clothing business. This can not be done, as it is in violation of Wolff lease. Building is restricted for further leasing to shoes, men’s clothing, and shoe repair.”</p> <p>A reply telegram from .M. A. Collins, to Forrest & George Adair, dated November 24, 1920, was introduced in evidence. This telegram read as follows: “Your telegram. See your letter of October twenty-first, in which you state quote the only restriction we have on property at Barnard street and Broughton Savannah is a shoe store (stop). We acted in accordance with this letter as above quoted and can not understand your present attitude (stop). Stillwell was not authorized to sublet the clothing store until after receipt of this letter.”</p> <p>There was introduced in evidence a letter from Forrest & George Adair, signed by Henry H. Bobinson, dated November 24, 1920, i:o Morris Bernstein, in which the writers stated that they had just received from Bernstein a telegram stating that Stillwell, representing the Federal System of Bakeries, was about to lease their Barnard street store to a client for the purpose of conducting a clothing business, and in which they stated that they had wired Mr. Collins, vice-president of the Federal System of Bakeries, that this could not be done. They further wrote that “ in fact in subleasing at all it is necessary for the bakery to secure written permission of the lessor.” They further stated that Mr. Wolff could rest assured that they would not give permission to any one to conduct a clothing business in the store adjoining him.</p> <p>The court granted a temporary injunction, and this judgment is assigned as error.</p>

Petition for injunction. Before Judge Pendleton. Fulton superior court. December 23, 1920. Plaintiffs filed their equitable petition on their behalf and on behalf of all other persons similarly situated, seeking to have the “ barber act ” and its administration declared to be unconstitutional. The plaintiffs are residents of Georgia. The suit is brought against E. E. Eollins, L. E. Cooper, and W. H. Bedgood as members of the State Board of Barber Examiners.

<p>Equitable petition. Before Judge Walker. Warren superior court. December 30, 1920.</p>

<p>Equitable petition. Before Judge Cobb. Clarke superior court. December 29, 1920.</p>

<p>Under the facts the substituted service of. the summons from the municipal court of Atlanta was in compliance with the statute on the subject.</p>

<p>Action for breach of warranty. Before Judge E. D. Graham. Sumter superior court. December 20, 1920.</p>

Equitable petition. Before Judge Hammond. Bichmond superior court. May 21, 1921. The facts, as they appear from the petition as amended, with exhibits, are substantially as follows: Green H. Jordan died testate on or about February 15, 1855.

<p>]. The bill of exceptions was not subject to dismissal for lack of a sufficient assignment of error. Patterson v. Beck, 133 Ga. 701 (66 S. E. 911).</p> <p>2. Where a testator devised certain land to his widow for life, with remainder over to his four sons, lsham,' Edwin, John, and James, and also devised another tract of land directly to the sons, with the added words: “ should either of said sons die without issue, then their portion of all the lands given them shall go to the survivor of said four sons or their heirs, share and share alike,” such devise “ vested in each one of the four sons named a defeasible estate in fee, subject to be defeated upon his death without issue.” And where in such case Edwin died without issue, his share in the land devised vested in the three surviving brothers in remainder in fee; and where such share was divided into three parts between the three surviving brothers, who went into possession of their respective shares, a judgment creditor of one of the three (James) could sell his fee-simple interest in such land, and a purchaser for value at the duly authorized sheriff’s sale of such interest would secure a good title thereto as against a surviving brother (John) and the children of a deceased brother (lsham), who sued to recover the land so sold at sheriff’s sale. Accordingly, it was error for the court, to whom was submitted the case upon an agreed statement of facts without the intervention of a jury, to find in favor of the plaintiffs against the defendant for the land in controversy.</p>

<p>Equitable petition. Before Judge Jones. Hall superior court. December 15, 1920.</p>

<p>Equitable petition. Before Judge Gower. Ben Hill superior court. May If, 1921.</p>

<p>Partition. Before Judge Sheppard. Evans superior court. December 2, 1920.</p>

<p>Divorce. Before Judge Cobb. Gwinnett superior court. January 6, 1921.</p>

<p>1. Where the purpose is to declare a public office vacant, any citizen and taxpayer may file a proceeding in the nature of quo warranto.</p> <p>2. Membership of a county board of education is a public office.</p> <p>3. The provision in section 78 of 'the act approved August 19, 1919 (Acts 1919, p. 288), relating to the codification of the school laws of Georgia, that “ The county board of education shall consist of five (5) members as now provided by law and selected by the grand jury as now provided by law, except that the grand jury in selecting such members shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality,” is mandatory, and the election of a member of the county board of education in violation of this provision creates no title to the office in the person thus selected;, and quo warranto proceedings will lie for the purpose of declaring such office vacant.</p>

Equitable petition. Before Judge Kent. Twiggs superior court. March 2, 1921. The essential facts alleged in the petition brought by Stokes against Humphries and Waters are as follows: Stokes held an option on a tract of land belonging to the Napiers, for $30,000.

<p>Ejectment. Before T. S. Hawes, judge pro hac vice. ■ Decatur superior court. April 9, 1921.</p>

<p>Alimony, etc. Before Judge Gower. Wilcox'-superior court. May 2, 1921.</p>

Equitable petition. Before Judge Hutcheson. Newton superior court. February 15, 1921. W. B. Bailey, W. A. Turner, and J. J. Hunt brought their petition against J. H. Bonner, and alleged in substance the following: On August 22, 1919, the plaintiffs and the defendant entered into a written contract for the sale and purchase of a stock of goods and good will of thé defendant.

Complaint for land. Before Judge Park. Hancock superior court. May 21, 1921. Suit in the statutory form was brought by Walker, for the recovery of certain land with mesne profits. The trial resulted in a verdict for the defendants. A motion for new trial, as amended, filed by the plaintiff, was overruled, and upon that judgment error is assigned.

<p>Petition for injunction. Before Judge Searcy. Fayette superior court. May 30, 1921.</p>

<p>Habeas corpus. Before Judge Hardeman. Candler superior court. December 11, 1920.</p>

Equitable petition. Before Judge B. C. Bell. Decatur superior court. February 11, 1921. This was an equitable petition filed by John Washington against David Johnson individually, and I. A. Allen as administrator of the estate of J. W. Napier.

Petition for injunction. Before Judge Meldrim. Chatham superior court. February 14, 1921. C. Wilkins, Annie C. Warren, Victor G. Schreck, J. C. Slater, and Kate G. Simkins filed their petition for injunction against the Mayor and Aldermen of the City of Savannah, and made this case: The plaintiffs are owners of lots which front on West Broad street between Indian street and 31st street in the City of Savannah. Said street is now paved between the curbing with vitrified brick.

Equitable petition. Before Judge Gower. Ben Hill superior court. February 1, 1921. The South Georgia Building- and Investment Company sued out a distress warrant against J. B. and Dorothy Wilcox, for the rept of the Lee-Grant hotel building. The Wilcoxes filed their affidavit denying that the rent distrained for was due, and gave bond for the eventual condemnation-money, with G. W. McLean, H. D. Yaughn, J. C. Peavy, and Will S. Haile as sureties.

<p>1. The general manager of a mercantile and farming corporation is without authority, by virtue of his office alone, to employ counsel to represent employees thereof who are charged with larceny of property alleged to be that of third persons, but claimed by such corporation as its own, in the absence of express authority from the corporation, or ratification by the corporation of his act in so employing counsel, or by a previous course of dealing known to the corporation, from which such authority might be inferred; and this is true although prior to the indictments against these employees a third person who claimed one of the hogs alleged to be stolen had prosecuted a possessory warrant for the same against the corporation, and although the property alleged to be stolen by the employees was claimed by the corporation and found upon its premises where the employees were working.</p> <p>2. Where an attorney at law is employed by a corporation as its general counsel for one year, the position having no fixed salary attached, but the attorney is to be paid a separate fee for every specific legal service rendered the corporation, and there is no agreement between the attorney and the corporation as to any retaining fee, such attorney is not entitled, as a matter of right, at the end of his year’s employment, to a retaining fee in addition to the fees paid him for specific services rendered his client during the period of his employment.</p>

<p>Question certified by Court of Appeals (Case No. 11409).</p>

<p>Land registration. Before Judge Thomas. Echols superior court. September 18, 1920.</p>

<p>Equitable petition. Before Judge Gower. Wilcox superior court. February 3, 1921.</p>

<p>Equitable petition. Before Judge Malcolm D. Jones. Bibb superior court. February 9, 1921.</p>

Petition for mandamus. Before Judge Wright. Floyd superior court. March 5, 1921. W. E. Bowers was employed by the board of commissioners of roads and revenues of Floyd County as county demonstration agent of said county for the year 1921, at the salary of $150 per month. As such agent he rendered the services required for the months of January and February, 1921.

<p>Equitable petition. Before Judge Graham. Wheeler superior court. April 4, 1921.</p>

<p>1. Under the evidence submitted on the issues made by the pleadings in the case, the jury were authorized to find that one of the defendants, who is one of the plaintiffs in error, was not a mere accommodation party to the promissory note sued on in this case, but that on the contrary he received value for his indorsement of the paper.</p> <p>2. One portion of the charge to the jury is excepted to on the ground that it is not authorized by the evidence. In view of the evidence contained in the record the exception is not well taken.</p> <p>3. Several grounds of the motion for new trial complain that the verdict was contrary to the charge. This, as has been frequently ruled, amounts to the contention that the verdict was contrary to law, and requires no other examination or consideration than that given to the general ground contained in the motion, that the verdict is contrary to law.</p> <p>4. The other grounds of the motion for a new trial, complaining that the verdict is contrary to certain parts of the evidence, or that a contrary verdict was demanded by portions of the evidence specifically pointed out, are necessarily included in the general ground that the verdict was contrary to evidence and without evidence to support it; and as to that ground the court is of the opinion that the evidence, though conflicting, supports the verdict.</p>

<p>Question certified by Court of Appeals (Case No. 11838).</p>

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

<p>Equitable petition. Before Judge Hammond. Bichmond superior court. May 9, 1921,</p>

<p>Question certified by Court of Appeals (Case No. 12398).</p>

<p>Ejectment. Before Judge Park. Baldwin superior court. February 19, 1921.</p> <p>This was an action of ejectment in the fictitious form, commeneed on December 20, 1913. The demise was laid in the name of Joe Brown as administrator of Katherine Brown. The suit was brought to recover “ that tract of land situate and lying in the city of Milledgeville, Baldwin county, Georgia, known in the plan of the city as part of lot No. 3, Sq. No. 24, bounded on the east by lands of Bell Brown; north by Washington St.; south by lands formerly owned by Hamp Brown estate; west by Elbert St.” The defendant filed his plea of not guilty, and set up title by prescription by possession for twenty years, and by possession for seven years under color of title. The defendant amended his answer by setting up valuable improvements made upon the premises, under a bona fide claim of title, of the value of $1024.53, and prayed that the value of such improvements be adjudged a lien upon the land if the plaintiff should recover.</p> <p>Both parties claimed under W. G. Lanterman. On March 28, 1871, Lanterman conveyed to Hamilton Brown certain lands, including the premises in dispute. On January 7, 1878, W. G. Lanterman conveyed by deed to Samuel' Walker lands embracing the premises in dispute, which was duly recorded; and attached to said deed was the following instrument:</p> <p>“ Georgia, Baldwin County. I, Hamilton Brown, Senior, certify that the following described city lots in Milledgeville and the Island hereinafter described are not included in my homestead, and I lay no claim thereto, as I was due the purchase-money to W. G. Lanterman for said city lots, and the mortgage given by me to said Lanterman on the Island was dated prior to the homestead act of 1868. Said property known and described as follows: ‘ The north half of lot number three (3) in square 24, and the south half of lot No. three (3) in square twenty-four (24), and the south half of lot No. four (4) in square twenty-four (24), and the whole of lot No. one (1) in square twenty-four (24), containing one acre, and the three half lots containing half acre each, together with all the appurtenances thereto appertaining. Also the John Haas & Dan’l Caraker Island, lying in the Oconee Eiver, near Milledgeville, Ga., in said county, containing seven acres, more or less,' one half undivided interest thereof for and during the natural life of Lizzie Willis, the other undivided half interest in fee simple.’</p> <p>“In witness whereof, I have hereto set my hand and affixed my seal this Jany. 7, 1878. Hamilton Brown (L. S.)</p> <p>“Attest: B. B. Adams, W. W. Williamson.”</p> <p>The plaintiff claimed by mesne conveyances from Samuel Walker into Katherine Brown. He introduced his letters of administration on Katherine Brown’s estate, granted by the court of ordinary of Baldwin county, on November 18, 1913.</p> <p>Hamilton Brown and his family lived on these premises for many years prior to his death in February, 1902. His wife, Katherine Brown, died in possession of these premises, some seven months after the death of her husband. The plaintiff did not introduce any order of the court of ordinary authorizing him to sell this land, and he did not show that it was necessary for him to recover the same for the payment of debts or for distribution among the heirs of Katherine Brown. Hamilton Brown died testate, and his will, dated June 7, 1901, was probated and admitted to record on February 5, 1902. The eighth item of his will was as follows:</p> <p>“ I give and bequeath to my son, Frank, the house and lot on which I now reside, after the death of his mother, everything to remain on said premises just as it now is, so long as his mother shall live, also all of the parcel of land outside of that belonging to Joseph, with all the improvements thereon, in same block as that of my residence lot, also the vacant quarter of an acre lot fronting the Covey lot, and adjoining lot given to 'William.” This item devised the property in dispute.</p> <p>Frank Brown was named as executor of this will, and letters testamentary were issued to him on February 5, 1902. On November 17, 1909, Frank F. Brown conveyed to C. T. Caraker the premises in dispute. Caraker-took immediate possession of the premises in dispute, under his deed from Frank Brown, and has had continuous and uninterrupted possession thereof since his purchase. Sometimes the house on these premises would be vacant, due to the fact that one tenant would move out and some time would elapse before another tenant would take possession; but Caraker controlled and claimed this property, his possession being open, public, and notorious.</p> <p>Frank Brown as executor of his father’s will took possession of the premises in dispute and held the same as executor or individually, through tenants, continuously from the death of his testator down to the time he sold the same to Caraker.</p> <p>The j'ury found for the plaintiff the premises in dispute, that the rental value of the land from December 20, 1909, was $850, that the present market value of the land, exclusive of improvements, was $800, that the defendant placed these improvements thereon in good faith, and that the present market value of such improvements was $1500. Judgment was entered in favor of the plaintiff, in accordance with this verdict. The defendant moved for a new trial, on the formal grounds, and on the following additional grounds:</p> <p>(1) Because the court refused to charge the jurjr, when properly requested in writing by the defendant, “that if you believe from the evidence that Katherine Brown died owing no debts anil . . that all the legatees under the will of Hamilton Brown accepted the legacies provided therein for them, and went into possession of the various legacies therein provided without protest or objection, I charge you that the plaintiff, as administrator of the estate of Katherine Brown, would be estopped to assert that the title to the property sued for was in Katherine Brown.”</p> <p>(2) Because the court erred in refusing to charge the jury, when properly requested in writing, the following: “The defendant in this case contends that even if it is true that Katherine Brown died in possession of the property sued for, claiming it as her own in good faith, and even if it is also true that she had occupied the property openly, notoriously, uninterruptedly, continuously, and adversely under a bona fide claim of right for seven years under color of title, giving her a good prescriptive title, nevertheless the plaintiff is not entitled to recover, because, as defendant contends, after the death of Katherine Brown in possession he acquired a good prescriptive title under seven years possession under color of title. He contends that immediately after the death of Hamilton Brown, Frank Brown, executor of his . . will, . . took possession of the property in controversy as legatee under the will of Hamilton Brown, and that this possession continued unterruptedly for more than seven years thereafter, and that while in possession as such legatee . . Brown sold the property in dispute . . to Caraker, who continued in possession thereof about four years before the filing of this suit. The defendant contends that the possession of Frank Brown as legatee under the will of Hamilton Brown was open, notorious, continuous, uninterrupted, adverse and under a bona fide claim of right, and that the possession of Caraker under deed from Frank Brown was also open, notorious, continuous, uninterrupted, adverse and under a claim of right.</p> <p>“I charge you that the will of Hamilton Brown was color of title; and if you believe that Frank Brown took possession of the premises in dispute as legatee, and said possession continued uninterruptedly and adversely for the period named, and that under tlie deed from Frank Brown C. T. Caraker held possession of a similar character from that date to the date of the filing of this suit, then the defendant would have a good title by prescription, and it would be your duty to find a verdict in his favor, although you might be satisfied that Katherine Brown at the date of her death had a good title to the property.”</p> <p>(3) Because the court erred in refusing a timely written request to give in charge to the jury the following: “ If you believe from the evidence that Frank Brown as- executor of the estate of Hamilton Brown went into possession of the property in controversy in 1902, immediately after the death of Hamilton Brown Sr., and remained in possession thereof from that date to 1909, at which date he sold the property to C. T. Caraker, and if you believe that that possession as executor was open, notorious, peaceable, continuous, uninterrupted, adverse, and under a bona fide claim of right, as executor, and if you further believe that in 1909 he sold the property to C. T. Caraker, and that C. T. Caraker remainded in possession of said property from that date to the filing of this suit, and if you further believe that the possession of Caraker was of the same character hereinbefore referred to, then I charge you that the defendant would have a good prescriptive title and it would be your duty to find a verdict in his favor, although you should believe that Katherine Brown at the time of her death had a good prescriptive title thereto.”</p> <p>(4) Because the court erred in refusing a timely written request to give in charge to the jury following: “. . I charge you that, if you believe from the evidence that the possession of Hamilton Brown and Frank Brown and C. T. Caraker was takeu together for a period of 20 years or more, and that the possession of all three of said persons named was of the character herein-before set out, then the defendant would have a good title and it would be your duty to return a verdict in his favor, notwithstanding the fact that Katherine Brown died in the physical possession of the property . . ”</p> <p>(5) Because the court erred in refusing a timely written request to give in charge to the jury the following: “. . . . I charge you that where a husband and wife occupy property jointly, the presumption of law is that the possession is that of the husband, and that the burdeh of proof is on the plaintiff in this case to show that the possession was really the [wife’s], and that she occupied the property under a bona fide claim of right in herself. . . ”</p> <p>(6) Because the court erred in charging the jury as follows: "I charge you this principle of law: It is claimed that Mr. Caraker did not buy this land until 1909. I charge you if Frank Brown went into possession of the property in dispute, not as a legatee, but as the executor, and he remained in possession of it as executor, and not as legatee, and if he sold it to Mr. Caraker' in the year 1909, in order for Mr. Caraker to have a good prescriptive title to the property he and Frank Brown under whom he claims must have been in possession of the land as the owner, as I have already explained to you, for seven years previous to December 30th, 1913; and, if Frank Brown was in possession of it from 1902 up to a short time before he sold it to Mr. Caraker as executor, and not as legatee, then the possession he held it under as executor would not be counted as part of the seven years. He would have to be in possession of it, he and Mr. Caraker, for seven .years, and 'Frank Brown’s possession would have to be as legatee, and not as executor. . . ”</p> <p>(7) Because the court erred in charging the jury as follows: “There have been certain deeds introduced in evidence; and I will call them out to the jury, that you may clearly understand them; all these deeds will be out before you, and when you go to your jury room it would be proper for the jury to take all these instructions I read to you; then it is for you to say whether or not the property in dispute is embraced in those deeds. If you .reach the conclusion the property in dispute is not embraced in the description in those deeds, under those circumstances the court charges you that the plaintiff would not be entitled to recover. But if you reach the conclusion the property in dispute is embraced in the description of those deeds that will be out before you, the court charges you the plaintiff would be entitled to recover, provided Mr. Caraker has not a prospective title to' the land as explained to you by the court. . . ” The defendant assigns this charge as error, because the property sued for is described as being bounded on the north by Washington street and on the west by Albert street, and the property embraced in said deeds does not touch either of said streets.</p> <p>(8) In this ground it is complained that the court erred in his construction of the disclaimer of Hamilton Brown, attached to the deed of Lanterman to Walker, made in 1878. The court charged the jury that if Brown signed this paper disclaiming title to the property therein described, and on the strength of that paper that property was sold by Lanterman to another, on the strength of his disclaimer, then Brown and his heirs would be bound by that paper, provided the premises in dispute are embraced in said disclaimer.</p> <p>(9) In the charge complained of in this ground the court called the attention of the jury to the muniments of title under which the plaintiff claimed title to the premises in dispute; and instructed the jury that if, after reading the descriptions, of the property embraced in those convenances, they reached the conclusion that the property sued for was the same property embraced in those instruments, they were sufficient to convey the title from Lanterman to Katherine Brown. The court then instructed the jury that when property having a descriptive name is conveyed by that name, such description will prevail over one which is intended to be a further description, and left to the .jury to determine whether the property sued for was embraced in those conveyances. The exception to this charge is that these conveyances show upon their face that the property embraced therein is different from that sued for. The further contention is that said charge is not abstractly true, but if correct is irrelevant, because the deeds referred to refer to the property as the Hanip Brown place, whereas the uncontradicted evidence shows that Hamp Brown owned the entire block, containing about four acres.</p> <p>(10) In the charge complained of in this ground the court instructed the jury that if they reached the conclusion that the property sued for is not embraced in the conveyances under which the plaintiff claims, they should find for the defendant; but if they found that the land sued for is embraced in those conveyances, then the plaintiff would be entitled to recover, if the defendant does not show a prescriptive title.</p> <p>(11) In this ground the court instructed the jury that if Frank Brown went into possession of this property in 1902 as a legatee, and not as executor, and if his possession coupled with the possession of Caraker in this case was for a period of seven years or longer, previous to the filing of this suit, Caraker would have a good prescriptive title to the property, although it may have belonged to Katherine Brown at the time of her death. The defendant says this charge is erroneous, because under the uncontradicted evidence Frank Brown went into possession of this property in the year 1902 as legatee, and not as executor.</p> <p>(12) This ground complains of the admission in evidence of a deed from W. A. Walker to Joseph E. Pottle, dated July 10, 1890, a deed from Joseph E. Pottle to W. A. Walker, dated July 17, 1890, and a deed from W. A. Walker to Katherine Brown, dated October 3, 1890. The objection to these deeds was that they described the property therein conveyed as “all that lot or parcel of land situate, lying, and being in the city of Milledgeville, said State and County, known in the plan of said city as part of lot number three (3) in square number twenty-four (24), formerly known as the Samp Brown place; bounded as follows: by Ilamp Brown and others on the north, east and west, and on the south by Sami. Walker; said lot said to contain one-half (1/2) acre, more or less;” that the descriptions in these deeds show that the property therein conveyed is different from that sued for, and that the court should have so instructed the jury.</p> <p>(13) In this ground it is complained that the court erred in admitting in evidence the disclaimer signed by Hamilton Brown Sr., made in 1878, hereinbefore fully set out.</p> <p>(14) In this ground it is complained that the court erred in .admitting in evidence, over the objection of counsel for the defendant that the same were irrelevant, “the deed from W. G. Lanterman to Jerry Cooper; deed from C. W. Ennis, sheriff, to Sami. Walker; deed from Samuel Walker to C. II. Wright & Son; deed from C. H. Wright & Son to Matthew Brown; and mortgage from Matthew Brown to W. A. Walker, with power of sale.”</p> <p>(15) In this ground the defendant complains that the court erred in admitting in evidence, over his objection “ a mortgage from Matthew Brown to W. A. Walker, containing a power of sale.” The objection to its admission was that it did not convey or create a lien on the property sued for.</p> <p>(16) Because the court erred in refusing to admit in evidence, when tendered by the defendant, “ a homestead record of Baldwin County, on page 176 thereof, showing a homestead set aside to Hamilton Brown. Said homestead application was sworn to before the ordinary, Eeby. 28th, 1874, and was approved by the ordinary of said county on Mch. 12, 1875, and the property survejred and set apart to Hamilton Brown as a homestead for the benefit of his wife and minor children, including the whole of block No. 24 in the city of Milledgeville, and said block includes the property sued for.” The defendant contends that this homestead was relevant because it showed that, during the life of Katherine Brown, Hamilton Brown claimed the property as his own, and that Katherine Brown recognized the property as that of Hamilton Brown, occupied it as beneficiary under the homestead, and that she made no claim or title to any part thereof.</p> <p>The court overruled the defendant’s motion for new trial; and this is the error complained of.</p>

<p>Complaint for land. Before Judge Malcolm D. Jones. Bibb superior court. February 15, 1921.</p>

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

<p>Divorce. Before Judge Hammond. Richmond superior court. April 27, 1921.</p>

Petition for injunction. Before Judge Hammond. Burke superior court. April 22, 1921. Williams filed his petition to enjoin the enforcement of an ordinance of the City of Waynesboro, which imposed an occupation tax of $300 on dealers in ice and an additional tax of $100 for each wagon used in its delivery, on the ground that it was unreasonable and oppressive. This ordinance was passed on April 4z, 1921. Prior to that time the occupation tax on ice dealers was $25.

Petition for injunction. Before Judge Hodges. Wilkes superior court. May 21, 1921. The Washington Exchange Bank and some 33 citizens and taxpayers of Wilkes County filed their equitable petition against the tax-collector, the sheriff, and the tax-receiver of the county, seeking to enjoin the defendants from enforcing certain tax fi. fas.

<p>1. Cruel treatment within the meaning of the Civil Code, § 2946, relating to discretionary grounds for divorce is the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies the apprehension of danger to life, limb, or health. And in charging upon this subject the court should not omit reference to the element of wilfulness in the offense against the complaining party, nor fail to instruct the jury that it must be such as reasonably justifies the apprehension of the injuries referred to.</p> <p>2. A charge, though erroneous, if favorable to the complaining party, is not cause for the grant of a new trial.</p> <p>3. The. charge of the court, stating to the jury that there was a great deal of feeling on the part of the parties in this case, was in violation of the inhibition contained in section 4863 of the Civil Code,</p> <p>■ relating to the expression of opinion by the judge on the facts of a case.</p> <p>4. An exception to the ruling of the court in refusing to permit the defendant in the court below to testify as to the conduct of the other party, which does not indicate, except by a reference to the pleadings and other parts of the record, what would have been his testimony, is not sufficient to raise a question for decision here.</p> <p>5. The ground containing an assignment of error upon the refusal of written requests to charge is incomplete, and fails to show what requests were submitted to the court.</p>

Complaint. Before Judge Hutcheson. Bockdale superior court. October 4, 1920. The Citizens Bank of Moultrie brought suit against the Coiinty of Bockdale, to recover the sum of $5000.

<p>Equitable petition. Before Judge Meldxim. Chatham superior court. November 30, 1920.</p>

Certiorari; from Court of Appeals. 26 Ga. App. 212. At the time of his death A. N. Hartley held a certificate in hid name for five shares of stock in the Farmers State Bank of Bartow, Ga., of the par value of a hundred dollars a share, for which he had paid 60 per cent, of such value, the certificate reciting, “ 60 % paid in and assessable.” Upon the application of his widow a year’s support from his estate was set aside to her and their three minor children.

Certiorari; from Court of Appeals. 26 Oa. App. 234. Held: or any of the said stock of said company which may hereafter be bought or acquired by any or either of the said several parties hereto, shall at all corporate meetings of said corporatioo be voted as a unit, and to that end the said owners of the several shares of stock herein mentioned do by these presents hereby constitute and…

<p>Alimony, etc. Before Judge George L. Bell. Fulton superior court. November 5, 1920.</p>

<p>Equitable petition. Before Judge Hardeman. Emanuel superior-court. January 20, 1921.</p>

<p>Petition for injunction, etc. Before Judge Irwin. Douglas superior court. January 14, 1921.</p>

<p>1. The evidence offered by the defendants to support their application to set aside the judgment rendered in a case in default, and to open the default, did not sufficiently show that the failure of the defendants to file their defense or to move to open the default before judgment was excusable in law; and the court erred in setting aside the judgment and opening the default.</p> <p>2. The uneontroverted allegations in the petition required the judgment and decree in favor of the plaintiff; and the fact that no evidence was offered did not authorize the granting of a new trial, there being no ■ verdict and judgment for the damages claimed in the petition, which might have required proof by competent evidence before the plaintiff would have been entitled to a verdict therefor.</p>

<p>Under the pleadings and the evidence in the case, .the court did not err in refusing, an interlocutory injunction.</p>

Ejectment. Before Judge R. C. Bell. Decatur superior court. February 7, 1921. Hollis Ryals brought a common-law action of .ejectment against Peter Wilson, to recover a fifty-acre tract in the northwest corner of lot of land No. 218 in the 16th district of Decatur County. To this action the defendant filed a plea of not guilty. The case proceeded to trial, and after the introduction of evidence by the plaintiff the court granted an order declaring a nonsuit.

<p>Certiorari. Before Judge Kent. Laurens superior court. February 22, 1921.</p>

Mandamus. Before Judge Wright. Floyd superior court. March 24, 1921.

<p>1. Where an election is held by a county to determine whether or not.a debt for a given amount and purpose shall be created by the issuance of bonds for that amount, and the result of the election is in favor of the issuance of the bonds, and the bonds are validated in the manner prescribed by law, the fact that the county commissioners fail, during the first and second years after the authority is given to issue the bonds, to exercise it, does not have the effect of abrogating the authority to make the issue; and it is their duty to make provision for the payment of interest and principal, and, for the purpose of paying the latter, to create a sinking-fund by the assessment of a tax, which should be collected even during the years before the bonds are sold, in case of a delay in selling the bonds. But where such a delay is for a period of one, two, or more years, inasmuch as interest will not be paid during the years elapsing before the bonds are sold, no tax should be assessed and levied for such period of time.</p> <p>2. Under the agreed statement of facts, the court did not err in refusing to enjoin the assessment of the tax upon the cotton which the plaintiffs in error contended was not theirs at the date upon which the liability for tax became fixed. Civil Code, § 4126; Flannery v. Harley, 117 Ga. 483 (48 S. E. 765).</p> <p>3. It is the duty of the board of county tax assessors “ to examine all the returns of both real and personal property of each taxpayer; and if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the said board shall correct such returns, and shall assess and fix the just and fair valuation to be placed on said property, and shall make a note thereof and attach the same to such returns.” 'Park’s Ann. Code, § 1116 (k). This provision of our statute relating to the duties of the board is not repealed by the act approved July 31, 1918 (Acts 1918, p. 232), relating to tax collections from delinquents.</p> <p>4. The tax paid by the plaintiffs under the assessment and levy for the year 1919 for the purpose of paying interest on the bonds was not recoverable in this action, the same having been paid voluntarily and without protest, so far as the petition shows. First National Bank of Americus v. Mayor etc. of Americus, 68 Ga. 119 (45 Am. R. 476); Hoke v. City of Atlanta, 107 Ga. 416 (33 S. E. 412).</p> <p>5. The question as to the legality of the increased assessment for the purpose of taxation of the property of the plaintiffs by the board of county tax assessors was decided adversely to the contention of the plaintiffs (who are plaintiffs in error in the cross-bill of exceptions) in the case of Ogletree v. Woodward, 150 Ga. 691 (105 S. E. 243); which this court declines to reverse upon a review made in accordance with a request of counsel for the plaintiffs. See also the case of Washington</p> <p>Exchange Bank v. Barnett, ante, 704 (111 S. E. 46).</p>

Partition. Before Judge Sheppard. Tattnall superior court. April 16, 1921. W. Ii.

<p>Libel for divorce. Before Judge Munro. Muscogee superior court. April 30, 1921.</p>

<p>Petition for injunction. Before Judge Hardeman. Candler superior court. May 26, 1921.</p> <p>W. M. Jones et al. filed a petition against the trustees of RoseMary School District, the superintendent of public schools, the board of education, the tax-collector and the sheriff, all of Candler County, alleging, in substance, that an election was duly called and held in said school district on January 13, 1920, for the purpose of determining whether said school district should issue bonds in the sum of $6500, to build and equip a schoolhouse in said district; that said election resulted in favor of bonds; that on March 12, 1920, the bonds were confirmed and validated by the superior court; that the bonds had never been issued or sold; that the schoolhouse had not been erected and equipped, nor any indebtedness created by reason of the same; that the trustees of said school district, the county school superintendent, and the board of education recommended to the board of roads and revenues that the sum of five mills be levied on the taxable property of the district for the year 1920, to provide a fund with which to pay the annual interest on the bonds for the j^ear 1920, and to provide a sinking-fund to retire said bonds at maturity; 'that said tax was so levied and placed in the hands of the tax collector, who issued executions against the property'of petitioners; that said executions- are in the hands of the sheriff of the county who will seize some of their property in satisfaction of the same, unless the court grants affirmative relief immediately; that petitioners have no adequate remedy at law; that petitioners have tendered to the sheriff the amounts of taxes legally due by them, to wit, all State and county taxes, except the five mills levied as aforesaid, and have demanded their tax receipts of said officer, who has failed and refused to surrender them unless the said five mills are. also paid; that the levy of five mills on the taxable property of the district will not yield an amount sufficient to pay the annual interest and retire said bonds at their maturity; that at the time the election was held and the bonds voted upon, and at the time of the validation of said bonds and at the time uf the levy of the tax, the school district was not legally constituted, because it had not been properly laid out and surveyed and a map of the same had not been filed in the office of the ordinary of the county as required by law; and that the tax is illegal and void. The prayers of the petition are: (1) That the tax-collector and sheriff be temporarily and' permanently enjoined from collecting said school-bond tax; that they be required to surrender to the petitioners their tax receipts upon the payment of all their legal taxes; (2) that the trustees of the school district and their successors in office, the board of education and their successors in office, and the county school superintendent be temporarily and permanently enjoined from issuing said bonds, for the reason that they might fall into the hands of innocent purchasers who might suffer thereby; (3) for general relief; and (4) for process. -The petition was subsequently amended by alleging in substance, that, at the same time and in the election submitting to the voters the question of the issuance of bonds, there was also submitted the question of locating a site for the schoolhouse in said district; that the result of the election on this question showed that the voters overwhelmingly favored a designated site; that the voters were induced to vote for the bonds by reason of being allowed to select a site for the school building; and that petitioners are informed and believe that the school authorities have determined to change the location of the schoolhouse, and to build on a different site from that decided upon in the election. Petitioners pray that the trustees be enjoined from issuing or selling said bonds, and from collecting the said taxes, and from levying or collecting taxes in the future to pay said interest and to provide a sinking-fund to retire said bonds, for the reason that petitioners were deceived bj’ the trustees and induced to vote for the same.</p> <p>The defendants, by way of plea and answer, show that the bonds have previously been, by order of the court, validated and confirmed; that said judgment of validation adjudicates all of the issues now made or attempted to be made by petitioners, and petitioners could have made themselves parties to that proceeding at the time of the judgment, or by exception thereto, as is required by law. The court refused to grant an injunction, and the petitioners excepted.</p>

<p>Complaint for land. Before Judge Littlejohn. Webster superior court. June 7, 1921.</p>

<p>Two persons entered into a written contract whereby one, the owner of realty, rentbd the same to the other party at a stipulated amount to be paid monthly, and also agreed to sell the property to the other for a stated sum; and further agreed to release the tenant from the obligation to purchase, if the latter should find himself unable to do so. No time limit to the rental feature of the contract was fixed, nor was any - time limit fixed for the exercise of the purchase feature of the contract, other than that the entire purchase-price might be paid “ at any time.” Under the pleadings and the undisputed evidence, the contract as to the payment of monthly rent was fully performed by the tenant until a tender of the purchase-price to the owner was duly made and a demand for conveyance of the property under the terms of the contract. Upon the refusal of the owner to complete the sale the tenant filed an action for specific performance of the .contract, alleging the above-stated facts, and a continuing tender of the purchase-price. The defendant admitted in his answer all of the facts as alleged in the petition, and in addition pleaded the bar of the statute of limitations. Held:</p> <p>1. The purchase feature of the contract constituted an option, the con- . sideration of which was the payment of the rent stipulated in the contract.</p> <p>2. The action was not barred by the statute of limitations, because in such a contract the right of the optionee, under the contract, did not expire so long as he continued to pay the stipulated rental and the same was accepted by the optionor. Each payment and the acceptance thereof' constituted a renewal of the contract.</p>

<p>Garnishment. Before Judge Meldrim. Chatham superior court. February 9, 1921.</p>

Equitable petition. Before Judge Tarver. Bartow superior court. March 23, 1921. On the 13th day of February, 1920, Mrs. • Louis M. Peeples filed her equitable petition against R. S. Munford; and this petition and the demurrers and answers thereto' raised issues involving the ownership and control of, and the right to vote certain shares of stock in the Etowah Development Company in the meetings of the directors of that corporation.

<p>1. There was sufficient evidence to authorize the jury to find that the will to the probate of which a caveat was filed was duly executed, and that the witnesses signed the same in the presence of the testator, and that he signed in their presence.</p> <p>2. The charge ,of the court to the jury, that “ the testator need not have actually seen the witnesses sign, if in his position he might have so seen,” was not erroneous. Robinson v. King, 6 Ga. 539; Gordon v. Gilmore, 141 Ga. 347 (8), 348 (80 S. E. 1007).</p> <p>3. The will offered for probate in several items recited that the testator did “will and bequeath” certain specified property; it was signed by the testator, and following his signature was the attestation clause, “ Signed in the presence of and of each other, this the 26 day of October, 1920,” which attestation clause was followed by the signatures of four witnesses. Held, that while the attestation clause was not in the most usual form, it was sufficient; and the court did not err in stating to the jury, in the course of his instructions, that “ A document is offered which in form is legal and regular, which measures up to the requirements of the law on its face.” Deupree v. Deupree, 45 Ga. 415 (2); 40 Cyc. 1125.</p> <p>4. The court having instructed the jury that the burden was on the propounder to establish the will by a preponderance of evidence, it is not ground for the grant of a new trial that the court failed to charge the jury that the burden which the law placed upon the propounder was, in the first instance, “ to prove the factum o.f the will, that at the time of the execution of the will the testator apparently had sufficient mental capacity to make it, and in making it acted freely and voluntarily.”</p> <p>5. Where one of the issues upon a probate of a will raised by the caveat thereto is whether the testator had testamentary capacity, the court should not give to the jury instructions which contain language that would exclude from their consideration the reasonable or unreasonable disposition made in the will of the testator’s estate, in passing upon the issue as to whether the testator had testamentary capacity. But in the instant case there was no evidence from which the jury could have found that there were such inequalities in the provisions of' the will as would authorize the jury to find that the testator had made an unreasonable disposition of his estate; consequently the charge referred to could not have been hurtful.</p>

<p>Ejectment. 'Before Judge Worrill. Clay superior court. December 18, 1920.</p> <p>On Februarjr 23, 1914, Mrs. N. J. Greene conveyed to D. W. James the land in dispute, to seeure an indebtedness of $5633.51. The deed authorized the grantee to sell.the land upon default in payment of the indebtedness, and, as attorney in fact of the grantor, to execute deed to the purchaser. On March 9, 1915, pursuant to sale by the grantee under the power contained in the deed, the grantee executed and delivered to himself a deed to the premises in dispute. On- April 24, 1915, D. W. James sold the land to Thomas C. Sutlive, taking from the purchaser a deed to secure the purchase-money, which deed likewise contained a power of sale. Subsequently D. W. James was adjudged a bankrupt, and E. O. Waters was appointed trustee in bankruptcy. Under the power contained in the deed from Sutlive to James, he sold the land and executed a deed to himself as such trustee in bankruptcy. Mrs. N. J. Greene remained in possession, and ejectment was brought against her to recover the land. The principal contention of thé defendant was that the debt secured by deed from defendant to D. W. James, dated February 23, 1914, was a debt of defendant’s husband. Upon the .trial of the case the evidence for defendant tended to show that the deed was made to secure the debt of the husband in whole or in part; and that the transaction was entire and not divisible. The jury returned a verdict for defendant. Plaintiffs made a motion for new trial, in which complaint is made that the verdict is contrary to the evidence and without evidence to support it. The special grounds of the motion are based on the alleged disqualification of two of the jurors, by reason of relationship to Mrs. Greene. Upon the hearing of the motion for new trial the presiding judge certified that after the jury had been selected and before the introduction of evidence by either party, the attention of counsel for plaintiffs was called to the alleged relationship of the particular jurors to Mrs. Greene, and that counsel stated in open court that they would “waive the point.” The. counter-showing submitted by respondent on the hearing of the motion for' new trial affirmatively shows that the attention of plaintiffs’ counsel was called to the alleged disqualification of the particular jurors at the time of the trial, as certified by the trial judge. The motion for new trial was overruled, and the plaintiffs excepted.</p>

Equitable petition. Before Judge Blair. Cobb superior court. January 31, 1921. At the March term, 1918, of the superior court of Cobb county, the plaintiff in error obtained a divorce from the defendant in error.

<p>Divorce. Before Judge Eent. Laurens superior court. January 7, 1921.</p>

<p>Equitable petition. Before Judge Wright. Polk superior court. April 16, 1921.</p>

<p>An action in trover against an administrator, wherein a recovery for the hire and value of the property involved is expressly waived, and a recovery of the property itself is sought, is not covered by the Civil Code (1910), § 4015, providing that no suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of twelve months from his qualification.</p>

<p>Action for specific performance. Before Judge Mathews. Bibb</p>

<p>Questions certified by Court of Appeals (Case No. 12020).</p>

<p>Equitable petition. Before Judge Tarver. Murray superior court. April 16, 1921.</p> <p>The State Board of Medical Examiners of Georgia, composed of named members, brought complaint against Franklin C. Bentley, and made this case: The State Board of Medical Examiners was created under acts of the General Assembly of Georgia, approved August 18, 1913, and August 20, 1918. One of the duties of this board is to “protect the people from illegal and unqualified practitioners of medicine and surgery.” Bentley is engaged in the practice of medicine and surgery in Murray county, contrary to law', and without having complied with the provisions of law authorizing such practice. He has nevér been authorized to practice medicine in. said county by a diploma from an incorporated medical college, school, ox university.- He has never been licensed by any medical board to practice. He is not a graduate of any school. He has never taken three full courses of study of six months each at any of such schools of medicine. He has never stood any medical examination before any medical board of this State, nor obtained a license therefrom to practice medicine. In September, 1912, he entered the North Carolina Medical College as a freshman, and attended that college during the collegiate year. He failed to pass at the end of his freshman year, and was refused admission to the sophomore class. Plaintiffs allege on information and belief that he has never attended any other medical college for any full term of six months. In 1912, in Baltimore, Maryland, the Eclectic School of Medicine of Milton University was organized. Later it took the title of Eastern Universitj School of Medicine, and, in 1914, that of Maryland College of Eclectic Medicine and Surgery. In 1915 this corporation was dissolved. In 1917 the dean of this institution was convicted and sentenced for having sold a number of diplomas from the Maryland College of Medicine and Surgery, the Eastern University School of Medicine, the Eastern University Dental School, and the Southern College of Medicine and Surgery of Atlanta. The defendant claims to have a diploma from one of the above colleges. If he has, “ it is a fraud and a forgery.” If he has such diploma, he obtained it without having attended the college for three full terms of six months each, or for a full term of six months. If he has a diploma from any incorporated medical college, he got it without having attended the same for three full terms of six months each. He claims to have secured a license from the Board of Medical Examiners of this State, on May 3, 1913. If he has such license, “it is a fraud and a forgery.” If he has such license, he got it without having stood an examination before said board. Said license was recorded in the clerk’s office of the superior court of Catoosa count)"-, and on February 22, 1915, was recorded in the clerk’s office of the superior court of Murray county. On account of the facts hereinbefore stated, the defendant is an illegal and unqualified practitioner of medicine and surgery in Murray county of this State. The plaintiffs pray for an injunction restraining him from practicing medicine and surgery in said county; that his alleged certificate or license be.declared null and void and expunged from said records; and that any diplomas he may have be canceled.</p> <p>The defendant demurred to this complaint, on the grounds, that there was no equity therein; that the State Board of Medical Examiners of Georgia, as such, has no right to prosecute this complaint; that the complaint charges him with criminal offenses, of which a court of equity will not take cognizance, neither aiding nor restraining criminal courts in the exercise of their jurisdiction; and that complainants have an adequate and complete remedy at law. The court sustained so much of the demurrer to the complaint as prayed for injunctive relief, and overruled the same as to the remainder of the petition. The defendant assigns error on this judgment. He answered, denying the substantial allegations of the petition; and pleaded in bar his acquittal under an indictment in Murray superior court, charging him with practicing medicine and surgery without a license. The court struck this portion of the .answer; and the defendant complains of this ruling.</p>

Petition for injunction. Before Judge Kent. Johnson superior court. May 14, 1921. J. R. Rowland filed his petition against L. Davis, sheriff of Johnson county, and O. E. Morris, State cattle inspector in said count))-, to enjoin them from quarantining his cattle and having them dipped for tick eradication under the statute of this State passed for such purposes.

<p>Equitable petition. Before Judge Wright. Walker superior court. May 31, 1921.</p>

Equitable petition. Before Judge Worrill. Early superior court. March 19, 1921. Held: does not advertise the property to he sold as the property of the estate of her intestate. The yearly rental value of said place is $1500 or other large sum.

<p>The first count in the. petition set forth a cause of action, and was not subject to general demurrer; but the second count did not set forth a cause of action, and the demurrer thereto was properly sustained.</p>

Equitable petition. Before Judge Hammond. Richmond superior court. November 29, 1920. On July 28, 1919, the tax-receiver of Richmond County made assessments for taxation of certain corporate stocks and bonds belonging to the estate of J. B. White, late of Richmond County, this State, who died testate in 1917. The assessments were for the years 1911 to 1917, both inclusive.