Volume 153 — Georgia Reports

’Injunction. Before Judge Pendleton. Fulton superior court. April 28, 1921.

<p>Complaint for land. Before Judge Highsmith. Camden superior court. April 8, 1921.</p>

<p>Ejectment. Before Judge Thomas. Colquitt superior court. April 8, 1921.</p>

<p>Ejectment. Before Judge Malcolm D. Jones. Bibb superior court. March 2, 1921.</p>

<p>Equitable petition. Before Judge Ellis. Fulton superior court. April 6, 1921.</p> <p>The Economy Laundry Company, in behalf of itself and such other creditors of the American Ice Cream Manufacturing Company as might become parties plaintiff, sued the latter-named company, and certain named individuals for breach of contract by the defendant company, and for the statutory liability fixed by the Civil Code (1910), §2220, on persons who organize a company and transact business in its name before the minimum capital stock has been subscribed for. The defendant company filed a demurrer to the petition, on general and special grounds. The general demurrers were overruled, as well as most of the special demurrers. In the order of the judge dealing with the. demurrer of the defendant company it was, among other things, ruled: “ The special demurrer as to measure of damages is overruled, except that the plaintiff is required to amend within ten days, setting up the monthly difference between the agreed price and the actual [value] of said lease contract.” The, date of this judgment was December 4, 1917. On December 13 thereafter the following amendment to the petition was offered: “And now comes the plaintiff, Economy Laundry Company, and with the leave of the court first had and obtained, and within the time allowed by the order of the court in ruling on the special demurrer to paragraph ten of the petition, and in accordance with said ruling amends said paragraph of the petition as follows: The difference between the agreed price and the actual value of said lease contract at the time it was repudiated, renounced, and breached as aforesaid is the sum of one hundred and fifty ($150) dollars per month.” This amendment was allowed. After this amendment the judge on the date it was offered granted the following order: “ It appearing to the court that since the filing of the above case two of the defendants, to wit, August Denk and Geo. P. Leoles, have died, now on motion of attorneys for the plaintiff said case is dismissed as to said two defendants.” Paragraph 10 of the demurrer to the petition of the individual defendants was as follows: “ These defendants demur specially to said petition, for that it is not alleged how or in what way they organized said corporation, or how, when, or in what way they transacted business in its name, with plaintiff or others creditors of said defendant corporation.” On December 4, 1917, in the order dealing with such demurrer the following, among other things, was ruled: “ As to par. ten of the special demurrer it is ordered that the same is overruled as to the organization of the corporation, and sustained as to the transaction of business, with ten days leave to amend.”</p> <p>On a review of the case by this court (American Ice Cream Mfg. Co. v. Economy-Laundry Co., 148 Ga. 624, 97 S. E. 678), it was, among other things, held: “ The petition was not subject to general demurrer, nor to special demurrer on the ground of misjoinder of parties defendant, or of causes of action, nor to any of the other grounds of special demurrer which were overruled. John V. Farwell Co. v. Jackson Stores, 137 Ga. 174 (73 S. E. 13).” Subsequently two of the individual defendants died pending the action, and on motion of the plaintiff an order was granted striking their names from the case. The case came on for trial on April 6, 1921, and the individual defendants made a written motion to dismiss the case, one of the grounds of the motion being that the court, on December 4,1917, had sustained the demurrer of such defendants to the petition, on the ground that the petition did not allege “ how, when, or in what way, they [defendants] transacted business in its [corporation’s] name, with plaintiff or other creditors of said corporation,” the order allowing the plaintiff ten days in which'to amend. The motion alleged that plaintiff did not amend to meet such judgment within the ten days or at any time since, nor did the plaintiff except in any way to such judgment. This motion was overruled; and the case proceeded to trial on its merits, and a verdict and judgment were rendered for the plaintiff. The defendants excepted to this ruling, by a direct bill of exceptions in which the only error assigned was on the judgment overruling the motion.</p>

<p>1. The petition of the plaintiff, alleging title to a given tract of land in herself, unlawful cutting of trees thereon, and her unlawful ouster therefrom, set up a cause of action in trespass; and she could recover in trespass for such damages sustained by her in consequence thereof, the same being to the freehold, although she had rented the land to a tenant for the year in which the trespass was committed.</p> <p>2. The special demurrer to the petition, on the ground that it did not set out the deed under which the plaintiff' claims title, or make profert thereof to the court, is a speaking demurrer and was properly overruled, the plaintiff claiming in her petition title by prescription.</p> <p>3. The special demurrer to the petition, on the ground that it seeks to enjoin a trespass upon the land in the possession of the tenant, and in one paragraph thereof complains of an injury to the tenant and not to the plaintiff, was properly overruled, these facts showing no reason why the petition as a whole should be dismissed, and the special demurrer not being directed alone to that portion of the petition alleging injury to the tenant.</p> <p>4. The special ground of demurrer that the petition shows that the injury alleged to have been done was done to the tenant and not to the plaintiff is not well taken, injury to the freehold being alleged in the petition.</p> <p>5. The amendments allowed to the plaintiff’s petition were germane to the relief sought in the original petition, and did not set up a new cause of action.</p> <p>6. The verdict is supported by the evidence.</p>

<p>Equitable petition. Before Judge Terrell. Troup superior court. December 31, 1920.</p> <p>W. A. Ward filed his petition against Smith, sheriff of Troup county, Eady-Baker Grocery Company, the Troup Company, George A. Speer, J. G. Óglesby Jr., and W. E. ITogg, and made the following case: On January 4, 1915, W. E. Hogg was indebted to the plaintiff in the sum of $10,369.82, and to secure the payment of this sum he executed and delivered to Ward his deed conveying certain lands, subject to a prior mortgage deed to the Penn Mutual Life Insurance Company for $14,300, and to a mortgage deed in favor of Eady-Baker Grocery Company on which there was due approximately $15,000, and one to the Troup Company, on which was due about $8,000. On May 30, 1914, said Hogg, for the purpose of securing an indebtedness to George K. Johnson and J. W. Hamer as trustees, executed and delivered to them deeds of conveyances to the same tracts of land embraced in said deed to Ward. These trustees obtained judgment on said indebtedness against Hogg, and sold all the lands embraced in their deeds, except the home place of Hogg containing 240 acres. From the proceeds of this sale the judgment of said trustees was paid in full, and a balance was left in the hands of the sheriff. On June 15, 1914, Hogg executed and delivered to Eady-Baker Grocery Company his deed to the lands so conveyed to said trustees. This deed is alleged to have been given to secure the sum of $6,130.88. The latter company obtained’ a judgment against Hogg on said indebtedness. The doebt or demand of the said Eady-Baker Grocery Company against Hogg is and was infected with usury, and the deed to secure its payment is therefore void. Eady-Baker Grocery Company is claiming under its deed the remainder of the proceeds arising from the sale of Hogg’s lands embraced in the above deeds under the judgment of said trustees. On November 13, 1914, Hogg executed and delivered to the Troup Company his deed conveying to the said company, to secure $8,000, certain real estate therein described, embracing some of the tracts of land conveyed as above to the plaintiff. The Troup Company has reduced its claim to judgment, and claims a lien superior to that of plaintiff upon the lands embraced in his security deed. The debt due by Hogg to the Troup Company is tainted and affected with usury, and by reason thereof the deed from him to this company is void.</p> <p>The fi. fa. issued upon the judgment in favor of the Eady-Baker Grocery Company against Hogg has been assigned and transferred to George A. Speer, who bought the same after maturity and is chargeable with all the equities to which his assignor was subject. The plaintiff is entitled to the fund remaining in the hands of the sheriff after the satisfaction of the fi. fa. in favor of Johnson and Hamer, trustees. Speer, transferee of the Troup Company, is threatening to levy upon said home place of Hogg. Plaintiff prays that the sheriff be restrained from paying out any of the proceeds of the sales of the lands of Hogg; that the Eady-Baker Grocery Company, Speer, and the Troup Company be enjoined from interfering with the present status, and from proceeding to transfer or levy or enforce any of their said claims against Hogg; and that the deed from Hogg to Eady-Baker Grocery Company and from Hogg to the Troup Company be decreed to be null and void.</p> <p>By amendments the plaintiff set up the various items of usury embraced in the indebtedness of Hogg to Eady-Baker- Grocery Company; that on March 4, 1919, he obtained judgment- on his indebtedness against Hogg for $14,001.93; that the note of Hogg to Eady-Baker Grocery Company for $6,100.30 is void by reason of the fact that the sum of $900.35 was paid on said note at the time of its execution, as a scheme and device by which a greater sum might be collected than allowed by law; that various payments were made on said note, aggregating $1,145.84, which by error were included in the judgment on said note; that Hogg is insolvent; that there is embraced in said note $3,003 of usury; and the plaintiff prayed that said company and Speer be compelled to receive only the principal and legal interest due upon the fi. fa. issued upon the judgment obtained upon said notes. By another amendment he alleged that at the time Hogg executed said note to Eady-Baker Grocery Company he was indebted to said company in the sum of only $4,048.81, and that the balance of said note was without consideration.</p> <p>Speer answered, denying usury in Hogg’s note and security deed to Eady-Baker Grocery Company, and denying all payments on said note alleged by plaintiff. He denied that the plaintiff was entitled to the proceeds from the sales of Hogg’s lands in the hands of the sheriff. He further set up that Ward received his deed from Hogg subject to the indebtedness of Hogg to Eady-Baker Grocery Company.</p> <p>On the trial the issues involved were submitted to the jury upon questions. They found that the deed from TIogg to EadyBaker Grocery Company was not infected with usury; that there was no overcharge or error in the amount claimed on the fi. fa. in favor of Eady-Baker Grocery Company against Hogg; and that the items of ten per cent., which were added to the account of Hogg, were not interest, but made to cover the credit price of goods sold. The plaintiff filed his motion for a new trial, on the general grounds. By amendment he added five grounds numbered 4, 5, 6, 7, and 8. In the fourth ground he complained that the court forced him to trial before all of the books and other documentary evidence mentioned in his notice to produce had been produced (the notice to produce called for all books of EadyBaker Grocery Company from 1902 to 1914, inclusive), and that the court erred in requiring plaintiff’s counsel to proceed to trial without an opportunity to examine said books. An order had been granted by'the court allowing the plaintiff to examine these books, which had been previously done by an auditor acting for the plaintiff.</p> <p>The fifth, sixth, and eighth grounds of the amended motion are expressly abandoned by the plaintiff’s counsel in his brief. In the seventh ground the plaintiff complained that the court erred in permitting S. M. Fuller to testify as to the purpose and meaning of an entry of $4,084.81 upon the ledger of the Eady-Baker Grocery Company on August 29, 1917; and to testify in answer to a question if this entry referred to the amount he got on the fi. fa. Counsel for plaintiff objected to this testimony, on the ground that the Avriting was the highest and best evidence.</p>

Habeas corpus. Before Judge Nunnally. City court of Floyd ' county. May 24, 1921. On February 7, 1921, A. B. Wright filed his petition for habeas corpus against Mrs. Nettie J. Martin (his former wife who had been divorced), seeking to recover the custody of their minor child, Elizabeth Wright. On February 19, 1921, the defendant filed her answer to the petition for habeas corpus, claiming the legal right to retain the custody of'the child.

Equitable petition. Before Judge Eve. Irwin superior court. December 28, 1920. Chatham Bank and Trust Company, as trustee, brought its equitable petition in Irwin superior court, to foreclose two mortgages of the Ocilla Southern Railroad Company, one being a first mortgage made to this trustee to secure an issue of first mortgage bonds, and the second being a mortgage to this trustee to secure certain short-term notes.

<p>Injunction and receivership. Before Judge Tarver. Whitfield superior court. February 28, 1921.</p>

<p>Equitable petition. Before Judge Wright. ' Chattooga superior court. December 20, 1920.</p>

Equitable petition. Before Judge Thomas. Colquitt superior court. January 21, 1921.

<p>Equitable petition. Before Judge- Gower. Ben Hill superior court. March 8, 1921.</p> <p>Mrs. Foss filed a petition against Mumford, alleging: that oh September 3, 1908, B. C. Mosher executed to petitioner a mortgage deed duly recorded on September 5, 1908, containing a power of sale, covering described realty as security for a loan of $1500; that at the time of the execution of the mortgage said property was free from liens, and the title thereto was in B. C. Mosher [the maker of the mortgage]; that upon the failure of Mosher to make payment of the debt she did, after compliance with the terms of the mortgage as to advertisement, etc., make sale of the property pursuant to the power of sale, and, being the highest bidder, she became, on October 16, 1909, the purchaser of the property for the consideration of $1000; that on November- 28, 1908, Mosher executed to Mumford,'the defendant, a mortgage containing a power of sale, covering the same property, to secure a loan of $800, the mortgage reciting that the debt'would become due and payable on November 28, 1909-; that after a purported advertisement of the property Mumford did, on the first Tuesday in March, 1910, in disregard of petitioner’s rights and-the fact that the-property had already been sold under the poVer contained in the mortgage to her, sell the property 'and attempt to convey the property to himself for a consideration of $100; that notwithstanding petitioner had, since the purchase by her at the sale under the mortgage to herself, been in possession by her tenants, who had recognized her as landlord and paid the rent on the premises to her, Mumford is continually harrassing and annoying her tenants, representing to them that he is the owner, of the property, and endeavoring to induce them to attorn to him for the rent; that the deed purporting to convey the title to the property to Mumford in fact conve3red nothing, because the title had previously vested in petitioner; that this pretended title outstanding (the deed appearing upon the records of Ben Hill County) constitutes a cloud upon petitioner’s title and makes it impossible for her to sell the property at anything like its fair market value; that whatever lien the defendant had on said property was divested when the same was sold under petitioner’s mortgage, and attached to the proceeds of the sale under her mortgage; that at the time defendant attempted to sell the property under his mortgage, the property was entirely free from any and all liens against Mosher; and that petitioner is without an adequate remedy at law, and is suffering injury and damage because of the cloud upon her title to said property. The prayers are, for process; for decree declaring null and void the deed conveying the property to the defendant; and for general relief.</p> <p>The defendant’s answer denied all the material averments of the petition, and asserted that the sale of the property under the mortgage to himself was regular in all respects and did in fact convey to him the title to the property. Two amendments to the answer were offered. The petitioner orally moved to strike these amendments, because the facts alleged showed no right of subrogation on the part of the defendant. The motion was sustained; the defendant excepted pendente lite, and assigned error thereon. The stricken amendments set up substantially that on November 26, 1907, Mosher sold the property under bond for title to one Lester, who paid $500 in cash and gave his note due in one year for-$800; that from that time until November 26, 1908, Mosher was in possession of the property as owner; that in Februa^, 1908, Mosher sold the note of Lester to defendant, for $800; that defendant was indiiced to purchase the note by reason of the -fact that ho knew it had been made to cover a part of the purchase-price of the property, that Lester had paid the balance and held bond for title, and that the property was worth more than the amount of the note; that about the time the note became due, defendant was informed that it had been agreed that Lester would sell the property back to Mosher upon the return of Lester’s note which defendant held, and that as a part of the same transaction Mosher would execute to defendant his note for the same amount and secure the same-by a first mortgage lien on the property; that upon the carrying out of this arrangement Lester became the tenant of Mosher, and remained in possession of the property as such until after the alleged sale of the property under the mortgage claimed to have been held by petitioner; that defendant had no knowledge and no actual notice whatever of the existence of any mortgage on said property in favor of plaintiff, until many months after he had received from Mosher the note and mortgage aforesaid; that at the time of said transaction Mosher represented to defendant that upon procuring from Lester the possession of the property and surrender.of the bond for title he would be in position to give defendant a first lien on the property; that on the occasion of the alleged sale of the property by petitioner under the mortgage to her, defendant was present and gave notice that he held his mortgage, and that the purchaser would take the property subject to the lien of his mortgage; that the lien held by him upon said property was superior to any held by petitioner; that he acquired a valid title to the property; and that ohe title asserted by petitioner is null and void. He prayed that the title- asserted by plaintiff be canceled, and that the legal title be decreed to be in defendant; that he recover possession of the property, together with a judgment against the petitioner for the rental value of the property during the time she had had possession; that, if the lien asserted by petitioner should be held superior to the mortgage held by defendant, he be subrogated to the rights of Lester prior and up to the time of the transaction by which Lester resold the property to and became the tenant of Mosher; and that the title to the property be decreed to be in defendant free from any and all rights of the plaintiff under or by virtue of her alleged mortgage.</p> <p>The trial resulted in a decree that the deed held by Mumford constituted, a cloud upon petitioner’s title, that the same be canceled, and that the defendant be perpetually enjoined from interfering with petitioner’s possession. Error is also assigned upon the overruling of the defendant’s motion for a new trial.</p>

<p>1. The charge of the court complained of virtually assumed as true a contention of the plaintiff as to which there was an issue of fact made by the defendant’s contention respecting the same question. The issue made by these conflicting contentions, being one of fact, should have been submitted to the jury, and the court erred in assuming one to be true rather than the other.</p> <p>2. One in possession of land under a bond for title, or under a verbal agreement with the owner by the terms of which the latter is to convey to him the land upon the payment of the purchase-price, is not such a bona fide holder of the land under adverse claim of title as to avail himself of the beneficial provisions of section 5587 of the Civil Code, declaring when one may set off the value of permanent improvements.</p> <p>3. The jury found against the contentions of the defendant that he had paid the purchase-price of the land and was entitled to a conveyance; and it necessarily follows that he was not a bona fide holder of the land under an adverse claim of right. Consequently, even if the court erred in instructing the jury that in estimating the value of the improvements placed trpon the land they should take into consideration the value of the improvements at the time they were made, and not at the time of the trial, this charge would not entitle the defendant in this case to a new trial, as the jury actually allowed the defendant to 'recover a certain sum as the excess of the value of the improvements over the mesne profits. For a similar reason the rejection of evidence which tended to show the value of the improvements at the time of the trial was not such error as entitles the defendant to a new trial.</p> <p>4. The relevancy of certain notes to the issue made by the contentions of the parties, which were rejected when offered in evidence by the defendant, is not made to appear in the ground of the motion for new trial complaining of the rejection of this evidence; and consequently ‘ this court will not attempt to determine the admissibility of such evidence, as it would be necessary to examine other parts of the record to ascertain this, and such an examination will not be undertaken by the court to aid an incomplete ground of a motion for new trial.</p>

<p>Equitable petition. Before Judge Wright. Chattooga superior court. March 14, 1921.</p>

<p>Intervention. Before Judge Mathews. Bibb superior court. February 21, 1921.</p> <p>W. G-. Solomon, executor, filed a petition seeking to intervene in the case of Schofield et al. v. Exchange Bank of Macon, pending in Bibb superior court, alleging that on Novémber 13, 1894, C. II. Solomon executed to D. M. Nelligan, as assignee, a deed of assignment which was duly recorded, and which conveyed his entire stock of merchandise, notes, accounts, dioses in action, etc., for the benefit of creditors; that the assignor died on August 30, 1895; that petitioner believes the debts due to preferred creditors were paid in full, and that those owing to unpreferred creditors, all of whom were firms or corporations non-resident of Georgia, were settled or satisfied by the assignee; that the assignee removed from Georgia about the year 1898, and, as petitioner is informed and believes, subsequently died, without leaving any record of his administration of the property and funds covered by said assignment; that after the appointment of receivers for the bank in 1907, petitioner learned that the bank held on deposit to the credit of Nelligan, as assignee of C. II. Solomon, $974.42; that dividends aggregating 90 per cent, of their balances have been paid to depositors, and payment of an additional 3 per cent has been ordered; that under the order of court providing for the payment of this dividend, which order at the time of the filing of the intervention was being published in the newspapers of the city of Macon, any claim to the dividends due upon the above-mentioned balance would be barred within ninety days from the date of the passage of the order, November 12, 1920, and the fund would be subject to distribution among creditors of the bank who had been diligent in asserting and proving their claims; that petitioner was named executor of the will of C. H. Solomon, but the will had not been .probated and he had not qualified as' executor, and the estate, being inconsiderable, had been distributed by agreement between petitioner, two other brothers, and a sister of C. H. Solomon; that because of the death of the assignor and assignee and the lack of any record of the administration of the property assigned, together with the failure of the creditors of C. H. Solomon to lay claim to the above-mentioned balance or to bring suit on the bond of the assignee, the law will presume, after the lapse of the long period of time, that the trusts of the assignment have been satisfied and that the assignee duly performed the duties imposed upon him; that if there were any creditors who had not been paid, they had been guilty of such laches and negligence as would constitute a bar to any claim they might have to the balance mentioned; that petitioner, as executor of the will of C. II. Solomon, is entitled to the liquidating dividends due upon said balance as reversionary interest belonging to the estate of said testator; and that petitioner is without an adequate remedy at law. He prayed: (1) that a successor to the deceased assignee of C. H. Solomon be appointed; (2) that the receivers of the Exchange Bank of Macon be directed to pay to such successor all dividends due upon said balance; (3) that the court decree the said balance to be, in equity, the property of the estate of C. H. Solomon, and by appropriate order provide for the payment of same to petitioner as executor of the will of C. H. Solomon, upon probate of the will, or to such administrator with .the will annexed as might be appointed; (4) that the receivers of the bank be required to show cause why the prayers of the petition should not be granted; and (5) for general relief.</p> <p>The defendants demurred to the petition on the grounds: (1) the prayers are not pertinent or germane to the cause in which petitioner seeks to be made a party; (2) the petition is multifarious and uncertain, and seeks to combine prayers for inconsistent and conflicting relief; (3) the petitioner has a complete and adequate remedy at law in the appointment of a receiver or assignee as successor to the deceased assignee; (4) the respondents (receivers of Exchange Bank) are not necessary or proper parties to an action for the appointment of such successor or receiver; (5) respondents are not interested in any controversy between petitioner, as executor of the will of C. H. Solomon, and any receiver or assignee so appointed, and it is not proper or equitable that they should be required to answer the allegations of the ■ petition, showing cause why any sums received by the assignee should not be paid to intervenor, and they should not be charged with the responsibility of saying that payments are made under proper order of court; (6) -the relief prayed is not pertinent to the case in which respondents were appointed receivers of the Exchange Bank of Macon; and (7) there is no equity in the . petition.</p> <p>The petition was amended by setting up that the will of C. H. Solomon had been probated in the court of ordinary of Bibb County, and that petitioner had qualified as executor; and praying that he be permitted to prosecute his petition for intervention, and he granted the relief prayed in his official capacity. Respondents then demurred on the ground that “proper parties plaintiff are not made, in that the beneficiaries of the assignment have not been made parties to said application, and no beneficiary of said assignment is applying for relief.” Error was assigned upon the judgment of the court overruling the demurrers.</p>

Equitable petition. Before Judge Searcy. ' Fayette superior court. February 19, 1921. Lee Hand brought suit against A. L. Matthews as administrator of Samuel Westmoreland, and made this case: He is the owner of a described tract of land. This land formerly belonged to Westmoreland, who, on October 20, 1909, deeded the same to K. B. Banks to secure a debt due by the former to the latter.

<p>1. The instrument of conveyance of realty involved in this case created a valid, existing executory trust; and under the facts and circumstances alleged the petitioner was entitled to the relief sought. Whether, if in case of a sale the proceeds of the property sold should not be sufficient to discharge the amounts due and to become payable to the petitioner, the trustee (grantee in the deed) would be personally liable therefor, is not decided; as no personal judgment against him is sought.</p> <p>2. It was not error to overrule the grounds of demurrer: that the deed did not create a trust, but operated to transfer the legal title to the property to the grantee, subject to the provisions and conditions therein specified, as personal obligations assumed by him; that if the grantor sought to create a trust, it was void for inability to create a trust for the purposes stated in the deed; that the plaintiff is entitled to a personal judgment against the grantee, by reason of his acceptance of the conditions imposed upon him by the deed; and that the deed did not create .such a trust as would justify the court in decreeing that such judgment be a special lien on the realty conveyed.</p>

<p>Equitable petition. Before Judge Wright. Polk superior court. April 23, 1921.</p> <p>This is a petition brought by J. J. Cooper against A. E. Wigglllsj J. .0. Lynes, W. A. Camp, and T. P. Lyon as sheriff. On the trial the following facts appeared from the evidence: On September 9, 1909, Wiggins sold to Hobbs for $350 a certain lot of land in Polk county, containing forty acres, taking from Hobbs five promissory notes for the purchase-price, one for fifty dollars, maturing October 1, 1911, and the others for $75 each, maturing on the first day of October of each of the next succeeding four years. Wiggins gave Hobbs a bond to make title upon the payment of the notes. Hobbs went into possession under the bond, and on December 13, 1910, transferred Wiggins’s bond to Cooper, who then went into possession. Cooper did not agree to pay taxes on the land for the year 1910. It did not appear what consideration Cooper paid for this transfer. On December 20, a general tax execution was issued against Hobbs for $5.24, for his State and county taxes for the year 1910, besides costs, which was levied on the land, which was sold by the sheriff on the first Tuesday in March, 1911 (the seventh day of the month), to Leonard for $17.05. On March 1.5, 1911,' the sheriff executed to Leonard a deed in pursuance of the tax sale, and on the same date Leonard conveyed the land to Cooper, who had remained in possession of the same since the transfer to him by Hobbs of Wiggins’s bond. Leonard never went into possession; and he testified, that, in purchasing the land at sheriff’s sale, he acted for himself, paid his own mone)^ and had no arrangement with Cooper to purchase it at the sheriff’s sale; and that Carmichael asked him (Leonard) to purchase the land. He testified further: “I went to him [Cooper] and offered to make him a deed afterwards. I didn’t offer to make him a deed; I sold it to him.” After paying the taxes, $5.24, and the costs, out of the $17.05, which Leonard paid the sheriff on his hid at the tax sale, the balance, by the direction of Hobbs, was paid to Cooper.</p> <p>On February 8, 1916, Wiggins sued Cooper for the land; and on the trial a nonsuit was granted. Wiggins transferred to Lynes the five notes which Hobbs had given for the purchase-price of the land, and at the time indorsed them, as did Camp. On September 14, 1917, Lynes brought suit on these notes against Hobbs as maker, and Wiggins and Camp as indorsers. Hobbs pleaded that the notes had been materially altered since he executed them, and without his knowledge or consent. Wiggins and Camp made no defense. On the trial, March 21, 1918, a verdict was rendered in favor of Hobbs, and a judgment against Wiggins and Camp, for the aggregate amount of the five notes. An execution issued upon this judgment was levied on the land in question, as the property of Wiggins. Cooper has remained in possession of the land since he took a transfer of Wiggins’s bond for title. He did not testify on the trial.</p> <p>At the conclusion of the evidence the judge ruled that he would direct a verdict for Cooper, if he would pay the purchase-money due on the land for which Lynes had obtained a judgment; and that a decree would be so molded as to protect Cooper in all respects as to his title to the land, and from any further liability in respect of the same. Cooper, by his counsel, refused to make such payment; whereupon the judge directed a verdict for the defendants. Cooper moved for a new trial; the motion was overruled, and he excepted.</p>

<p>1. Where a testator nominated ■ his wife as executrix and bequeathed to her the residue of his estate real and personal, “ during her natural life, to be used as she thinks proper,” with power to dispose of any property thereof “ as she thinks to be best interest of the estate and to maintain herself, and at her death whatever may be left by her shall be equally divided between ” the testator’s heirs, and further directed that his executrix should take charge of, manage, and control the estate “ in her own right and title,” without making inventory, return, or bond and security, “ and manage it as if I were living,” the will created a life-estate in the wife, with remainder over, and conferred on her power individually to dispose of any part of the estate, and the power as executrix to take possession, management, and control of such property as fully as the testator could do if living.</p> <p>2. A lease by the executrix of land of the estate for the term of five years, for a consideration which on its face was a fair value for the rent of the property (the lessee executing rent notes for the whole term), should be construed as a legal execution of the power conferred on the executrix as such, rather than as indicating an intent to refer to her individual life-interest in the land. Hill,' J., dissents.</p> <p>3. 4. Where after the death of the executrix the land was sold by an administrator de bonis non, if the purchaser, with actual notice of the lease, unlawfully evicted the lessee before the expiration of the five-year term, an action for damages would lie.</p>

<p>Equitable petition. Before Judge Park. Putnam superior court. March 22, 1921.</p>

<p>Petition for injunction. Before Judge Hutcheson. Newton superior court. March 23, 1921.</p>

<p>Indictment for murder. Before Judge Sheppard. Tattnall April 23, 1921.</p>

<p>1. The evidence was sufficient to authorize the verdict.</p> <p>2. “ Alibi, as a defense, involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission; and the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.” The evidence, construed most favorably for the defendant, did not reasonably exclude the possibility of the presence of the defendant at the scene of the homicide, and therefore it was not error to fail to charge the law of alibi.</p> <p>3. The court did not err in refusing a new trial.</p>

<p>Validation of municipal bonds. Before Judge George L. Bell. Fulton superior court. August 6, 1921.</p>

<p>Accusation of misdemeanor. Before Judge Rourke. City Court of Savannah. June 18, 1921.</p>

<p>Indictment for murder. Before Judge Mathews. Bibb superior court. July 26, 1921.</p>

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

<p>Injunction. Before Judge Kent. Laurens superior court. July 26, 1921. •</p>

<p>Under the facts appearing in the record, the court erred in appointing a receiver.</p>

<p>Petition for injunction. Before Judge Hammond. Burke superior court. August 22, 1921.</p>

<p>Temporary alimony. Before Judge Littlejohn. Macon superior court. September 26, 1921.</p>

<p>Indictment for nrurder. Before Judge Park. Morgan superior court. November 5, 1921. See 151 Ga. 388 (106.S. E. 903).</p>

<p>A petition by heirs at law, to recover land of one in possession of it and claiming under their ancestor, alleging that their ancestor held title to the land at the time of his death and had devised it to one of his sons, etc., but not alleging that their ancestor died seized and possessed of the land, and not negativing a grant of it by him, was properly dismissed on demurrer.</p>

<p>Indictment for rape. -Before Judge Hodges. Hart superior court. November 4, 1921.</p> <p>The defendant was indicted for rape alleged to have been committed by him on Fannie Nixon on September 15, 1921, in the county of Hart, this State. The evidence for the State was as follows:</p> <p>Fannie Nixon testified that she was a widow, fifty-one or fifty-two years of age. Doc Adams, Mr. Temples, her brother Charlie, and Mitch Adams were her closest neighbors. Her house fronts on the public road, not far from it. Doc Adams lived not very far from her house, in holloing distance. On or about September 15 (the trial occurring October 13, 1921), Thursday night three weeks ago, she was at home alone. She went to bed about dark, or a little after. Doesn’t recollect whether she had a light, but guesses she did. . She had a light. Will Ravenel and Rufus Adams are all that she heard of coming to her house that night. There might have been one or two more. Sometimes there are so many running up and down the road. She has been living in war since her husband died. Will Ravenel came to her house, and Rufus Adams claims they were together. She felt like it was about twelve o’clock in the night. She heard a calling and a knocking when they came to her house. It was just knocking at the door and kept knocking. Rufus Adams was knocking. She let him in. When he came in he said that he had a little whisky out there that he had gone off for and had for his boy. He said, “ Aunt Fannie, I thought you were sick, and I thought I would stop and give you some of it:” and she told him she did not care much about it, but he could pour her out some. She hacT gotten out of bed, opened the door, and lit a lamp. She did not go outside of the house. The whisky was brought inside of the house. About a half teacupful was poured out for her. She drank a little of it, and the balance next morning. Rufus said Will Ravenel was with him. She saw the bulk of Will Ravenel out there in the road. She had been knowing Will Ravenel all the year. He had been passing up and down the road all the year, and he took charge of the stables like they were his. Don’t know where he kept his mules, but his wagon and buggy stayed out there under her shelter. Rufus didn’t stay at her house very long after he got there. She told Rufus that this didn’t look nice at all, coming here at this time of the night; told him he oughtn’t to be coming here waking her up. When she waked up she heard them talking, and she said, “ If you are going to bring me any whisky, tell Will to go on, that I didn’t want him to be in my house and nobody here but me.” Rufus said he was going to leave her; said he was going home. She saw the bulk of the man out there in the road come into her house. He jerked hold of her arms and told her that he was going to kill her. That was after Rufus left. It didn’t seem like it was more than five or six minutes. After Rufus Adams left, Will Ravenel came to her house. He jumped into the door and grabbed her by the arm. The door was open. When he came into the house he said he was going to kill her. After he said that he jerked her on into the back room, throwed her down on the bed, choked and smothered her with quilts. When he first came into the house he took hold of her arms and shut the door after him. She was in the front room when he came into the house, and she was carried from there to the back room. At the time he grabbed hold of her he tried to make a wife out of her; that is what he tried to do, but he didn’t. (The stenographer here made this note: The witness had turned her head to one side, and he understood her to say in a low tone of voice, “but he didn’t.”) lie choked her until she couldn’t put her hands on her face, throat or breast anywhere for two or three days. He had murdered her, because she knows she will die. She had just as well be dead now. She had done suffered ten thousand deaths. She was trying to get away from him, and she screamed and holloed as loud as she could. She thought somebody would hear her and come to her. She told him to turn her loose, and it was not his place; that she was at home and was not boarding him at all, and he didn’t have any business there at all, for she didn’t give him any provocation to be there.</p> <p>In regard to stating whether or not she said a while ago that he tried to make a wife out of her, she guesses so. He had hold of her arm and choked" and smothered her. Besides choking her he mashed her; besides mashing her, he acted like a dog, she reckoned. When he choked her and carried her into the back room he had sexual intercourse with her; that is what he tried to have. She had on the clothes that she had been wearing that day. Doesn’t recollect that she had pulled off her clothes to retire. She might have laid down with her clothes on. Sometimes she does. Thinks she laid down with her clothes on. When Alex came after her she pulled her clothes off, stripped and put on some clean.clothes. On this particular night she remembers, this party who pulled up -her clothes .and had sexual intercourse with her. There were bruises on her body. Her neck was clawed and scratched up clean down to here on her neck (indicating). . She spit up lumps of blood all the next day. After this person did this he broke and run. He broke through the dining-room and bedroom and went on home. The reason she knows that is, she saw the bulk of him. She tried to get to the door to see where he went. This happened on Thursday night. With reference to how many weeks, “wasn’t it last week ? ” She does not know what month it was in. With further reference to how many weeks it has been, she said, “ Wasn’t it last week when it was done ? Dr. Hailey and you [referring to the solicitor-general] come down there — you have better minds ” than she has. This happened in Hart county. The next day after this happened she never saw anybody but Mitch Adams hauling syrup cane, and saw an automobile. She was .lying down most of the time. Couldn’t hardly be up at all. In regard to whether she saw anybody passing the house the next day, she told the solicitor-general that all she knew; that was Mitch Adams hauling syrup cane. Mitch came into the big road, but she didn’t speak to him, and why she didn’t was she was bad off. Little Mitch Adams was the first person she told about this transaction. She told him she wanted him to go to Alice and let them know it at once, and she wanted to have some one come down and swear out a warrant and put him in jail. She didn’t want him to come back to finish. That was on the next day. She doesn’t recollect what time of day it was, but it was about 11 o’clock. The reason why she didn’t tell somebody about it sooner, she went out to get Bufus Adams, and told him to come up, but he didn’t come. When he did come on Saturday, she thinks it was, he said, “Aunt Fannie, I wouldn’t tell this — I don’t believe it looks so bad.” Explaining why she did not make an outcry sooner about this, she said “Mr. Skelton, would you feel like going and striking off up here, when you couldn’t touch your throat or face or nothing with your hands and coughing up blood?” She thinks she would have been dead in two or three days. The reason she didn’t tell somebody about it, there was nobody to tell. She told little Mitch Adams, and asked him to go to Alice and let them know about it. She wanted him to come down and swear out a warrant, and have him' where he wouldn’t bother' anybody else. Mr. Temples came to her house — she doesn’t remember when — but he came up there and came too late and got Mr. Kidd and got Sheriff Brown and Dr. Hailey and sent them down there. Somebody came in her house and she asked who was that, and he said “ Will Bavenel.”</p> <p>Cross-examination: When- Bufe came in with Will Bavenel I saw him with Bufe. He was out in the road. Q. “ Do you think you wouldn’t know anybody that come into your house ? ” A. “I told you when Will come back the second time the light was burning. That was at the time Will come in the door. I told you a while ago it was four or five minutes after Bufe left until Will come back the second time.”</p> <p>Rufus Aclams, for the State, testified: I live something like two hundred yards from Mrs. Fannie Nixon’s. Mr. Temples lives in about four hundred yards. Will Ravenel lives about a quarter of a mile from Mrs. Nixon’s. I remember the time of this alleged offense. Was with Will before night, and was with him when we come by the home of Mrs. Nixon. It was about twelve o’clock, I guess. Stopped there with the intention of giving her a drink of whisky, if she wanted it. There was a light in the house. Went up there and knocked on the door, and she came to the door. She asked me to come in. Told her I did not have time. She asked who was with me. I said, "Will.” I said, "Will has a drink of whisky and wants to give you a drink.” I said, "If you want a drink I will give you a drink.” She said, “ All right.” She got a cup. I carried it to him, and Will poured it half full. When he poured out the liquor he -said, " I have got to go home, and am going through the field.” Will was about twenty-five yards from the house, on the back side. Will left Mrs. Nixon’s first. It was about four or five minutes before I left. lie went towards his home. Don’t know what become of him from that time on. Didn’t see him any more that night. I went home. Mrs. 'Nixon was standing in the door, and I handed her the whisky in the cup. She set it down in the hall. Told her I wanted to get a match. She went and got a match. I lighted a cigarette and went home. My house is in plain view of her house. It is about two hundred yards, I guess. When I got home I went to bed. Didn’t see Mrs. Nixon until the next morning. She came to the top of the hill and holloed for some of us to go up there. Nobody went. She was about twenty-five yards from the house. Didn’t go to her house until Saturday morning — this was on Friday evening. She made complaint of something happening to her. She said that he came in and grabbed her. She made complaint of having been assaulted or raped. On Saturday when I saw her, her neck was scratched up. There seemed to be cut places on her neck and on each side of her throat, and it looked like it had been done with finger-nails. Didn’t observe any other marks of violence of a more aggravated nature, but saw those on her throat.</p> <p>Cross-examination:. Saw Will on Friday. He was at his home. Went to see if I could get him to help pull cane-fodder. Saw him on Thursday evening and Thursday night. He, his bojq and I went to Mr. William McCurley’s. Don’t think we brought any whisky. I taken a drink that night after we got hack home. In coming back from the fish-fry we passed by our house before we got to Mrs. Nixon’s. The reason I went up the road with Will, he said that he wanted to see Charley Stowers, and he insisted on me going up the road with him. I didn’t go up there. Will went on towards Charley’s. He went up here with me and passed by Mrs. Nixon’s house. Stopped at Booze’s house. Will was gone down the road ten or fifteen minutes. I sat on the side of the road. That was about four or five- hundred yards from Mrs. Nixon’s house. There was a light down there at her house. Will didn’t see the light when we were at Booze Temples’. Saw the light at her house while passing only. Will left me at Booze’s, and I sat down on the bank. Going up the road I took a pretty good swallow of whisky, something like half a teacupful. I suppose it was homemade. Will had it and give it to me. It was in a gallon-jug. Austin was not along. He’ went on home when he came back from the fish-fry. Will took a drink. When we got back to the house my father walked in and went to bed. I suppose it was about half past eleven or twelve o’clock. Austin got out in the yard, and Will told him to go on home, and said, “ You are pretty drunk, make it if you can.” Will suggested that I go up to Charley Stowers’ with him. I wanted to get some tobacco. Mr. Temples run a store before you get to Charlie’s. After I got up there it was late, and I wouldn’t get him up to get me some tobacco. Stopped there at Booze’s and went on. When we got back to Mrs. Nixon’s house I saw a light burning. The door wasn’t open. Aunt Fannie was standing in the door when I left. Stayed there something like five minutes after Will left. Didn’t see Mrs. Nixon taking any whisky while I was there, but handed it to her. Will said that he wanted to give her a drink. I said, “AH right, don’t go up in the yard.” There was about a gallon in the jug. I said, “ If she wants any whisky I will bring it up there, and I will bring a glass. I don’t want her to see this whisky. Will was standing there in the door. The moon was shining. I went to the porch, asked her if she wanted a drink, and she said yes, and she got a glass, and gave her a half-teacupful. When I left Mrs. Nixon to go to 'iny house, I went to the back door to a little room on the far side, which was away from Mrs. Nixon’s. Saw Mrs. Nixon the next morning at a distance, but was not close enough to talk to her. She holloed for some one of us to go there, but nobody went. The reason why was we were fixing to go to the field, and I was in a hurry. She didn’t hollo like she needed help, but she wanted some of us to come there. Didn’t tell her not to say anything about Will.</p> <p>Mitch Adams Jr., for the State, testified: I am a son of L. B. Adams. I live about two hundred yards, I suppose, from Mrs. Fannie Nixon’s. Her home is in view of my home. I remember the time of this alleged assault, which happened in the month of September,' about the 15th, on Thursday night, I think. Saw Mrs. Nixon on Saturday following, about twelve o’clock at her home. I went to Booze Temples’ store, and passed by, and she holloed to me and said she had something to tell me. She said somebody had come there and had intercourse with her. She said she had been raped. She wanted me to see about her, and she said that he treated her like she was his wife. I went to the store and told them not to say anything until I went to Alex and told him. Told Booze about it first, and if he saw Alex to tell him. Bufus Whitney, his brother in law, came down the road and she told him. I went to town and told Mr. Kidd. Mr. Kidd went and got him Saturday evening. That was the first night I had seen Mrs. Nixon during that week. Mrs. Nixon is about fifty years old, and is a weak woman. She had the fever one time and lost her health'.</p> <p>Cross-examination: This thing happened on Thursday. Don’t remember whether I passed Mrs. Nixon’s house that day. Saw Will Friday. Saw him over there at his house, when I went over there early in the morning. Went to Will’s early Friday morning about a half hour by sun. Will was just, getting up while I was there. Had a drink that morning out of a gallon-jug. Will gave me the jug and all that was in it. The first conversation I had with Mrs. Nixon was on Saturday about twelve o’clock. She said I was the first one she had told it to. Mrs. Nixon had a severe spell of fever about ten years ago. She is not as bright as the brightest, but her mind is such that she knows people, and she talks with a reasonable degree of intelligence in ordinary conversation. She is able to take care of herself.</p> <p>Monroe Kidd, for the State, testified: I know Will Bavenel. He weighs about 175 pounds, I should judge, and I reckon he is a pretty stout man. I was brought information to the effect that Mrs. Nixon had been assaulted. An arrest was made. After the arrest I went to the home of Mrs. Nixon. Mrs. Nixon was on the front porch lying on a pallet and I observed abrasions on her neck. The collar of the dress was torn. The left side of the neck was bruised and considerably swollen. The skin was broken about the collar. In my opinion these wounds and abrasions were made with the hands and finger-nails. The breaks on the skin indicated that she had been choked. She was very weak and could scarcely talk, but she was rational. She knew me, but did not know Mr. Britt Brown. Her conversation indicated that she was rational. Her mind was normal. She was excited, but after a minute or such a matter she'beeame quiet, and related the circumstances to Mr. Brown, myself, and Mr. Temples. I have known her for something like thirty-two years. For the past ten years she has been physically weak, and her physical condition is not such as to enable her to have much powers of resistance.</p> <p>Cross-examination: In stating that she was rational I didn’t mean that she was in possession of all her senses. I meant that her mental condition was as good as it has been in the past ten years. Her mental condition has not been the best for the last ten years. It was caused -from fever. The throat around the collar of the dress was scratched on both sides, as if it had been clawed with finger-nails. This part of the neck was swollen and bruised, as if it had been squeezed. That was in front. A man with a big hand could get nearly around her throat. The swollen place was on the side of her neck. Didn’t see any blue place on the goozle, but it was red. Don’t know positively that she was scratched with finger-nails. It is possible that she could have scratched herself, but she could not have bruised this and have caused this side of her neck to have been swollen. The only bruises I saw were on the throat and neck. Haven’t got anything against Will. I want to see him have a fair trial, justice. I think he is the meanest nigger I ever saw. Mrs. Nixon.is in a weak condition, which I attribute to her sickness. She hasn’t the best mental condition. Have seen her when she was irrational. Don’t remember the exact time when it was, but Dr. Hailey and I went down there once to treat her husband John, and at that time she was not norma] or rational. She just seemed nervous at that time and talked about everything. That has been ten or fifteen years.</p> <p>Dr. W. I. Iiailey, for the State, testified: Am a practicing physician at Hartwell. Have been engaged in the practice about twenty-nine years. I know Mrs. Fannie Nixon, and have known her about that long. I practiced for her and her family, and with her. It has been since her spell of sickness. Several years ago she had a spell of tj^phoid fever. Since then I have visited her as a physician a number of times. Have observed her on the streets, and at other times when I visited her in a professional way. She has been pl^sically weak most of the time. Her mental condition has been fairly good; it has not been good, but fairly good. From my knowledge of her in the past ten years, in my opinion Mrs. Nixon is a woman who possesses such a degree of mentality as to enable her to distinguish right and wrong. In her physical condition she is not strong enough to engage in a continuous resistance against force. She is a woman of such physical weakness as to be easily overcome by force. I remember the day of this alleged assault. Saw her on the 24th of September, and it was alleged to have been on Thursday night before. Was there on Saturday evening. I made a physical examination of .Mrs. Nixon, and forbid marks of violence or abrasions. She had been choked, and finger-nails had cut into the skin on one side. From the character of the abrasions I could determine that they had been made by finger-nails. The left side of her neck was swollen. She was scratched badly where the choking was. The outer skin was scratched off and showed signs of blood where the finger-nails went into the outer skin. At the time I saw it it was not bleeding. It was a draw cut with finger-nails into the middle skin. The abrasions of the skin were of sufficient depth to cause a scab to form, and I observed the scab one week after I made the first examination. I found marks of violence on her legs. On her left and right legs I found blue places. The blue places were done with a sharp instrument, with pressure of some kind. Found some red places below the knee. There were two or three on each side of the leg.' She was complaining very much with her left foot. There were signs of soreness around the chest. She could hardly stand for me to move her shoulder from one side to the other to examine whether she had a broken bone. She could not stand for me to examine her. That was from soreness. She said she was spitting blood, but I did not see any at that time. Made an examination of her private parts. Found the vagina and the vulva congested, swollen, and I found inside of the vulva matter like seminal fluid or vaginal mucous. By congestion I mean a swollen condition, which is an indication of sexual intercourse; and there were reasons to indicate that sexual intercourse or violation of the woman had occurred. The congested condition of the vagina and vulva was brought about by penetration of some kind, which I think was done with the male organ.</p> <p>Cross-examination: I went down there at the solicitation of Alex Temples, her son in law. He told me she had been raped. Didn’t find any bruises on the throat, but cuts with the finger-nails. I think I can tell finger-nail cuts from a scratch by the shape and appearance. There were five on one side and one on the other. The thumb-nail was on one side, and five on the other. The neck was scratched. In making an examination of the vagina I found matter that looked like semen — vaginal mucous. I know how semen looks. I don’t know that mucous out of the nose looks the same way. It has a different appearance. I don’t know what it was, but it looked like semen more than anything else. How I know it was a mucous discharge, it looked like it. I did not say it was all mucous; I said semen. Didn’t carry a microscope. In a great many persons after they are.passed forty years an emission might take place without spermatozoa. An examination of’ a normal man thirty or forty years of age will disclose spermatozoa, nine times out of ten. It is owing to the number of times sexual intercourse has been had, and the short length of time. If the alleged offense took place on the fifteenth, and I went there on the 24-th, I would have gone nine days later. I went there the second day. I was there on Saturday after it was alleged to have been done on Thursday. The 24th is the time I went there.</p> <p>If you make an examination of semen it will disclose a germ. A discharge of a woman is a germ which is called an ovum. I don’t think I-would have discovered spermatozoa, if there had been sexual intercourse, nine times out of ten, if I had made an examination. If intercourse had taken place between Mrs. Nixon and this man here, and he had gonorrhea, it might or might not have shown up in Mrs. Nixon by this time. It is not true that in a good many cases a person is almost certain to catch gonorrhea, Gonorrhea .is catchable, but no man can say what percentage of gonorrhea is catchable. Mrs. Nixon is not mentally strong and she is not physically strong. In 1919 I was on the jury that committed her to the asylum. She was not in a mental or physical normal condition at that time. The only thing we had in view at that time was to have her cared for by some special man, and in company with Dr. Meredith she was adjudged a fit subject for the lunatic asylum on the 28th day of November, 1919. Her mental . condition is better and has been better since that time. There is no question in my own mind, from my experience and my examination of her, but that she has had sexual intercourse. I am positive about that. I believe she has been raped. I am not positive that this defendant did it.</p> <p>William McCurley, for the defendant, testified: Was at home, I recall, part of the time on Thursday night about the time of the alleged rape. On Thursday night I carried Will and Austin to a fish-fry, and Doe Adams and Bufus Adams went with me. I got home about ten or eleven o’clock. In regard to where Will went, they got out and went home. They left my house. They went in the direction of home. Doc and Rufus were with him and Austin.</p> <p>Cross-examination : In going home he would go by Doc Adams’.</p> <p>Willie Tate, for the defendant, testified: I know this negro ov.er there. Saw him in Elberton three weeks ago, I suppose. I was in jail. I saw his penis. It looked like there was some kind of disease, clap I suppose, wrong with it.</p> <p>Cross-examination: I am not a doctor. It looked like it was running, and judging from mine (I have had the same thing), it looked like to me it was in the same shape mine was in. He had a bottle like that (indicating), but smaller than that, but the same kind of medicine, and I saw him using it. It cured me.</p> <p>B. B. Brown, for. the defendant, testified: I went to the jail in Elberton with this negro on the 24-th of September. Had a conversation with Bufus Adams down here in front of the store. It was on Saturday evening; and he said that he, his father, Will, and several others went down below Negro Sardis to a fish-foy, and they got hold of some liquor and they all got pretty drunk, and they came back by home and his father stopped here at home, and him and Will started to Charlie Stowers’ and they stopped at Mrs. Fannie Nixon’s, and Will wanted to give her a drink. Rufus said that he went and asked her if she wanted a drink of liquor, and she said all right, and he poured out what he thought was a reasonable drink. He said she said to fill up the cup, and he filled it up and she drank it; then she said to pour out a drink for the next morning, and he did that. They then went to Charlie Stowers’, and Rufus said they come back, he went home, and Will went home. He said that Will went to Miss Fannie’s and caused this trouble, so she said. He insisted that a mob was going to kill him.</p> <p>Cross-examination: He said that this alleged offense was committed on Thursday night, and this was on Saturday evening just two days afterward.</p> <p>Austin Ravenel, for the defendant, testified: Think I am fourteen. Heard Pa say that. Last time I saw him before to-day was when they locked him up. Mr. Kidd came after him. Thursday night before, I went to a fish-fry with Mr. William McCurley, Mr. Mitch Adams, Joel Milford, Coyle Sanders, Rufe Adams, and Pa. Saw some whisky setting in the car. Rufus Adams took a drink. Did not see my father drink that night, but did the next morning. After we left the fish-fry we came home. We came back by Mr. Mitch Adams’ house. We walked from Mr. McCurley’s home, four of us. When I got to Doc Adams’ I went on home, and my daddy came on behind me. Heard him whistling. Don’t know what time it was when we left Doc Adams’, but it was pretty late. Don’t know what time I got home. It didn’t take me very long to walk from Doc Adams’ to our house. Was home when my daddy come. I pulled off my shoes, and he walked in, shut the door, and went to bed. Saw him the next morning. I got up the next morning and left him in the bed. Went to feed the mules, and Rufus Adams came over there. Me and him went back to the house together. My father was in the house patching a pair of pants. He had already got out of the bed. Left him in the bed when I went to bed. If he left the house that night I don’t know anything about it. Believe I would have heard him if he had left. I didn’t sleep sound that night. He could not have gotten out of the house without my hearing him. Didn’t hear him go out. He was there the next morning. Rufus Adams and I had a drink the next morning.</p> <p>Cross-examination: Got up on Friday morning just as the sun was rising. Didn’t hear anything that happened on Thursday night after I went home. Didn’t hear any boys around home hunting possums. The reason I didn’t was there was nobody around, I reckon. When I got home Thursday night I pulled off my shoes and went to bed and went to sleep. Didn’t sleep all night. My father was in the bed with me. He come not long behind me. I had time to get in the door and he was coming by our barn. Don’t know what took place at Mrs. Nixon’s.</p> <p>Charlie Stowers, for the defendant, testified: I live near Will Ravenel’s, and pretty close to Mrs. Nixon’s. Didn’t hear any noises at Mrs. Nixon’s from half past ten on. The first part of the night I was in town. That was the night these men went to the fish-fry. I didn’t go with them. I was back by twelve o’clock. Didn’t see Will Ravenel come to my house that night, and didn’t hear anybody down the road. Didn’t see Rufus Adams that night. Can see Mr. Bruce Temples’ house.</p> <p>Curtis Kay, for the defendant, testified: Know Mrs. Fannie Nixon, and have had occasion to pass her house. Have seen her in an irrational frame of mind one time. She seemed to have a spell of some kind. Couldn’t say what the trouble was. She had a spell, and they all thought she was going to die. Drs. Hailey and Jenkins came while I was there. Mr. Nixon was there drinking. Couldn’t say that he acted like anybody drunk. She seemed to be torn up about something. She wrung her hands. She walked and seemed to be pretty strong.</p> <p>Dr. T. R. Gaines, for the defendant, testified: Am a practicing physician. Have been practicing five years. Have never had any experience previous to this time, except in the medical college, and had three and a half years in the army, and one and a half-years in a hospital in Atlanta. There is no way of telling absolutely, without a microscopic examination, that the stain resulting from sexual intercourse is semen from a man. The fluid thrown off from the female reproductive organs resembles semen. You couldn’t distinguish that with the naked eye. A distinguishing-characteristic of a woman’s discharge is the ova, and that of a male is spermatozoa. The ova is a round body. The spermatozoa is shaped more like a tadpole. Wouldn’t say it was an easy matter to examine a person two days later, who is said to have had intercourse, to tell whether the stain on the outside of clothing or on the legs was the discharge of a man. It can be done with a microscope. A discharge from some men does not contain spermatozoa, which is the case with settled men or very old men. If this defendant is a normal man, it is my opinion that discharge from him will contain spermatozoa. It might have been possible for me to have taken a microscope down there and determine whether the discharge was from a man or woman. I wouldn’t say it was very probable after two days. I don’t know whether any expert can testify of his own knowledge, without a microscopic examination, whether a discharge is from a man or woman. It is not true that during sexual intercourse a woman ejaculates like a man. It is possible that through her ejaculation a discharge could get on her clothes and leg without sexual intercourse. You couldn’t tell whether it was from her or the man, unless you put it under a microscope. It would not be possible in every case to make an examination and tell whether or not the person she had intercourse with would leave evidence of having had the clap. In some cases he would, and in some cases he wouldn’t. Gonorrheal infection depends upon the stage the gonorrhea is in, whether acute or chronic. In most instances, if either of the parties had acute gonorrhea, it would show up, but not in every case. Think sixty per cent, of the cases would show up infection in the acute stage. An examination of the penis alone would not tell whether it was an acute or chronic case. In the acute case we have the white discharge with pain and blood on urination, and usually weakness from the back, general bad feeling and some temperature. In chronic stages we have what is known as occasional dripping instead of profuse discharge, dripping of the urine at the end of urination. General bad feeling is not so marked.</p> <p>Cross-examination: How long spermatozoa will live depends upon where they are, and the conditions. It depends on which female organ they are deposited in, whether the vagina, the uterus, or the Fallopian tube. Gestation takes place in the uterus. Sometimes it begins in the uterus. If gestation starts in the uterus it stops right there. That is the normal place. The Fallopian tubes are 'the natural place for gestation to begin at times. If this alleged assault happened on the night of the 24th, I think there would have been signs of seminal fluid on the private parts of the female Saturday evening, between four and five o’clock, if we could recognize them. It will be possible to discover that, with the aid of a microscope, if we recognized such things. Don’t know whether they will be in the vagina two days or not. They would in the uterus. To determine whether or hot a given deposit is from a male or female, we would have to determine that by a microscopic examination. The ovum is thé egg. The spermatozoa is like a wiggletail under microscopic examination. I wouldn’t say in this case definitely whether you could tell two days after the alleged act that sexual intercourse took place. It is not natural or probable that a woman will ejaculate without there being some agitation from actual sexual intercourse. If there was any female seminal deposit in this case it would have been brought about by artificial means, but in diseased conditions we have that. Gonorrhea is transmitted by a germ. Seminal fluid is a white, starchy-like fluid, and if on clothes it would dry up like starch. In gonorrheal discharges you find the organism causing the gonorrhea.</p> <p>Dr. W. E. McCurry, for the defendant, testified: It would be possible to discover spermatozoa in the vulva or the womb if I were to make an examination with a microscope two days after rape had taken place and actual penetration had been of the womb. Don’t think it possible for the spermatozoa to live outside the womb or on the clothing. They wouldn’t live probably longer than a few hours, not ov.er twenty-four hours. Don’t think there have been cases whether they lived as long as twelve months on hairs. You could recognize them dead or alive. In making an examination of the case two daj^s after the alleged rape I could probably distinguish spermatozoa in semen by a microscope or other means from the vagina; not actually from the clothing, but think the probability would be you could. To make an examination like that I think it essential to make a microscopic examination.</p> <p>Dr. W. 0- Meredith for the defendant testified: It is not possible to determine spermatozoa in a discharge from a man without resorting to a microscope. They could not be discovered with the naked eye.</p> <p>The defendant made a long and somewhat rambling statement, giving an account of his going to a fish-fry on Thursday night of the alleged offense, and a search by him and others for whisky on that occasion. Finally he got a gallon of liquor, for which he paid twelve dollars. He then said, “ You white men have a drink first.” William McCurley, the driver of the car, took a drink. Fufe Adams took a drink. Defendant took a drink. They stayed at the- fish-fry a half hour, and then started home. Got to Mitch Dooly’s where the Millford boy got out and took a drink going-down the road. They got to Mr. McCurley’s house, the defendant sitting behind in the automobile with Adams: His boy was holding the jug. Adams said, “Will, you hold that sister, and don’t break it.” Before they got to Mr. McCurley’s house Fufe Adams said, “ I will tell you, if I had a wife to-night she sure would be--,” and he said to defendant, “ Will, what would you do ? ” and the defendant said, “ I would try if she would give it to me.” And they all burst out in a laugh. They went on home, and they got out at Mr. MeCurley’s. Adams said, “ We had better take it again.” He took a drink, and the defendant took a drink. When they got in Mr. Adams’ yard, defendant said, “ Do you want a drink ? ” and he said “ No, take it home with you. I will be there in the morning.” Adams went in the house. The defendant started on. Adams said, “ Will, I want some of that whisky,” and the defendant said, “ Go in the house and get a bottle and pour out some.” It was awful mean liquor, and he couldn’t drink much of it. The defendant and his little boy went on home, and the boy beat him home a little bit. Went in, shut the door, and went to bed. The next morning pretty soon, Eufus Adams came over there. “I said, ‘Here come Fufe for his dram.’ He didn’t say anything about it, and’ got to telling something about Mr. Mitch Dooley and a darkey having trouble on account of liquor. We heard somebody talking, and he said, ‘ Yonder comes Mitch now and Pa,’ another white fellow. Dooly said ‘Will, I want a dram,’ and I said, ‘ Well, we’ve got it,’ and he said ‘ That is what me and Mr. Adams and this man come here for.’ ” He went back of the barn and got it and took it and set it down on the table, and said, “ There it is, gentlemen, help yourself,” and they drank and said toasts and big tales and holloed and laughed. They stayed over three hours, as near as he can tell. They went back to Mr. Adams’, and he went with them. That was Friday morning. They went up the road by Miss Fannie’s, and stopped the car where the road turns out to Charley Stowers.’ Saturday evening, about the middle of the evening, he and his boy came to town and came by Miss Fannie’s. Walked to the Backet store, and was going opposite to Mr. Alford’s, and Mr. Kidd called to him, “ Will, come to me,” and “ I walked up to him and I said ‘ what is it ? ’ and he said ‘ Come to the court-house with me,’ and I said, ‘ What is that for ? ’ and he said, ‘You will find out.’ He told Mr. Snow Skelton to handcuff me and lock me up. I said, ‘ Captain, what have you got me for ? ’ He said I was charged with raping old Miss Nixon, and he said, ‘Bufe told me that he went up there and poured out one teacupful of liquor and he went back and poured out another one and give it to her and went on home,’ and he said ‘ They done that, Will, to make up this, and to get your crop.’ That is what he told me. That is the truth of the thing.”</p> <p>Mitch Dooley, for the defendant, testified: Know Will Bavenel. Saw him on or about Friday after this happened at Mrs. Nixon’s. Saw him over there at a gin at his house. I, Mr. Adams, and-were there together. Guess we stayed half an hour over there. Saw Mrs. Nixon on Sunday evening after that at Alex Temples.’ She didn’t make any statement to me. She said that Mr. Monroe Kidd said that negro would be killed before night. She could rest assured of that. She said, I think, that she blamed the white folks for it as much or more as she did the negro.</p> <p>Burt H. Morehead, for the defendant, testified: Bemember seeing Mrs. Nixon one time at my home, something, like two years ago. It was sometime in the forepart of the night about nine or ten o’clock. No one was with her. She came and holloed. I had gone to bed. My wife went out, and she was inquiring as to where Mr. Snelling lived. It was not but a little piece. She wanted my wife to go with her to Mr. Snelling’s. She went with her up to Mr. Snelling’s. Mr. Snelling’s folks weren’t at home, and she came back to my house and spent the -night. I wouldn’t think Mrs. Nixon was in her right mind at the time.</p> <p>Cross-examination: She said she had got lost.</p>

<p>Indictment for murder. Before Judge Eortson. Clarke superior court. November 12, 1921.</p>

<p>Indictment for rape. Before Judge Park. Wilkinson superior court. November 7, 1921.</p>

Indictment for murder. Before Judge Meldrim. Chatham superior court. October 11, 1921. The defendant was jointly indicted with another for the offense of murder. He was tried separately, and the jury returned a verdict of guilty. He filed a motion in arrest of judgment, asserting that the death penalty had been imposed upon him without any valid verdict upon which to base the same, because the verdict returned did not specify the particular “ defendant ” found guilty.

<p>Petition for injunction. Before Judge Pendleton. Pulton superior court. November 9, 1921.</p>

<p>Ejectment. Before Judge Worrill. Early superior court. October 10, 1921.</p>

<p>Indictment for murder. Before 'Judge Boop. Meriwether superior court. June 30, 1921.</p>

<p>1. The verdict was contrary neither to the evidence nor to the law.</p> <p>2. Ordinarily, the admission of irrelevant testimony is not cause for the grant of a new trial.</p> <p>3. An instruction to the jury, which enables the plaintiff to recover on a theory other than that set out in his petition, is favorable rather than prejudicial to the plaintiff; and a new trial will not be granted on this ground.</p>

<p>Dissolution of injunction. Before Judge Hardeman. Toombs superior court. August 17, 1921.</p>

<p>Indictment for rape. Before Judge Highsmith. Wayne superior court. September 22, 1921.</p>

<p>Indictment for murder. Before Judge Worrill. Fulton superior court. September 19, 1921.</p>

<p>Indictment for passing worthless check. Before Judge Worrill. Seminole superior court. October -26, 1921.</p> <p>W. M. Berry was indicted for giving a worthless check, and was convicted. He moved for a new trial, which was refused; and this is the error assigned.</p> <p>On September 19, 1921, P. L. Watts loaned W. M. Berry forty-eight dollars to pay in part a fine imposed.upon him at Crawford-ville, Fla. Berry came back to Brinson, Georgia. On September 20, 1921, Watts went to Iron City, Seminole County, Georgia, and asked Berry to pay him. Berry said that he and his father would go out in the country and get the money. Hpon the evening of that day Watts went back to Iron'City, saw Berry, and asked him to pay back the $48 which he had paid for Berry in Florida. Berry said that he had gotten the money for Watts, had it in the bank, and would bring it to him the next morning. Watts said to Berry, “ If you have the money in the bank, just give me a check for the money, and it will save you the trip to my house.” Berry said, “ All right.” Watts wrote the check, and Berry signed it. Watts testified that he believed that Berry had the money in the bank as he said he had, and so accepted the check. Watts took the check back to Brinson, Georgia, and deposited it in bank; and it came back unpaid. Watts then gave it to his agent, J. C. Robinson, for collection. Robinson went to Iron City to see Berry to collect the amount of this check. Berry did not pay it. Robinson presented the check to the Seminole Bank at Iron City for payment, which was refused by the bank. At the time Berry gave his check he had no account with the Seminole Bank, and had never had such account. He had made no arrangement of any sort with the bank to pay this check before it was presented, and had arranged for no credit with that bank. He asked the cashier to let him know when the check came in, as he had given it, and wanted to protect it. When the check came the cashier of the bank notified him; but Berry did nothing about it, and the bank sent the check back.. The cashier notified him that this cheek had come sometime between two and four o’clock, and returned it after 4 o’clock. This cheek was as follows:</p> <p>“ Seminole Bank. Iron City, Georgia, 9/20/21.</p> <p>“ Pay to the order of P. L. Watts forty-eight and no/100 dollars $48.00. [Signed] W. M. Berry.’’</p> <p>This check bore the indorsement of Watts, various banks, and an indorsement “No account, Seminole Bank.”</p> <p>The defendant introduced no evidence, but he stated that Watts loaned him $48 to pay a fine at Crawforclville, Florida, and that .he told Watts that he and his father would get up the money and pay him when they got back to Tron City. The following day Watts came to Iron Cityr, and he told him that they had arranged to get the money, when Watts told him, if that was the case, to give him a cheek, and they could put the money in the bank and the check would be paid. ITe had never had any money in the Seminole Bank since it was organized.</p>

<p>Indictment for murder. Before Judge Summerall. Bacon superior court. October 6, 1921.</p>

<p>1. The charge complained of in the second division of the opinion is not erroneous simply because it fails to embrace other Instructions upon some other theory of the case, which would be appropriate elsewhere in the charge.</p> <p>2. Where, on the trial of one charged with murder, the defense of insanity ■ at the time of the commission of the act is relied upon, the burden of proof is upon the defendant to show his insanity by a preponderance of the evidence. The court erred in charging the jury that in such case “ the burden is on the defendant to make good such defense to a reasonable certainty and to the reasonable satisfaction of the jury.”</p> <p>3. The discretion of the trial judge, who passes upon the alleged prejudice and bias of a juror, from conflicting evidence, on a motion for new trial, will not be interfered with unless it is manifestly abused. There was no abuse of discretion in the instant case.</p> <p>4. As the ease goes back for a new trial, no opinion is expressed as to the sufficiency of the evidence to support the verdict.</p>

<p>Indictment for rape. Before Judge R. C. Bell. Doughertysuperior court. June 9, 1921.</p>

<p>Indictment for murder. Before Judge Hutcheson. Newton superior court. July 30, 1921.</p> <p>At the March term, 1921, of Newton superior court, John S. Williams and Clyde Manning were jointly indicted for the murder of Lindsey Peterson. The homicide was alleged to have been committed “ by tying a chain about the neck of said Lindsey Peterson and weighting the body with a certain sack full of rocks and drowning the said Lindsey Peterson in Yellow River.” Williams was tried and convicted; and the judgment-was affirmed by this court. Williams v. State, 152 Ga. 498 (110 S. E. 286). Subsequently Manning was tried and convicted. He made a motion for new trial, which was overruled, and he brings his case to this court assigning error on this judgment. The evidence introduced on his trial was substantially as follows: Carl Wheeler testified: I lived near Allen’s bridge, in Newton county, Georgia; was there the morning they found those people; don’t know who they were. They were men, two of them black men. Mr. Cassells’ boy went and found them. They were in the water. No part of the body was exposed except a shoe sticking up out of the water, with a foot-in it. I and another fellow pulled them out. They were dead. That was in Newton county. Don’t remember when it was. It was in the spring of this year, if I am not mistaken. These men were fastened together around the neck. Saw nothing but the trace-chains. A sack with rocks in it was tied to them. The sack was tied to those negroes, and the rocks were tied to them with a rope. Don’t think it was tied to the chain. We pulled them out on this side of Yellow river at Allen’s bridge. Was there when Sheriff Johnson came.</p> <p>Dr. C. D. Hardeman testified, that he lived two and a half miles this side of Allen’s bridge. Remembered the occasion when some bodies were found down there, on March 13, 1921. Went down there about the time the sheriff got there. When he got there the bodies were on this side of the river, on the bank. They were chained together with a trace-chain around their necks, tied with wire, and a sack of rocks tied to the chain. The hands were tied. •One negro’s hands were tied. Another had one hand loose. Three hands were tied together. In his opinion these men were put in the water alive. He has mighty little ground on which to base that opinion. He bases it upon the conditions of the neck, of the tongue, and the general conditions'. At Allen’s bridge the water, he guesses, was something like ten feet deep in the main run of the stream, and three or four feet deep at the edges. The point where they discovered the bodies was pointed out to him. It was not in the main run of the river, but a little this side of the main run. The water was deep enough to drown them.</p> <p>B. L. Johnson, sheriff of Newton county, testified that he remembered the occasion when some bodies were found drowned at Allen’s bridge. It was in March of this year, between the 12th and 15th. Found two dead bodies, black- men. They had on overalls and were fully dressed. The bodies were tied together with a trace-chain around their necks. There was a sack of rocks tied to the trace-chain in the way of a sinker, attached to the chain between their necks. They were tied pretty close together. The sacks of rocks was tied with a wire rope,, and the rope tied to the chain. The sack of rocks would probably weigh seventy-five or a hundred pounds. At that place the water is pretty deep. Tied in that condition it would be easy to drown them there in the water. _ Their hands were tied together with wire. One of them had one hand tied and one loose. That place is in Newton county. At the coroner’s inquest Clyde Manning identified these bodies as those of Willie Preston and Lindsey Peterson. Manning made a statement in reference to those bodies, as to the death of those men, and how they came there. No one offered him any inducement to make these statements. Didn’t threaten him in any way. Nothing was said to him by which he could have apprehended any trouble to himself in any manner, before he made such statement. No offer of reward or hope of benefit was held out. lie said he, Mr. Williams and Charlie Chisholm brought them there, and threw them off the bridge alive into the water. He told me that Mr. John S. Williams and Charlie Chisholm was with him, that they came there in an automobile on Saturday. It seems it was about ten da}^ or two weeks before we discovered the bodies. Clyde told us about other bodies, and we wanted to see whether or not he told us the truth. We went to search for the other bodies, and found them as he told us. Some were buried, and some drowned. Some were buried on Mr. Williams’s place. He told us the names of those who were buried. Three, Johnnie Williams, Johnnie Green, and Will Givens, were buried in the pasture of Mr. John S. Williams. Fletcher Smith, he thinks, was the one in the corn-field. Manning pointed out the places where these three were buried. We found the graves, and in the graves found the bodies. We found Fletcher Smith in the corn-field. Corn had been planted where he was buried, and some had come up right over the body. They had plowed over the body.</p> <p>From there we went to a corn-field on another one of Mr. Williams’s places, and he pointed out another one. He was buried in a sort of new ground. They called this one Big John. He was buried right at a vacant house. Manning pointed that place out. We went and. found some more bodies in the water where he t'old us they were in the river. One was Charlie Chisholm at Waters bridge on the Alcovy river. The water in that river is from ten to thirty feet deep. Was not there when that body was pulled out, but saw it. It was tied with a chain, and my recollection is there was a sack of rocks tied to the negro around his neck. The sack of rocks would weigh something like seventy-five pounds. We discovered some other bodies the next day, Sunday. Found them in Alcovy river, at the same place we found Chisholm’s body. Those bodies were chained together. The chain was around their necks. Was not there when the bodies were first found. A big piece of iron was attached to the chain for a weight.</p> <p>No threats, inducements, or promises of reward or benefit were held out to Clyde Manning, nothing done in any way to get him to show us those bodies or identify them. He told us if we would take him he would show us. It was all voluntary, and of his own will, without any inducement or reward or hope of reward. No officer made any threats, and we offered him no inducement whatever. Found ’ the body in South river at Mann’s bridge about March 15th. That was directly after the discovery of the bodies at Allen’s bridge. It was tied around the neck with a chain and a sack of rocks attached to the chain. The sack of rocks would weigh something like seventy-five pounds. The water was of sufficient depth there to drown a man tied around the neck with a chain and a sack of rocks tied to it. That was two or three days after the bodies were found at Allen’s bridge. Clyde told us who it was. He said it was a negro by the name of "Foots.” His other name was Harry Price. Clyde said he was thrown in the same night, that Preston and Peterson were thrown in at Allen’s bridge. He said after they had thrown those two over at Allen’s bridge they carried this one over to the other river and put him in there. They went in Williams’s automobile, and Williams drove. It was near a mile from Allen’s bridge to Mann’s bridge. Allen’s bridge, it seemed to him, would be ten or twelve miles from Williams’s house, and Mann’s bridge would be about a mile further. Manning’s home, where he lived, was 150 yards from Williams’s house. From Williams’s house you can see the'pasture, which is some 200 yards from Manning’s house, and probably 300 or 350 yards from Williams’s house. The pasture is in front of Williams’s house to the side and back of it, and back of Clyde’s house. The body of Fletcher Smith was found on the hillside in the corn-field. I was told that that was John S. Williams’s land. Clyde Manning told us that Fletcher Smith was killed by John S. Williams, who shot him with a shotgun in the head. There was a wound in Fletcher Smith’s head. Clyde didn’t say he helped Williams kill Fletcher, but he helped bury him. Manning said that Charlie Chisholm killed Big John. He said he helped dig the hole to bury Big John, and helped throw the dirt on him after Chisholm killed him. He said he killed William Givens and Johnnie Green, but his understanding was that Charlie Chisholm killed Johnnie Williams. He said John S. Williams was with them when they killed him. They killed them by hitting them with an axe. We found Little Bit, John Brown, and Charlie Chisholm at Waters bridge, something like seven or eight miles from Williams’s place, near the county line bridge. Have been told that Newton County owns two thirds of this bridge and Jasper County one third. Mann’s bridge is a county-line bridge, and I understand half and half belongs to each county. Clyde showed us where “ Foots ” or Harry Price jumped off. He said it was on the upper side of the bridge; and that would be in Newton county.</p> <p>On cross-examination the sheriff testified as follows: I first saw Clyde Manning during the March term of our court. The grand jury had him subpoenaed in a case about the bodies that were found down about the river, and those of Lindsey Peterson, Will Preston, and Harry Price. Mr. Wismer and Mr. Chastain were present at two conversations with Clyde Manning when he was present. In those conversations Manning told us about these various details that I have testified about. He stated that John S. Williams was present on each occasion when the deaths occured. He stated that he participated in each of those deaths in the manner I have described, because he said he was afraid not to do it. He was afraid-Mr. Williams would kill him. That was a part of the conversations in which he made the admissions about which he had testified. He said he was willing to tell all about it. He told us the complete story, and his statement has been substantially the same ever since then. No one, no attorney or adviser, had seen Manning at that time, that I knew anything about. He always stated that he did it at the command of Mr. John S. Williams, and because he was afraid not to do it; he was afraid Mr. Williams would kill him. In those statements he said he did it through fear of death, if he did not obey the command of Mr. Williams.</p> <p>A. J. Wismer testified: I am special agent of the Department of Justice of the United States. Had occasion in the course of my duties to the government to go to the farm of John S. Williams. That was on February 19, this year. Went to Mr. Williams’s house to conduct an investigation for the government. Mr. Brown was with me. Went to Mr. John S. Williams’s farm to make an investigation as to alleged peonage conditions on his plantation. When we got there, Williams was not at home. We saw Clyde Manning, John Brown, and Johnnie Williams. We talked to Clyde Manning. Asked Clyde Manning whether he acted as guard over the hands on the place and locked them up at night, as had been reported to us, and asked whether he had gone and helped catch one Gus Chapman and return him to the place. He denied all about it to us. Don’t recollect having talked to a man by the name of Lindsey Peterson on that occasion. Brown talked to some of the negroes that I didn’t see. I didn’t take the names of ‘those from whom I got no information. I talked to John Brown and Johnnie Williams, at John S. Williams’s house before he came. Talked to some of them together, then separately. We had practically finished talking to them when Williams returned, and we began talking to him. Williams drove up and introduced himself. I told him my business, and told him I had been talking to those boys there, and had asked them about Gus Williams, and his having run away from his place, and he said, yes, he had; and he said that he and Clyde, and I forget the name of the other negro that went, went and caught him, brought him back, and when he made that statement Brown turned around to Clyde and said, “You just told me a lie, didn’t you.” I don’t believe Clyde answered one way or the other. We then got in Mr. Williams’s car and went back with him over to his other place. Clyde was not with us. We talked to some other negroes and to Mr. Williams’s three sons. Don’t recollect all the negroes we talked to, but we talked to Clyde Freeman. We talked to Williams about the killing of the negro, Blackstrap. I have since found out that his name was Nathaniel Wade. I am not sure that Clyde Manning was present, but Mr. Williams denied that there had ever been such killing there on his place. I asked him if any one else had been killed on the place, and he said there had been a negro killed on the place by the name of Will Napier, by his son, Huían, in self-defense. Mentioned to Mr. Williams other negroes, but he said that was the only killing that had ever taken place on his place. We talked to Clyde Manning about Blackstrap being killed, and he denied all about it. The only information I got while I was on the place that day, which had any bearing on the situation, was from Johnnie Williams. He was the only negro on the place that told me anything. I have seen Johnny Williams since I was there. Saw him over in the pasture, and he was dead. He had been buried at the edge of the creek. It was approximatety three weeks after I saw him and talked to him until I saw him there dead. Clyde Manning pointed out the place where Johnnie Williams was buried.</p> <p>Cross-examination: Have been present here each time that Clyde Manning has made admissions to the officers, as far as I know. The first time I heard his story was the time Sheriff Johnson referred to. I was present. Never talked to him outside of the presence of these officers. Can not give the exact date of that conversation, but it was when the March grand jury was in session. At that time Clyde admitted his partipation in those acts. He stated that after we had been down there conducting that investigation Mr. Williams had said to him, “ Clyde, we have got to do away with these negroes, or they are going up to Atlanta and break me and my boys’ necks.” Clyde stated that he told him he “ hated to do anything like that.'” Mr. Williams told him, “ Well, it is just jmur neck or theirs, whichever you think the most of.” Everytime he made those statements with respect to each one of those particular killings, it was always accompanied with the statement that he acted through fear of death at the hands of Mr. Williams.</p> <p>The evidence of Clyde Manning, as a witness for the State, on the trial of John S. Williams, was read to the jury. This evidence is set out substantially in the report of the case of Williams v. State, 152 Ga. 498 (110 S. E. 286), and need not be repeated here.</p> <p>Clyde Freeman testified for the defendant, substantially as follows: Had been living with Mr. John S. Williams, going on thirteen years. Kemembefs when the officers came down .to the farm. Saw Mr. Wismer there. He didn’t talk to me, but the other fellow with him did. Didn’t tell them anything. Was afraid to tell them anything: I was afraid of Mr. John Williams and his boys. Knew Peterson, Preston, and Price. Know when they left the place. John S. Williams came to the place that Saturday evening and told them he' would take them to the train that night or Sunday morning, but don’t know when he told them. Saw Peterson and Preston after they were dead. Never saw them any more after they left the place that Saturday afternoon. Williams came up there about dinner time and asked them if they wanted to go back home, and they all told them they wanted to go. Knew Blackstrap. He and “ Little Bit ” ran off one day. They caught “Little Bit,” and looked for Blackstrap two or three days before they found him. They brought him back. Never heard any of them say what became of them. Knew “ Iron J aw.” Mr. Leroy Williams killed him. We were over there by the little neck of the pond from the house when he shot him. They whipped him first. He had been running up some wire by the pasture, and Mr. Leroy told Charlie he was not having it done right, and he got a stick and hit ‘ Iron Jaw ” and told him he would kill him. “ Iron J aw ” told him “Well, kill me,” and he just says, “I will do it,” and he pulled his pistol and killed him. He shot him in the arm the first time, and shot him in the body the next time. After he shot him he told me to pull his clothes off. They then took “Iron Jaw” down to the river, down to the pond, and throwed him out there in the pond. Marvin Williams asked witness what the United States' officers' said to him, and he told him what they had asked him, and he said he had never told them anything. He then described the whippings of the employees by Williams and his sons. He had never seen anybody else killed on the place, except those named, but saw Will Napier after he was killed.</p> <p>Gus Chapman, for the defendant, testified that he worked on the Williams farm. He was locked up in the Atlanta station house. Huían Williams came up there and said to him, “ Go down and work for me. It will be the same as your home.” And he went down and worked for him. This was in April, 1920. When he got down there they locked him up. He ran away last July. He had gotten down before Shady dále, when he was overtaken by Mr. Williams and taken back. Williams took him into a wagon shelter, and made him pull down his clothes, and said he would kill him. He was whipped with a buggy trace. Williams said he would let him go this time, but if he ever ran away agaiii he would kill him. On Thursday after Thanksgiving he ran away again and had never been back. Knows about the killing of Blackstrap. Blackstrap had run away. He had been gone about a week, and was hired by a man down there who sent word that he had three negroes and to come down. He went down Sunday and got him and brought him back. They had him down over a barrel, whipping him, and he was begging them. He said kill me; and Huían gave Charlie Chisholm his gun and told him to shoot him, and Chisholm shot him through the head.</p> <p>Frank Dozier, for the defendant, testified: that he had worked on John S. Williams’s farm, worked for his son Leroy, and stayed in a little shack at night, locked up. He came from Macon. Was arrested in Macon for sitting down at the depot, and for vagrancy. Was fined $20.75, and Huían Williams paid that. When he paid his fine he brought him on home that night. Marvin Williams hit him-on the head three times with a stick, and left some scars. ILe got more whippings 'after that. They whipped him for just most anything. Knows about “ Iron J aw ” being killed. Didn’t see the shooting. He and Fletcher were cleaning up the engine, and heard a pistol fire three times. Leroy came to them and said he didn’t want to hear anything about that. Clyde Manning knew about this, and he knew about the killing of Iron Jaw.</p> <p>J ames Strickland, for the defendant, testified that he worked on the Williams place; got there by being in the stockade. Huían Williams got him out. They locked him up at nighttime. Was there when Long John ran away. The caught him and brought him back and whipped him. Marvin, Leroy, and Huían Williams and Clyde Manning and June Manning all whipped him. One night they beat Long John up. Clyde Freeman got some wire to build a hog pasture. Freeman and Long John went to get the wire. Long John was not able to tote it, and Freeman wanted to whip him, and he asked Leroy to stop whipping him and kill him. Leroy Williams asked if he wanted him to kill him sure enough, and he told him yes, and he shot him in the arm. Williams then asked him again if he wanted him to kill him. He nodded his head, and Williams then shot him in the side of the head. Williams told me and “ Foots ” to take the clothes off of him. T pulled off his shirt, and “Foots” took off his overalls.</p> <p>Emma Freeman testified for the defendant: Lived with Hu1 an "Williams the first of the year, this year. Llave been living there seven years. Kemember John Singleton when he was on the Williams farm. He got killed, but I don’t know how he got killed. He came to the house for dinner, ate dinner, and went back there to plow corn, and I never saw him any more. Saw his body the next week for the first time down there in the river, in the pond, we call it. What caused the discovery of the body when it came up, the buzzards were flying around there so thick,.and they found •it was the body of John.Singleton. "They said Charlie Chisholm and Leroy Williams killed him. Marvin Williams saw him kill him, and Charlie Chisholm said ho helped kill him, and then Marvin Williams said he killed him. Saw the body of Blackstrap after he was killed. Went down to the river and saw him lying in’ the river, when he had come to the top of the water. He had been sunk and come up again. Have seen men on the place whipped. Saw them whip Bill Givens and Peter. Saw them whip Big John. Have seen a heap of whippings. Saw Lula Benton after-she was hit. She was as bloody as she could be. John S. Williams hit her. Clyde Manning was not there all the time I have been telling about, but he was there when Lula got hit. He saw all the whippings down at Mr. Johnnie’s.</p> <p>Claude Freeman testified for the defendant: IL.e had been living with Huían Williams going on three years. Had been on the Williams farm for twelve years. Employees on Williams’s place were from the stockade. They have had as high as eighteen at a time. The employees were put in a house every night, and fastened up. There were bunks up by the side of the wall for the men to sleep in. Some slept in the bunks' and s.ome on the floor-I was on the place when John Singleton was killed. He was killed the last of July or the first of August, 1918. That night Luke Williams, the little boy of John S. Williams, asked Marvin Williams about John Singleton, and Marvin Williams told him, “liu-sh, he ran away.” When Clyde Freeman and Clyde Manning came up and asked where Singleton was, Marvin Williams told us that he had better not hear any word about John Singleton; if he did he would know where it came from. After that, saw the body of John Singleton down in the pond. That was eight or ten days after he was killed. Was down there, and buzzards were flying around so thick that Marvin Williams sent to the house to get some ropes and some wire, and they went down there and he tied it around his neck, got the boat, and this witness and he got a big rock, put it in the boat, dragged his body out in the water where it was deep, tied the rope to the rock, tied it to his body, and the body sank. Saw Will Napier after he was shot before he died. He was killed the first of the year by Huían Williams. That was in 1919. Knew when “Iron Jaw” was killed. His body is in that lake down there, called the pond. We picked up Will Napier’s body, carried it to the house, and put it in the bed. He was alive then. He died that night. Huían Williams said he shot him. Knew when Long John was killed. Leroy Williams whispered to Harry Price, that is, “ Foots,” tell the boys he did it, and when he went away Harrjr Price told the boys Leroy Williams killed him. Negroes on the place didn’t talk about these things. They wouldn’t talk about it. They were all scared to say anything about it. Whenever Huían Williams told them to do anything they would do it. He would threaten to shoot them, kill them or whip them. Remembers when Blackstrap was killed. He and “ Little Bit ” ran away. They caught “ Little Bit,” brought him back. A day or two after they caught “Little Bit” they caught Blackstrap and brought him back. They kept bloodhounds on the Williams place. They used these hounds to catch people who ran away. Clyde Manning knew the bloodhounds were there. He shot at hands by the direction of Mr. Williams and his sons.</p> <p>The defendant Manning made this statement. He described in detail the killing of various employees on the Williams farm.’ He gave the same account of the killings mentioned by Sheriff Johnson. He stated that his participation in these homicides was due to the fear of the defendant Williams; that he was afraid he would be killed if he disobeyed the commands of Williams in these matters. In reference to the killing of Will Preston, Lindsey Peterson, and Harry Price, he stated that the defendant Williams told him, “ I am going to do away with them boys to-night.” He further stated that Williams said to him, “ It ain’t going to do to let these boys go off from here.” Williams told him and Charlie Chisholm to tie them. He didn’t want to do it. He didn’t want to hurt them. He had to do it to save his own life. He didn’t leave Williams after these killings started, because Williams had a bloodhound.</p>

<p>Indictment for violating liquor law. Before Judge Shurley. Glascock superior court. September 26, 1921.</p>

<p>1. “ A decree of divorce in another State, in which the custody of the child is awarded to the father, is conclusive as between the parties to the decree, as to his right and fitness for such custody at that time, but is not conclusive for all time. In a subsequent proceeding by habeas corpus for the possessiqn of the child, between the parties to the decree, evidence as to the unfitness of the father will be confined to matters transpiring subsequently to the decree.”</p> <p>2. In habeas-corpus cases the trial judge has a wide discretion, within legal limits, as to the custody of minor children, the paramount consideration being the welfare and happiness of the minors.</p> <p>3. Under the evidence in the present case there was no abuse of discretion in awarding the minors to the mother.</p>

<p>Complaint for land. Before Judge Pendleton. Fulton superior court. October 24, 1921.</p> <p>The petition of Winnie James and others, including John Davis Pruitt, alleges that Davis Pruitt died a resident of Elbert County, Georgia, in-1857; that at the time of his death he was seized and possessed of a described tract of land, including the land herein sued for, in Fulton County; that said Davis Pruitt held under a grant from tbe State dated 1826; that he left surviving him as his sole and only heir a sister, Julia Pruitt; that she inherited the laird mentioned; that she left surviving her a sole heir and only child, Stephen Pruitt, and that petitioners are children and grandchildren of said Stephen; that there has never been any administration upon the estate of Davis Pruitt, but that “the purported administration on the estate of said Davis Pruitt, deceased, by John Davis Pruitt was illegal, fraudulent, and void, because at the time of the said purported administration the said John Davis Pruitt was an old, ignorant, and illiterate man, seventy-five years old, who could not read or write and did not authorize the appointment of himself as administrator, and he was totally incompetent to administer upon said estate, and he was improperly advised and imposed upon by Hulsey, when he was appointed administrator, and did not even know that he was being appointed when he was so appointed;” and “because of fraud in the procurement of said administration practiced on the court and on petitioners by said J. Davis Pruitt and those acting in concert with him, among other things, in that it was alleged in the application for appointment that the heirs at law of Davis Pruitt, deceased, had agreed that J. Davis Pruitt be appointed administrator, and requested his appointment, when in fact the heirs at law, petitioners herein, had no notice, either actual or constructive, of said application until long after the appointment; and when petitioners learned that said J. Davis Pruitt had been fraudulently appointed administrator of the estate of Davis Pruitt, deceased, they filed a petition with the ordinary of Fulton County, Ga., to have said administration set aside and declared null and void because of fraud.” The judgment of the court of ordinary is set out, and in it is found the following language :■ “ It appearing to the court that said letters of administration granted to said J. Davis Pruitt were obtained by fraud on the part of said J. Davis Pruitt, it is therefore ordered, adjudged, and decreed that said letters of administration granted to said J. Davis Pruitt on the estate of Davis Pruitt, deceased, be and the same are this day revoked and declared by this honorable court to be null and void, and that the said estate of Davis Pruitt, deceased, is declared to be without an administrator.” It does not appear that the court of ordinary of Fulton County granted letters of administration to J. Davis Pruitt, or in what county such letters of administration were obtained by him. It is alleged that every act of John Davis Pruitt as administrator was illegal and void, and that all suits brought by him as administrator for the recovery of the land were void and without authority; and further that “ all suits filed in Pulton County superior court by J. Davis Pruitt as administrator of the estate of Davis Pruitt, deceased, to recover land lot 143 of the 17th district of originally Henry, now Fulton County, Ga., or any part of said land lot, and especially suit No. 31411, were absolutely void and without authority in law, because the said J. Davis Pruitt procured his appointment by fraud upon the court and upon petitioners herein, which fact has been so adjudicated and which is evidenced by the order of the court of ordinary of Fulton County, Ga., setting aside administration and declaring it null and void because of fraud, which order is copied above.” It is alleged that Dávis Pruitt, deceased, “never executed a deed conveying said land to any one, nor has any one representing him ever conveyed said land to any one; and since the said Davis Pruitt died intestate, seized and possessed of said land, it descended to his heirs at law.” It is further alleged that the record of the grant from the State to Davis Pruitt, and the absence of any transfer of the same on the records in the office of Secretary of State was notice to all persons, so that any grantee would, as a matter of law, take with notice of the rights of the heirs at law of Davis Pruitt. No administrator was ever appointed to administer upon the estate of Julia Pruitt, deceased; and it is not alleged whether administration was had upon the estate of Stephen Pruitt.</p> <p>Anticipating the defenses which might be set up by the defendant the petition also alleged in effect that defendant’s original predecessor, in claiming title to said land, entered with full knowledge that he had no title and that the title was in Davis Pruitt, and had come into possession of the land with full knowledge of petitioners’ rights, title, and interest therein, and is not a bona fide purchaser without notice. It is not alleged in what manner the defendant acquired possession of the land sued for. There is no allegation that any of the petitioners or their predecessors in title since the death of Davis Pruitt in 1857 have been in possession of the land, or that any one holding adversely to the defendants has been in possession since 1857. The petition does not allege who were the parties to the suit brought in the court of ordinary of Fulton' County to set aside the judgment appointing J. Davis Pruitt as administrator of the estate of Davis Pruitt, deceased; and therefore it does not appear that this defendant was a party to that proceeding, although information on that subject was called for by special- demurrer.</p> <p>The defendant filed general and special demurrers to the petition. Among the grounds of special demurrer were: (a) There is no allegation in the petition as to why defendant is said to be illegally or fraudulently in possession of the property sued for, and there is no allegation going to show that the defendant is not a bona fide purchaser or that he came into possession with knowledge of any of petitioners’ rights, (b) That the allegations in regard to notice by reason of the facts of record in the office of the Secretary of State are an erroneous conclusion of law, and that the facts alleged are not such notice to defendant as would prevent her from becoming a bona fide purchaser without notice, (c) That all allegations in regard to notice on the part of the defendant were mere conclusions, without the statement of facts upon which they were based, and were insufficient to charge the defendant. (d) That the proceedings in the court of ordinary upon which the judgment revoking letters of administration of J. Davis Pruitt was based are not sufficiently set out, and the allegation that no act of said administrator is binding upon petitioners and that every act of said administrator was illegal and void and absolutely without any binding force or effect upon the rights of plaintiff is an incorrect legal conclusion; that no facts are shown, sufficient to indicate that his acts as administrator were illegal and void. (e) That the allegation in regard to the suits filed in Fulton superior court by J. Davis Pruitt, as administrator of the estate of Davis Pruitt, were insufficient, because the same are not named and described. The court sustained the general demurrer and all the special demurrers, and the plaintiffs excepted.</p>

<p>Indictment for murder. Before Judge Kent. Laurens superior court. January 25, 1922.</p>

<p>Equitable petition. Before Judge Eve. Tift superior court. July 23, 1921.</p>

<p>Indictment for murder. Before Judge Humphries. Fulton superior court. September 24, 1921.</p>

<p>1. An exception to admission of testimony, stating that the movant objected to it, but not stating any ground of objection that was presented ■when it was offered, though alleging that the court erred in admitting it, because it had the effect of prejudicing the minds of the jury against the movant, is without merit.</p> <p>2. The evidence for the State making a clear ease of murder, and nothing therein tending to show voluntary manslaughter, and the statement of the accused to the jury tending to show that he acted in self-defense, an instruction excluding from consideration the law of manslaughter was not erroneous as an expression or intimation that the accused had committed a crime greater than manslaughter, or because under the evidence as a whole the jury might have rendered a verdict of voluntary manslaughter.</p> <p>3. An instruction in substantial accord with the Penal Code, § 1036, was not error as depriving the jury of a right to believe a part of the statement of the accused, if they did not believe it as a whole.</p> <p>4. Alleged newly discovered evidence unsupported by the required affidavits of the movant and his counsel (Civil Code, §§ 60S5, 6086) is .no ground for a new trial.</p> <p>5. That the accused in his statement to the jury did not include all that he wished to tell them, but thought he would have more time later, is no-ground for new trial; no request having been presented to allow him to make an additional statement.</p> <p>6. Where counsel appointed by the court did not request more time to prepare the defense for trial, it is no cause for a new trial that they did not have proper time to study and prepare the case,-and that the accused and his people were poor and ignorant and could not assist as they should in the short time they had.</p>

Indictment for murder. Before Judge Summerall. Bacon superior court. October 6, 1921. J. E. Dedge, Floyd Dedge, and D. Stanford were jointly indicted for tbe murder, on July 10, 1920, of C. J. Meddows, in the county of Bacon. The defendants were tried separately; and Stanford was found guilty, with a recommendation. His motion for a new trial was overruled, and he assigns error on that judgment.

Complaint for land. Before Judge Hammond. Richmond superior court. June 16, 1921. Martha D. Hopkins, Ella Hopkins, Rebecca H. Jackson, and Edward Hopkins brought a complaint for the possession of a certain tract of land in the City of Augusta, against Mary Eugenia Martin.

Equitable petition. Before Judge Meldrim. Chatham superior court. May 4, 1921.

<p>Indictment for murder. Before Judge Meldrim. Chatham superior-court. June 21, 1921.</p>

<p>Indictment for rape. Before Judge J. B. Jones. White superior court. July 9, 1921.</p>

Equitable petition. Before Judge J. B. Jones. Hall superior court. July 9, 1921. L. D. Sheridan filed his petition for cancellation of certain deeds against his wife, Anna C. Sheridan, and made this case: He and the defendant intermarried on June 11, 1916, and lived together until February, 1920. At the time of his marriage he was about 72 years of age, and was weak and feeble in mind and body.

<p>Attachment for contempt. Before Judge Littlejohn. Macon superior e'ourt. August 1, 1921.</p>

Action for specific performance. Before Judge Thomas. Colquitt superior court. July 20, 1921. Murphy Hardware Company filed a petition against Bhode Island Insurance Company, praying for specific performance of a contract to insure against the loss by fire of a number of bales of cotton stored in a warehouse, and for a judgment in the amount of the value of the cotton so destroyed.

Cancellation, etc. Before Judge Shurley. Glascock superior court. September 31, 1931.

Indictment for murder. Before Judge Tarver. Murray superior court. October 29, 1921. Verner Vincent was indicted for the murder of Smith Tread-well. He was convicted, and brought his case to this court, assigning error on the judgment of the lower court overruling his motion for new trial. On May 26, 1920, Miss Ora Bell Jones, Miss Thelma Treadwell, and Drs.

<p>Injunction, etc. Before Judge R. C. Bell. Calhoun superior court. November 26, 1921.</p>

<p>Equitable petition. Before Judge Hutcheson. Campbell superior court. November 1, 1921.</p> <p>J. C. Kite filed a petition against T. J. Vickery and his wife, Mrs. L. M. Vickery, alleging in substance as follows: On September 27, 1916, T. J. Vickery executed to A. E. Copeland and J. W. Shuford a bond for title to described property. On November 18, 1918, Copeland and Shuford transferred said bond to petitioner. The consideration for the transfer was paid to Copeland and Shuford on November 17, 1917, but owing to the absence of Shuford the transfer was not actually signed until the date named above. Vickery, on executing the bond to Copeland and Shuford, delivered constructive possession of the property and rented the same by giving his note for the sum of $200 as rent for the year 1917, and paid said note. Before taking the transfer of 'the bond petitioner went upon the place and stated to Vickery, in the presence and hearing of Mrs. Vickery, that he contemplated purchasing the bond for title to the place; and Vickery said that Copeland and Shuford would fail to pay for the place, and, if so, he would sell the place to Kite for a less sum; but neither Vickery nor his wife made any objection to petitioner purchasing from Copeland and Shuford, and Mrs. Vickery made no claim to the property. On November 15, 1917, the date when the first purchase-money note fell due, petitioner tendered to Vickery the full amount thereof, but Vickery refused to accept it, and refused to carry out the terms of the bond for title. This tender was made after the trade had been made with Copeland and Shuford for the transfer of the bond for title, but before the same had actually been signed. Copeland, one of the vendees named in the bond for title, went with petitioner to Vickery when the tender of the amount due was made to Vickery. Petitioner notified Vickery that the latter would be allowed to remain in possession as a tenant, and that petitioner would demand two hundred dollars rent for the year 1918. Vickery remained in possession, and is due petitioner said sum. In the fall of the year 1918 petitioner notified Vickery that if he remained on the place during the year 1919 he would charge him as rent five bales of cotton; and Vickery did remain on said place during the year 1919, and is due your petitioner said rent. In the fall of the year 1919 petitioner took out a distress warrant against Vickery for said rent, to which Vickery filed a counter-affidavit, and the issue thereon is still pending in court. Vickery remained on the premises during the year 1920, without making any new contract, and is due petitioner five bales of cotton for that year; and it was agreed by counsel that the issue made on the distress warrant be merged and tried together with this case.</p> <p>Petitioner further alleges, that while Mrs. Vickery had full knowledge of the sale of the land to Copeland and Shuford and the transfer of the bond for title, nevertheless she now claims that on August 8, 1915, her husband conveyed the land to her for a consideration of $500. On December 8, 1917, such a conveyance was placed on the records. Petitioner alleges that Mrs. Vickery is estopped from claiming the land, because she saw and permitted him to purchase it without disclosing her secret equity; and for the further reason that, as petitioner believes, the deed made by Vickery to his wife was dated back and made for the purpose of hindering and delaying petitioner and preventing him from ob-taming specific performance of the contract. Mrs. Vickery also, on December 28, 1917, executed to J. M. Hogan a mortgage on the land, and had the same recorded. The bond for title attached to' the petition is in the usual form, and the consideration named therein is $3125, to be paid as follows: $325 cash, the receipt whereof is acknowledged, and nine consecutive annual payments of $300 each on the 15th day of November, 1917, and each year thereafter until the 15th day of November, 1927, when $100 is to be paid, with interest at the rate of eight per cent. The only reference to the failure on the part of the vendees to pay the purchase-money is as follows: “ On failure of the said parties of the second part to pay the said sums of money or either of them at the time specified, then the said obligation to be void and of no effect.” The prayers of the petition are: (1) That it be decreed that T. J. Vickery has title to the property, and that petitioner as holder of the bond is entitled to a deed from said Vickery upon pajunent of the purchase-money named therein. (2) For a judgment against Vickery for the rent alleged to be due, and that said sums recovered as rent be applied to the purchase-money due on said notes set out in the bond for title. (3) That Vickery be decreed to be petitioner’s tenant and accountable to him for rents; and for general relief -and process.</p> <p>To the petition the defendants interposed the following demurrer: “that said petition sets forth no cause of action and is insufficient in law.” The answer admits the execution of the bond for title to Copeland and Shuford, but it denies that the entire $325 acknowledged as having been received in cash was actually paid, and alleges that only the sum of $182 was paid in cash on the execution of the bond, and that the vendees promised but failed to pay the balance of $143. Other material allegations of the petition were denied. The case proceeded to trial; and after the introduction of evidence by the plaintiff, substantially proving the case as laid in the petition, the court granted a nonsuit. The plaintiff 7excepted to this judgment; and the defendants excepted to the judgment overruling the general demurrer.</p>

<p>Indictment for mnrder. Before Judge Searcy. Pike superior court. December 2, 1921.</p>

Complaint. Before Judge Blair. Forsyth superior court. November 3, 1921. C. C. Rucker filed a petition against G. M. Hooper and Malinda Worley, alleging that the defendants were jointly indebted to.him in the sum of $1961.42 principal, together with interest and attorney’s fees, on a note given for the purchase of land.

Indictment for murder. Before Judge Gower. Dooly superior court. November 17, 1921. Buddie Wall and nineteen other negroes were jointly indicted for the murder of Robert Davis, a white man, in Dooly county, on May 17, 1921. The evidence was as follows: On May 17, 1921, W. D. Cunningham, the marshal of Byromville, went to the home of Fate Chapman, a negro, to collect a tax fi. fa. for $1.75, in favor of that town, or, in default of its payment, to levy the same.

<p>Description, and counsel’s names, as in case next preceding.</p>

<p>Indictment for murder. Before Judge Sheppard. Tattnall superior court. September 3, 1921.</p>

<p>Same description and counsel’s names as in last two cases.</p>

<p>1. A judgment of a trial court granting or refusing an injunction, where the same depends upon a question of law, is, upon its affirmance by the Supreme Court, a final adjudication of such question.</p> <p>2. The rulings of tlie Supreme Court, upon the interlocutory order of the trial judge granting an injunction, become the law of the case as to the particular case.</p> <p>3. An affirmance by the Supreme Court of the order of the lower court granting a temporary injunction is a ruling upon all questions of law involved, though the legal contentions may not have been specifically enumerated or mentioned in the opinion of the court.</p>

Mandamus. Before Judge Pendleton. Fulton superior court. August 27, 1921. The City of Atlanta brought a petition for mandamus against the Georgia Bailway and Power Company, now.the plaintiff in error.

Indictment for murder. Before Judge Littlejohn. Macon superior court. June 11, 1921.

<p>1. The evidence as set out in the first division of the opinion is not inadmissble under § 5860 of the Civil Code of 1910, which provides that no attorney shall be competent or compellable to testify in any court in this State for or against his client to any matter or thing knowledge of which he may have acquired from his client by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney, etc.</p> <p>2. Under the act of 1918 (Acts 1918, p. 136), it was not error to decline to allow movants to introduce in evidence the -original order of the superior court dissolving the Dixie Paper and Box Company as a corporation, more than four months before the filing of the plaintiff’s suit.</p> <p>3. Grounds of a motion for new trial which are expressly abandoned will not be considered by this court.</p> <p>4. Where on the trial of a case a motion to nonsuit is overruled, and the exception to such ruling is not preserved in the lower court, such ground of exception can not he entertained by the ¡Supreme Court in a motion for new trial.</p> <p>5. The charge complained of, to the effect that oven though there was a bona fide indebtedness due by the mortgagor to the mortgagee, if the mortgage was made with intent to hinder, delay, or defraud the creditors'of the mortgagor, such mortgage would be void, is not erroneous.</p> <p>6. The charges set out in the sixth division of the opinion are not erroneous for any reason assigned.</p> <p>7. Other grounds of the motion for new trial, not specifically dealt with, are without merit.</p> <p>8. The verdict was supported by evidence, and the court did not err in refusing a new trial.</p>

<p>Equitable petition. Before Judge Eortson. Banks superior court. August 5, 1921.</p> <p>R. G. Wallace, as administrator of E. P. Mize, applied to the court of ordinary of Banks county for an order to sell “a tract or parcel of land situated, lying, and being in Bushville district, said county (208th district G. M.), consisting of 108-3/5 acres, more or less, being a part of the place whereon E. P. Mize lived at the time of his death, and being that tract conveyed to E. P. Mize by deed dated November 30, 1883, from W. S. Mize, recorded in deed book C, page 651, in the office of the clerk of the superior court ” of said countjq to which reference is made for its full description. L. B. Mize thereupon filed his claim to said land, setting up that the same was not the property of the estate of said E. P. Mize, but that he was the owner of a one-half undivided interest in said land. This claim was returned to the superior court of Banks county for trial. Thereupon R. G. Wallace as such administrator, Mrs. E. P. Mize, Mary Mize, Willie Mize, Ruth Mize, Lonnie Mize, and Paul Mize, the latter by their next friend Mrs. E. P. Mize, filed their equitable petition in Banks superior court, in which they alleged: that L. B. Mize was a resident of Clarke county, Georgia; that R. G. Wallace, the administrator of E. P. Mize, was a resident- of Banks county; that Wallace was the duly appointed administrator of E. P. Mize, having been appointed such by the ordinary of Banks county; that the estate of E. P. Mize, deceased, consists of 208 acres, more or less, of land in Banks county, Georgia, in Bushville district, known as the E. P. Mize home place; that said administrator had applied for leave to sell the lands of said estate; that before an order was granted for that purpose by the ordinary of said county, said L. B. Mize, on February 27, 1919, filed a claim to an undivided one-half interest in 108-3/5 acres of said land; that the claim had been transmitted to the superior court of Banks county for trial; that on account of the location of the said land it would be impracticable and detrimental to the interest of said estate to sell the land not included in the claim without selling that included in said claim; that the debts of the estate amounted to the sum of $2500, as shown by a schedule attached to the petition; that the interest on said indebtedness amounts annually to $200, or other large sum, that the buildings on said estate are annually depreciating in value; that the wife and children of said F. P. Mize have had one year’s support set apart to them; that they consumed the same in the year for which it was set apart, and they are now in need of support, which they can not obtain on account of the debts due by the estate; that it is necessary to sell said lands, in order that the debts may be paid, and for the purpose of distribution among the heirs; that L. B. Mize is an heir at law of F. P. Mize, and as such would be entitled to a distributive share in his estate; that on account of the present prevailing high prices of real estate, and the present high prices of cotton, it would be to the best interest of said estate that said lands be sold as early as practicable. Petitioners prayed that the court pass an order authorizing said administrator to sell all the 208 acres of land claimed by the estate, including the one-half undivided interest in the 108-3/5 acres claimed by L. B. Mize, that the administrator be required by said order to deposit in the Banks County Bank, or such other bank as the court may select, the amount of money arising from the sale of the undivided one-half interest in said 108-3/5 acres, subject to the final decision of the court on the claim filed by L. B. Mize. They prayed for such other relief as was meet and proper.</p> <p>Hon. Andrew J. Cobb, judge of the Western judicial circuit, passed a consent order, authorizing and directing the administrator to sell said land, his deeds to vest as good title in the purchaser as if no claim had been filed, that one half of the proceeds of the 108-3/5 acres stand in the place of the land, and be kept subject to the future orders of the’ court, to be disposed of by the final judgment in the claim case.</p> <p>L. B. Mize answered the petition, admitting the substantial allegations thereof. He alleged that the 108-3/5 acres of land belonged to F. P. Mize and himself jointly, and the other 100 acres belonged to F. P. Mize; that he was an heir at law of F. P. Mize, and as such entitled to receive his share of the estate; that the 108-3/5 acres of land was purchased with the money which his mother inherited from her father’s estate; that while the title to said 108-3/5 acres was taken in the name of F. P. Mize, the land did, as a matter of fact, belong to the wife of F. P. Mize, deceased, who was his mother; and that on the death of his mother she left surviving her husband and himself, her only child, a§ her sole heirs at law, and as such he was entitled to one half of said land.</p> <p>This consolidated case came on for trial at the March term, 1921, in Banks superior court. On the trial it was admitted that the 108-3/5 acres brought, when sold, $5220.40; and that L. B. Mize would be entitled to one half thereof, if his claim to a half interest in said land was sustained.</p> <p>Mrs. M. T. Anthony, for claimant, testified that she knew F. P. Mize during his life; knew his first wife, who was an Erskin. Was there when the first Mrs. Mize was sick. She had been very low, but had gotten up and was able to knock around in the house. F. P. Mize at that time was living there on that place where he finally died. It was between 25 and 28 years ago. I was there when there was a conversation between the first Mrs. Mize and her husband, F. P. Mize, about this piece of property. She said, “ Martha, I don’t believe I am going to live long. I am going to tell you, in the presence of Bud, I want Luther to have half of my individual property, and I want Bud to have the other half as long as he lives; and if Luther outlives his father I want Luther to have it.” Bud was her husband. The property she spoke of was the land she said her money was in, where she was living. That was where they were living when she was talking to me. In that conversation F. P. Mize, or Bud Mize, told her he thought she was right in dividing it up as she said. He said, “ Sue, I think' you are right in dividing it up like you are.” Mrs. Sue Mize’s money paid for the land. She lived but a year or probably two years after. In that conversation she said the money came from her father that went into that land. She said her money went into the land right where they were living. She said, “ Martha, my money went to pay for this land,.here.” He owned and had possession of more land besides the 108-3/5 acres. Knew Luther Mize. I recall he was somewhere about twenty years old at the time. F. P. Mize died four years ago, I recall.</p> <p>Mrs. S. E. Mize, for claimant, testified: Am E. P. Mize’s sister in law. Luther Mize is my nephew. My husband and E. P. Mize were brothers. My husband had a tract on this side, and adjoined this land. ,M. C. Mize was my husband. E. P. Mize’s first wife was Sue. The last time I was there I said, “ Why don’t you get some chairs ? ” She said, “ I have not got the money. All my money has gone on this farm, and I have not got a penny to buy them with.” She said her money went into the farm, and her husband was sitting there. Many a time she spoke of it when I was there, and said it was her place, and she wanted Luther to have half of it, and Bud the other half, but if Bud died first she wanted Luther to have it all. Did not exactly hear Bud Mize make any remark about whose money paid for that land. But it was right there altogether. We were sitting in the room, and she told me her money had gone to pay for that land. Bud Mize was there, turned around and just smiled. When Mrs. Sue Mize was talking about how the farm was paid for, she said the money came from her father’s estate, Mr. Erskin. Think she said between four and five hundred dollars, or about four hundred dollars, may be a little more. The place cost three hundred and twenty-five dollars, I think. This conversation was in 1882. Bud Mize did not have any property along about then at all. They were married when I moved there, but they had no property, because that piece of land was divided between the brothers, and neither one had paid a penny on it, only what Bud had gotten from Sue; and Mr. Mize never paid a penny on his, because the man was not making anjdhing. My husband did not pay a penny on his. He lost his. That strip of land was bought from old Grandpa Mize. His father bought the land and divided it between the two brothers, and Bud took on that side. My husband did not pay for his. Bud paid for his. Did not see it paid. I know he did pay for it. I know of my own knowledge that Sue paid for that land.</p> <p>Mrs. Luther Mize, for claimant, testified: Am Luther Mize’s wife. His father has been dead four years. Heard a conversation between E. P. Mize and my husband about the 108 acres of land in this county. About 1915 Mr. Mize came down to our house one Saturday afternoon and stayed until Monday morning. He and my husband talked a whole lot about this business. He said he wanted to settle with him on this Erskin money, but he said, “ I am not in financial shape to do anything like that”—it would tear him all to pieces if my husband demanded it and pushed on him for a settlement right then. He said, " If you will wait on me, probably I can do that later, and I will settle with you for this money.” He said, “ I know that your mother and you are the only heirs to this Erskin money that went into this 108 acres of land.” He said that that night or the afternoon he was down there. The 108 acres of land was the home place. Heard him talk numbers of times about the home place. That was where he lived at the time of his death. They bought more land. Think they really bought more before me and Luther were married, and added to this 108 acres. Mr. Mize said, “ If you cut this 108 acres up ” the way Sue said for him to do it, it' would tear his home place all to pieces. He said he was in bad shape and could not do that right then, and said, “ I don’t want you to push on me right now for a settlement, for it will certainly tear me up.” He said Sue always requested of him that she wanted Luther to have this home place. Said it was her money in this, and said she always requested it of him. E. P. Mize lived on this place when we were married, and he lived there until his death. Luther did not live there after we were married. He did not cultivate any part of it. He did not have any tenant on any part of this land. After he married, E. P. Mize cultivated it, and he said all the time he was going to settle with Luther, because Luther had this Erskin money in this 108 acres of land. But he said financially right then he was not able to do it. Heard him tell Luther that in 1915. Occasionally they would get to talking about it, and he would say he was going to balance this thing. Heard him talk about it soon after we were married. He said all the while he aimed to give Luther his part of it, because that was the request of his wife, because Luther was the only heir and she wanted this child to have his part of her estate.</p> <p>Warren Wilson, for claimant, testified: Knew Bud Mize in his lifetime. Was his brother-in-law. His first wife’s name was Susan Erskin. Her father was James Erskin. Bud Djmr administered on James Erskin’s estate. Knew where Bud Mize and his wife lived about 1881, ’82, or ’83, along there. He lived at the place they bought there after they were married. They lived at the Erskin place before with the old man, a little place near there, and then moved to the place they bought. They bought something like one hundred acres. William Mize was not the husband of Mrs. S. E. Mize. He was Bud Mize’s father. Bud Mize lived on the place he bought until his death. My wife’s and his wife’s father’s estate was wound up about 1880, somewhere along there. It has been something like forty years. Each one of the heirs received from that estate about four or five hundred dollars. I know what was done with the money of Mrs. Sue Mize. They bought some land there, the land you were speaking about. Bud Mize had one child by his first wife; that was Luther, the claimant in this case. Don’t think along about the time they bought this tract of land Bud Mize had any money or property of his own. He was young. — Cross-examination: Bud Mize along there then was about twenty-two or twenty-three, when he married. He married his first wife, somewhere along about ’79 or ’80. He was an able-bodied, stout man. He was raised to work. He was a farmer and lived there with his father. He raised crops, I suppose. I can say he didn’t have any means. He got something for his labor during those years. He hadn’t labored much for himself. They didn’t make a great deal, all of them; very poor folks. I testified that that land was bought with his wife’s money. I only know that from circumstances. Couldn’t swear to it. That is a conclusion of mine from the circumstances. Can’t say of my own knowledge that her money paid for the land. They began to live on this land'about 1882 or 1883. Mr. Bud Mize lived on then until his death. He cultivated it. Luther’ Mize is near forty years old, not far from that. Before they bought this land Bud Mize had been working and cultivating the land for a number of years. Don’t know how much he made from his work and crops, but he did not make a great deal. He had no help at the time, only had a horse, and they worked like everybody else starting out, and did not have much to start with.</p> <p>W. J. Smallwood, for claimant, testified: In 1910, as well as 1 remember, I lived on Bud Mize’s land. Heard a conversation between Bud Mize and Luther Mize. Luther asked Mr. Mize about a settlement of some money he had some way or another in the place, and he asked him could he pay him what he owed, and he told him, no he eonld not; and Luther said to Mr. Mize, “I am obliged to have my monej1',” and went on back home. Mr. Mize was • scared Luther was going to sue him, and he asked me to go over and see Luther and see if I could not get.him not to do anything of the kind. I told Luther about it. He told me to tell him he was not able to pay it, and if he paid it he would have to borrow the money and pay it. Luther said, “ If Pa is too poor to pay the money, I will let him alone.” Went back and reported the conversation to Mize. Mr Mize said, “ Luther has this money in this place,” and. my recollection is that it was four or five hundred dollars in the place. He said, “ If Luther will treat me that way, I will try to get the money up as-quickly as I can.” Bud Mize was in possession of this land at the time. I rented the land from him and tended a crop on that place. I suppose I had known the land before that something like twenty or twenty-five years. All that time Bud Mize was in possession of it and cultivating what he did not have rented out. I said Luther Mize wanted Bud Mize to pay him what his mother had in the place. I suppose he wanted that paid in money. He did not say exactly, but he wanted a settlement, and Bud Mize was afraid he would sue him; and he sent word by me to Luther to persuade him hot to do anything, that he was not able to pay him at that time. Luther lived three quarters or a mile from Bud Mize’s place. He bought a little place over there a mile or three quarters of a mile from Mr. Mize’s.</p> <p>Defendant and claimant introduced voucher No. 5, in annual-return book No. 3, page 538, of the ordinary’s records, as follows: “ Received of R. J. Dyer, administrator of J ames Erskin, deceased, $50.00, as a part of my distributive share in said estate. Dated January 23, 1880. [Signed] E. P. Mize.” Also, voucher No. 4, in annual-return book No. 4, page 177, ordinary’s records, as follows: “Received' of R. J. Dyer, administrator of James Erskin, deceased, $60.00, in part of my share as legatee. This November 2, 1880. [Signed] E. P. Mize.” Also, voucher No. 11, on page 178 of the same book, reads as follows: “ Received of R. J. Dyer, administrator of James Erskin, deceased, $45.00, as a part of my distributive share in the estate of James Erskin deceased. Dated March 24, 1881. [Signed] E. P. Mize.” Also, voucher No. 12, as follows: “Received of R. J. Dyer, administrator of James Erskin; deceased, $30.00, as a part of my distributive share in said estate. This April 14, 1881. [Signed] F. P. Mize,” • Also, voucher No. 13, “Eeceived of E. J. Dyer, administrator of James Erskin, deceased, $30.00, the same being part of my distributive share as legatee. This January 7, 1881. [Signed] F. P. Mize.” Also, voucher No. 14, “ Eeceived of E. J. Dyer, administrator of James Erskin, deceased, $31.00, the same being part of my distributive share in said estate. This Nov. 1, 1881. [Signed] F. P. Mize.” Also, voucher No. 5, on page 325 of the same book, as follows: “ Eeceived of E. J. Dyer, administrator of James Erskin, deceased, $93.50, as a part of my distributive share in said estate as a legatee. This May 1, 1883. [Signed] F. P. Mize.” A portion of the annual return of E. J. Dyer, administrator, found in annual-return book 5, page 569, in the ordinary’s office of said county, showing the total distributive share of each legatee to be $456.63; and deed from W. J. Mize to F. P. Mize, dated November 30, 1883, consideration $373, wherein the grantor conveys to the grantee all that tract or parcel of land situated, lying, and being in the county of Banks on the waters of Hudson river, adjoining the lands of Thomas Mize, Cape Oliver, and others, containing 108-3/5 acres, more or less. This deed was recorded December 3, 1883.</p> <p>Mrs. F. P. Mize testified for the plaintiffs: Am the wife of F. P. Mize. We were married in 1901. Know the 108 acres of land described in deed from W. J. Mize to F. P. Mize. My husband died last January four years ago. From the time we were married until he died we lived on those 108 acres, there at the old home. He controlled the land. He had hands working on it. During the time he was in possession he said he owned it. I have five children by F. P. Mize, Mary 17, Willie 14, Euth 12, Louise 10; and Paul 8.</p> <p>E. G. Wallace testified for plaintiffs: Am the administrator of F. P. Mize. He died in 1917. I know Luther Mize. He is somewhere near forty years old.</p> <p>F. M. Sanders testified for plaintiffs: Mr. Luther Mize lives somewhere near Athens. Know where he lived before he moved to Athens, in this county. I did know how he got the place, but don’t remember now.</p> <p>The jury returned a verdict in favor of the claimant. The plaintiffs moved for a new trial, on the general grounds, which was amended at the hearing. The court overruled'the motion for new trial, and this is the error assigned.</p>

Certiorari; from Court of Appeals. 27 Ga. App. 396 (109 S. E. 174). ' Griffian brought a suit against Terry Shipbuilding Corporation, for the recovery of damages on account of personal injuries.

<p>Equitable petition. Before Judge M. D. Jones. Bibb superior court. May 21, 1921.</p>

<p>Indictment for trespass. Before Judge Hutcheson. Campbell superior court. May 10, 1922.</p>

<p>Equitable petition; intervention. Before Judge Hodges. Elbert superior court. June 10, 1931.</p>

Injunction. Before Judge Wright.- Chattooga superior court. August 1, 1921.

<p>Ejectment. Before Judge Worrill. Clay superior court. July 15, 1921.</p>

<p>1. Declarations of a testatrix made after the execution of her will, dated May 4, 1916, she having been adjudged a lunatic on February 14, 1917, and committed to the insane asylum, where she was confined until her death on July 6, 1918, to the effect that she had not made a will, were admissible in evidence on, the probate of her will, to which a caveat was filed, embracing, among other' grounds, that she was not mentally capable of making a will, and that the same had been procured by the undue influence of her nominated executor, to whom a legacy was therein given, not as evidence of the fact so stated, nor as evidence of any undue influence exerted over her by the executor, but solely for the purpose of showing the state of her mind when the instalment was executed, and upon the question whether she then had sufficient capacity to make a will, or was then in such a mental condition as to be unduly influenced by another.</p> <p>2. In cases of doubt as to the admissibility of evidence, the current of authority in this State is to admit it and leave its weight and effect to be determined by the jury.</p> <p>3. The slight error in rejecting this evidence may be regarded as immaterial, where the verdict is undoubtedly right, or where the result ought fairly to be the same if the rejected evidence had been admitted; and for this reason á new trial is not granted.</p>

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

<p>Indictment for rape. Before Judge Thomas. Thomas superior court. October 25, 1921.</p>

<p>Equitable petition. Before Judge Munro. Taylor superior court. March 28, 1921.</p>

<p>Specific performance. Before Judge Meldrim. Chatham superior court. July 29, 1921.</p> <p>Thomas Hilton brought a petition for specific performance against the Prudential Investment and Development Company, a corporation of Chatham County, to compel specific performance of a written contract for the sale of certain real estate in Savannah. The case was tried by agreement by the trial judge upon the petition and answer, without the intervention of a jury. The allegations of the petition were all admitted, except one; and that one was the contention of the plaintiff that the title involved in the case was “ good and marketable.” The following facts alleged in the petition are admitted: J oseph P: Gilson died in Januarv, 1913, leaving a will which was duly probated in the court of ordinary of Chatham County, on March 3, 1913. Testator’s widow and executrix, Lueinia Weeks Gilson, administered the estate, and was regularly discharged on July 6, 1914. The widow was the sole heir at law of her husband, as there were no children or representatives of children. Joseph P. Gilson died seized and possessed of the property in controversy. A copy of the will of Joseph P. Gilson was attached to the petition. By the second item of his will the testator devises and bequeaths to his wife, Lueinia Weeks Gilson, all of his estate and property, real, personal, and mixed, of every name, kind, and nature and wheresoever situated, “ to have and to hold the same for and during her natural life; giving, devising, and bequeathing unto her full power and right to sell and dispose of, use, and appropriate the same, or any part thereof, to her own use and benefit, as fully as she could do if she were the sole and unconditional owner thereof, excepting only the right of disposal by her last will and testament.” The third item provides: “ If upon the death of my said wife any part or portion of my said estate and property remains undisposed of by her, then and in that case I give, devise, and bequeath. ” certain specific legacies to his coachman, cook, and to certain nephews and nieces. By deed dated July 18, 1913, Mrs. Gilson, the widow, individually and “as executrix of the last will and testament of Joseph P; Gilson, deceased,” conveyed the property in controversy to Joseph Hilton of Nyack, New York. This deed is in consideration of $10,000, without warranty, to the party of the second part, “ his heirs and assigns forever.” The deed was duly executed, and was recorded July 28, 1913. The deed recites that Mrs. Gilson is the widow of Joseph P. Gilson, and that he died a resident of the State of Georgia, seized and possessed of the premises, and that the same passed to her “by virtue of the provisions of the last will and testament of said- Joseph P. Gilson,” etc. The deed also has the following clause: “ It being the intention and purpose of this instrument to convey to and vest in the said party of the second part all the right, title, and interest of the party of the first part in and to the premises and appurtenances herein above described.” The answer further admits that the consideration paid by Joseph' Hilton was a full and fair consideration for a conveyance in fee of the property; and that on June 20, 1913, the appraisers appointed by the ordinary of Chatham County,' to appraise the estate of Joseph P. Gilson, appraised this property at $10,000; and in her verified return filed October 23, 1913, the executrix charged her-, self with the said property at this valuation, and credited it to the estate at this valuation. At the time of the execution of the1 deed Lucinia Weeks Gilson was, to the knowledge of Joseph Hilton, seventy years of age, bedridden, in a very precarious state of health, had been bedridden for years, and .seemingly had the' prospect of a very short tenure of life. She departed' this life on December 14, 1916. It is also admitted that the plaintiff offered to convey the property to the defendant and to deliver a warranty deed conveying the same, but the defendant refused to accept the deed or take possession of the property, contending that tbe deed from Mrs. Gilson conveyed only a life-estate and' that therefore the title is not. “good and marketable.” Under the contract of sale between Thomas Hilton, who was the vendee of Joseph Hilton,' and the Prudential Investment & Development Co;, executed May 21, 1921, the “titles are to be fee-simple and warranty; .• . titles are to be good and marketable.” The trial judge decreed that the title of the plaintiff, Thomas Hilton, to the property described in the petition for specific performance is “ good and marketable;” and that the deed of Lucinia Weeks Gilson, executed individually and as executrix of the will of Joseph P. Gilson, to Joseph Hilton, conveyed a fee-simple estate in the property described in the deed; and that the defendant in error was entitled to specific performance of the contract. To this decree the plaintiff in error excepted.</p>

<p>1. The court did not err in charging the jury as follows: “The burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case by showing the factum of the will, that is, that she made the will in due form of law, and that at the time of its execution the testatrix apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily. When the propounder shows these things that I have just told you about, that makes out a prima taeie ease; and when this is done, the burden of proof shifts to the caveator to show undue influence or mental incapacity to make the will, at the time it was made.” Slaughter v. Heath, 127 Ga. 747 (9) (57 S'. E. 69, 27 L. R. A. (N. S.) 1).</p> <p>2. The court did not err in charging the jury as follows: “ Incapacity to contract may coexist with the capacity to make a will.” this being merely one sentence in section 3842 of the Civil Code of 1910. The criticism was that the capacity of the testatrix to make contracts was not in issue, and that the court nowhere charged what mental capacity was necessary to make a contract, and nowhere charged the distinction between the capacity to contract and the capacity to make a will, if an elaboration had been desired on the subject of the capacity to make a contract and the distinction between capacity to contract and capacity to make a will, a written request should have been duly submitted.</p> <p>3. The court did not err in charging the jury as follows: “Honest persuasion or intercession to procure a will to be made in his favor would not amount to the exercise of undue influence on the part of John F. Ward. If you find that John F. Ward, by honest intercession or persuasion, sought to have his sister, Miss Martha A. Ward, make a will in his favor, that in itself would not amount to undue influence, and the will should not be set aside on that account alone.” DeWeiff v. Howel-l, 138 Ga. 248 (6) (75 S. E. 202) ; Mielcetson v. lUcloetson, 151 Ga. 540, 544 (2) (107 S. E. 522).</p> <p>4. The court did not err in refusing to admit in evidence a former will executed by the testator on May 17, 1904, the same having been revoked by the will sought to be probated, dated July 4, 1917.</p> <p>5. The court did not err in refusing to permit witnesses on behalf of the caveator to testify what two witnesses swore on a former trial of the case, such evidence being offered as a whole, and a portion thereof being inadmissible.</p> <p>6. The evidence authorized the verdict. This is conceded by the plaintiffs in error.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. August 10, 1921.</p>

Petition for injunction. Before Judge Hoop. Troup superior court. August 3, 1921. Held: there is singing, and the services are conducted in exactly the. same manner as regular church services, except that they are held on the streets. The court below denied the application for injunction, and error is assigned on this judgment.

<p>Petition for injunction. Before Judge Fortson. Jackson superior court. November 4, 1921.</p> <p>W. F. Morris and .others filed a petition against George E. Smith, tax-collector of Jackson County, B. H. Collier, sheriff of Jackson County, and the Board of Education of the Town of Maysville, seeking to enjoin the collection of a tax fi. fa. levied on the property of the petitioner for the support of the school in the Maysville School District. The petition alleges, in substance, that the tax levy and the fi. fa. are illegal and void, because the district has never been lawfully created; that no election .was ever held to consolidate and create the district, which lies partly in Banks and partly in Jackson County; that there has been no concurrent action taken for that purpose by the boards of education of the two said counties; that the law has not been complied with as to the election of trustees, as provided in the Civil Code, § 1533, and that the Board of Education of the Town of Maysville is acting as the board of trustees for the school district, a portion of said district lying without the corporate limits of the Town of Mays-ville; that, because no trustee has been elected residing in that portion of the district without the limits of Maysville, to enforce the collection of this tax amounts to taxation without representation against those so residing without the town limits; that in the election held for the purposes of determining whether there should be a tax levied in the district to supplement the public-school fund, the issue was not properly presented, because the tickets were not printed as required in the Civil Code, § 1534, to wit, “ for local tax for public schools ” and “ against local tax for public schools,” but were printed “ for local taxation ” and “against local taxation;” and that the tax fi. fa. is null and void, for the reason that it fails to contain or set out any of the jurisdictional facts or recitals necessary under the law to make it valid. The fi. fa. is as follows:</p> <p>“ Property returned $20,900. No. 430. 465th Dist. G.' M.</p> <p>“ The State of Georgia, Jackson County.</p> <p>“To all and singular sheriffs, deputy sheriffs, and constables of said county:</p> <p>“ You are commanded, that of the goods and chattels, if any be found, otherwise of the lands and tenements of W. F. Morris, you make by levy and sale thereof the sum of $104.50 for State, County and School tax for the year 1920, with interest from date at 7 per cent, per annum, and the further sum of fifty cents for cost, and you are hereby required to return this writ to me, with your actings and doings thereon, and the sums aforesaid, within the time prescribed by law. Herein fail not.</p> <p>“ Given under my hand this 21st day of December, 1920.</p> <p>G. E. Smith,“T. C. J. C.</p> <p>“ Poll tax--Prof, tax---State tax -• County tax--School tax $104.50. Total tax-Interest-Col. cost-Const, cost-Total--</p>

<p>Libel for divorce. Before Judge Malcolm D. Jones. Bibb superior court. July 18, 1921.</p>

Specific performance. Before Judge George L. Bell. Fulton, superior court. July 15, 1921.

<p>1. The judgment of the lower court overruling the general demurrer to the petition, the same being unexcepted-to, was a conclusive determination that a right of action for injunction existed in favor of the plaintiff; and upon substantial proof of its case as laid, the plaintiff was entitled to a verdict and decree in its favor.</p> <p>2. The court erred in directing a verdict for the defendant, there being no evidence traversing or avoiding the cause of action set out in the petition of the plaintiff.</p>

<p>Equitable petition. Before Judge Shurley. Warren superior court. September 16, 1921.</p>

<p>1. To maintain an action for trespass upon a tract of land, it is essential for the plaintiff to show title in himself, or possession; and when he relies upon possession alone as a basis for recovery, it must be the actual possession of that portion of the tract upon which it is alleged the trespass was committed.</p> <p>2. While one who enters in good faith upon land under a recorded deed, purporting to convey a single tract, is, in a sense, in constructive possession of the entire tract from the moment he takes actual possession of a part, still he has not such possession as will authorize him to maintain, even against a wrong-doer, an action of trespass to the portion of the tract of which he is not in actual possession, until lie has acquired title by prescription.</p> <p>3. Where a defendant admits that the plaintiff is the owner of a tract of land alleged to have been trespassed upon, the plaintiff is not required to prove title.</p> <p>4. In an action against two or more defendants for trespass upon land, the plaintiff can recover against one or more, if it appear that the trespass was several and not joint as to the one, or was joint as to two or more against whom the recovery is had.</p> <p>5. The verdict in behalf of the defendants not being demanded, this court will not interfere with the first grant of a new trial by the trial court.</p>

<p>1. Section 9 of the act of the General Assembly of 1909 (Georgia Laws 1909, p. 483) is not in conflict with that portion of article 1, see. 4, par. 1, of the constitution of Georgia (Civil Code, § 6391), which declares that “ no special law shall be enacted in any case for which provision has been made by an existing general law.”</p> <p>2. Section 9 of the act of the General Assembly of 1909 (Georgia Laws 1909, p. 483) is not in conflict with article 6, see. 18, par. 1, of the constitution of Georgia (Civil Code, § 6545), which declares that “ the right of. trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate.”</p> <p>3. Nor is it unconstitutional because it deprives defendants of the right of appeal.</p>

<p>Mandamus. Before Judge Sheppard. Long superior court. September 8, 1921.</p> <p>The General Assembly, by an act approved August 14, 1920 (Georgia Laws 1920, p. 48), proposed an amendment to the State constitution so as to create the County of Long. At the next general election in 1920 the proposed amendment was ratified. The act declared that an election for ordinary and other officers should be held in the new county on the first Wednesday in December, 1920, and that the persons then elected should “ qualify, give bond and take oath as prescribed by law,” hold office until the next general election for county officers, and until their successors were elected and qualified, and should enter upon the duties of their respective offices on January 1, 1921. At such election T. J. Harrington was chosen ordinary of the county, received his commission, qualified, and entered upon the duties of the office on January 1, 1921. In August, 1921, the General Assembly passed an act (Georgia Laws 1921, p. 525) creating a board of commissioners of roads and revenues for the County of Long; the board to consist of three members, who “shall reside in the road district from which they are elected, which districts are to be defined later on in this act.” Section two of the act declares: “ That for the purpose of this act the said County of Long shall be divided into three road districts to be constituted as follows, to wit: 'Road District No. 1 shall be composed of the 1672 militia district and that portion of the 1132 militia district remaining in said county. Road District No. 2 shall be composed of the 16th militia district and that portion of the 1756 militia district remaining in said countjb Road District No. 3 shall be composed of the 24th militia district, 1544th militia district, and all other territory in said county not embraced in Eoad District No. 1 and Eoad District No. 2.” Section three is: “ That at any time the County Commissioners shall create a new militia district they shall have authority by a majority vote of their board to attach said new militia district to any one of the three road districts.” The act further provides that the first election of county commissioners shall be held on the regular election day in November, 1922, and that the commissioners then elected shall go into office on January 1, 1923, and serve for four years; that the commissioners shall be elected by the qualified voters of the entire county, “but one of said commissioners, shall be a resident of and be elected from each of said road districts, each road district being thus represented on said board by a resident respectively. The resident of a road district receiving the highest number of votes in the entire county shall be declared elected to represent his district.” Section six declares: “ That from and after the passage of this act until January 1, 1923, or until their successors are elected and qualified, W. A. Strickland shall be the Commissioner for the First Eoad District, T. L. Howard shall be Commissioner for the Second Eoad District, and T. P. Gordon shall be Commissioner for the Third Eoad District, with full authority to perform all duties of the office of Commissioner of Eoads and Eevenues of Long County.” The act provides that before any commissioner shall qualify or perform any of the duties of his office he shall give a good bond in the sum of $2000, payable to the ordinary, and approved by him, conditioned for the faithful performance of the duties of his office, etc., “provided, that this provision of this section shall not go into effect until January 1st, 1923.”</p> <p>After the ratification of the act, the Governor duly transmitted to the ordinary of the county the commissions to the three persons designated in the act as commissioners until January 1st, 1923, with direction that he administer the oath to them and deliver their commissions. ' The ordinary declined to administer the path to such commissioners and to deliver to them their commissions and the “ control and management of all county property, affairs and funds of said County of Long,” though duly requested by them to do so. Thereupon the commissioners brought a petition for mandamus against T. J, Harrington as ordinary, in which the foregoing facts were stated; and it was prayed that the defendant be compelled to administer the oath and deliver to the applicants their commissions and the property of the county, etc.</p> <p>The respondent demurred and answered, setting up the same reasons in his answer and demurrer why a mandate absolute should not be granted against him. On the hearing it appeared that there were no disputed facts; and the court granted a mandamus absolute, requiring the ordinary to administer oaths to the applicants “ as county commissioners of Long County, Georgia, and turn over and deliver to them control and management of all county property, affairs and funds, provided for by the act creating said board of county commissioners.”</p>

Equitable petition. Before Judge J. B. Jones. Babun superior court. September 27, 1921.

Petition for injunction. Before Judge Shurley. Warren superior court. June 28, 1921.

Divorce and alimony. Before Judge Ellis. Fulton superior court. July 8, 1921.

Divorce. Before Judge Meldrim, Chatham superior court. August 17, 1921. On April 2, 1921, William Beynolds filed his libel for divorce against Jessie P. Eeynolds, on the ground that their marriage was utterly void, on the following facts: On June 7, 1920, the defendant telephoned and requested him to call at her home on the evening of the same day.

<p>The charge of the court authorizing the jury to find in favor of the municipality, which was seeking to appropriate a strip of land as a part of a public street, in case they should find that such strip had ever .been a part of a public street, although a deed of conveyance to' the petitioner, who sought an injunction against the city to restrain it from taking possession of the land, covered the strip in question and she had been in possession of it for twenty years or more, was error, because there was no evidence to show that the land in question had ever been a part of a public street or that the city had ever acquired it by grant, dedication, prescription, or in any other manner.</p>

<p>Indictment for murder. Before Judge Fortson. Clarke superior court. November 12, 1921.</p>

Mandamus. Before Judge George L. Bell. Fulton superior court. August 9, 1921. For the allegations of the plaintiffs petition for mandamus, see Blackman Health Resort v. Atlanta, 151 Ga. 507 (107 S. E. 525), when this case was here on demurrer.

<p>1. Where an administrator purchases directly or indirectly, at his own sale, property of his intestate, such sale is voidable at the election of the heirs at law; and they can move in a reasonable time to have the same set aside.</p> <p>(а) If the heirs at law knowingly receive the proceeds of such sale, they thereby ratify the same, and will be estopped from thereafter attacking the sale.</p> <p>(б) If a guardian of minor heirs receive from such administrator their portions of the proceeds of such sale, and such heirs, after reaching their majority, with knowledge of the facts, treat such funds as their own, and give to their guardian receipts in full therefor, they will be held to have ratified the administrator’s sale, and will thereafter be estopped from attacking the same, although they did not actually receive from their guardian such funds for which they so receipted.</p> <p>2. If, after an administrator buys land at his own sale, the heirs at law, with knowledge of their rights, stand by and allow the purchaser at such sale, or his assignee, to make valuable and expensive improvements on the land so bought, they will be estopped from asserting title thereto against such purchaser or his assigns.</p> <p>(a.) Where the court instructs the jury to find a special verdict of the facts only in a cause, and for this purpose propounds to them questions to be answered, it is not error for the court to propound to the jury a question on the theory that the plaintiffs are estopped under the above-recited facts, -without defining, in connection with the submission of such question, the circumstances which would make it inequitable for the plaintiff's to assert their claims to an interest in the land so sold, the court having given instructions on this theory after propounding to the jury a question upon the theory of estoppel, and in immediate connection with instructions upon the latter theory.</p> <p>3. The answer of the jury to question 6, when considered in connection with the charge of the court in reference thereto, and the answer to question 12 are not so contradictory as to be unintelligible.</p> <p>4. One tenant in common will not be estopped from asserting title to his interest in lands held by him and another tenant in common, by knowingly permitting, such other tenant, without objection on his part, to erect valuable, permanent and expensive improvements on joint property, during tlie existence of the joint tenancy, and before the' former tenant has been actually ousted by the latter, or until the latter takes exclusive possession of the joint property with notice to his cotenant of his adverse possession.</p> <p>(a) This rule does not apply where tlie alleged cotenant making such improvements claims to- be the sole owner of the property under an independent title, and holds the same adversely to the person claiming to be his cotenant, and with notice to the latter of such adverse and exclusive possession.</p>

<p>Temporary alimony, etc. Before Judge Hammond. Richmond superior court. October 23, 1921.</p> <p>Cassie McNeil applied for alimonjq alleging that she and her husband, Cornelius McNeil, were married September'1, 1921, and lived together as husband and wife until September 20, 1921, when defendant suggested that she spend the night with her mother, which she did at his request; that on her return home the following morning she found that her husband had removed all his personalty, and piled her clothes on the floor; that her husband then told her to take her clothes and return to her mother, as he- was tired of her, and did not expect to live with her longer, as he had given up the house and did not propose to pay any more rent for her or further support her; that this was without cause or fault on her part; and that her husband is an able-bodied man, in the employment of the Southern Railway, earning a salary of $120 per month. She prayed for temporary and permanent alimony, for reasonable attorney’s fees, and for process.</p> <p>In his answer the defendant admitted the marriage, but alleged that he had since been informed and believed that his wife, at the time of their marriage, had a living husband from whom she had never been divorced. He further alleged that his wife did not go to her mother’s, at his request, as alleged in her petition, but spent the night at her mother’s, as she had frequently done, over his protest. He admits that he removed his goods from their home, but says he did so because his wife, a few days before, had threatened to kill him, and to poison him; and because his wife had, on September 17, 1921, committed adultery with one J. T. Davis, which he had never condoned. He alleged that his wife had treated him in a cruel and inhuman manner, abusing him, threatening his life, and placing deleterious substances in his food and drink; that he did everything in his power, during the short time he lived with his wife, to please her, having moved on two different occasions to suit her whims. Bach time he provided her' with a home, with which she would become dissatisfied, and would not remain and take care of the same, but constantly remained at her mother’s. He refused to cohabit with her after she made threats to kill him, and now refuses to live with her on that ground, and on account of her adultery. He denied that he was earning $120 per month, and alleged that he was earning only' eighty dollars per month. He prayed for a total divorce.</p> <p>On the hearing the wife testified to the allegations in her petition. She proved her good character-by three witnesses by whom. she had been previously employed. She further testified that she did not know a man by the name of Davis, and had never had improper relations with him.</p> <p>The defendant introduced his sworn answer.</p> <p>Savannah Hendrix testified- that during- September, 1921, she lived at 911 Ninth street in the city of Augusta; that the back of her house was just across an open space from the home occupied by one Davis (whose given name she did not know), an unmarried colored man living alone on Bennett’s alley, a distance of about fifty feet from the end of her house; that on September 17, 1921, about 12 o’clock, she and Lucy Howard, who had come to spend the night with her, were sitting on the back steps of her home; that she saw Cassie McNeil go from her home, which is on the same side of Bennett’s alley as Davis’s home, and next door to it, into the home of Davis; that when she walked into the house of Davis he laughed and said, “ Come in,” that Cassie McNeil then walked into the house of Davis, who shut the door and put out the light, and was there when witness went to bed sometime later. She had known Davis for about two years.</p> <p>Lucy Howard testified that she was visiting Savannah Hendrix on the night of September 17, 1921, that an unmarried colored man by the name of Davis (whose given name she did not remember) lived alone in the rear of the home of Savannah Hendrix, on Bennett’s avenue, the back end of the two houses jutting up a distance of fifty feet from each other, with an open space between them, that she and Savannah Hendrix were sitting on the back steps of the latter’s home when they saw Cassie McNeil leave the rear end of her home, which was next door to the Davis home, and go into the house of Davis, who laughed and said. “ Come in,” and shut the door and put out the light, and this was about 12 o’clock p. m.</p> <p>On October 23, 1921, Judge Henry 0. Hammond passed an order requiring the defendant to "pay the plaintiff as temporary alimony the sum of twenty dollars a month, payable semi-monthly, and to commence it at once; that he pay to J. W. Burch, attorney for plaintiff, as attorney’s fees in prosecuting the action, the sum of forty dollars, payable in monthly payments of twenty dollars, the first payment to be made at once. The defendant excepted to this order, on the ground that it had been conclusively established that the wife had committed adultery on September 17, 1921, without condonation on the part of the husband, and that for this reason the judge should have refused to grant the plaintiff temporary alimony or attorney’s fees.</p>

Equitable petition. Before Judge Pendleton. Fulton superior court. October 24, 1921.

<p>• Petition for injunction. Before Judge Thomas. Brooks superior court. September 24, 1921.</p>

Petition for direction. Before Judge Hutcheson. DeKalb superior court. November 9, 1921. P. K. Burns, as administrator upon the estate of T. J. Goza, filed a petition praying direction as to the distribution of the estate represented by him.

<p>The instructions to the jury, and the alleged omissions to charge, present no cause for a new trial; and the conviction of murder was authorized by the evidence.</p>

<p>Equitable petition. Before Judge Littlejohn. Sumter superior court. August 22, 1921.</p> <p>E. A. Wilson Sr. brought his equitable petition against A. J. Boberts and others, now plaintiffs in error, seeking injunction and a decree for the rescission of a certain contract for the purchase of land. Petitioner alleged, that he had purchased from the plaintiffs in error lots of land Nos. 223 and 224, each containing 202% acres, more or less, situated in the 14th district of Lee County, and 26 acres of land» from designated lots in the 15th district of Lee County, aggregating 431 acres, more or less, all lying and being in one body and known as the Eed Hill Place, which was owned by “the late A. J. Eoberts ” at the time of his death, for the consideration of $9,697.50, $500 of which was paid in cash, the balance represented by two promissory notes;'that, subsequently to the purchase of the land, petitioner learned that the vendors did not own all of lot of land No. 223, but that A. J. Eoberts, deceased, before the defendants obtained title to the property had alienated and conveyed, on October 22, 1913, “a tract of land in the southwest corner of lot number two hundred and twenty-three (223), consisting of all the cleared land south of Chokee Creek, consisting of twenty and eight-tenths (20.8) acres; that said 20.8 acres was conveyed to one Johnson, and by him to Hodges; that on learning of this and that the vendors could not make title to said tract of land, petitioner declined to complete the purchase, as he had purchased the whole tract of lots 223 and 224, and as the heirs of said A. J. Eoberts, deceased, did not have title to all, he did not-wish the remainder;” that he demanded the refunding of the money that had been paid and a rescission of the contract. Certain misdescription of the fractional lots- containing 26 acres was also alleged. The defendants denied the allegations set out in the petition; and alleged in their answer, that it was their intention to sell plaintiff the Eed Hill Place which was owned and possessed by A. J. Eoberts at the time of his death, from whom they inherited the land; that the property was sold to plaintiff as a tract —as the Eed Hill tract, containing 431 acres, more or less; that when F. A. Wilson Sr. was shown the property he was not shown that part south and west of Chokee Creek, nor was he told that it belonged to the place; that any mistake that occurred in the description was a mutual mistake; and that the entire tract of land contains more than 431 acres. The jury trying the case returned a verdict for the plaintiff, and that there should be a rescission of the contract and a repayment of the money-already paid by petitioner. The defendants made a motion for a new trial, which was overruled, and they excepted.</p>

Equitable petition. Before Judge Worrill. Clay superior court. November 5, 1921. An equitable petition was brought by George McDonald against his debtor, S. E. Fain; and H. E. Hammack, another creditor of Fain, was joined as one of the parties defendant. At the trial the controlling issues narrowed down to a contest between the plaintiff and H. E. Hammack as to who held the superior lien on certain land belonging to their common debtor.

Before Judge Park. Putnam superior court. September 24, 1921. Sidney Griffin, and Mrs. Lizzie Layson as guardian and next friend for Millard Griffin, brought a petition against J. B. Griffin, the purpose of the petition being for the partition by sale of a certain tract of land in Putnam County, in possession of the defendant, and to secure an accounting for the rents and profits of the land.

<p>Complaint for land. Before Judge Park. Hancock superior court. June 22, 1922.</p>

<p>Where one having a pistol concealed about his person in one county was legally arrested by an officer in that county and by the latter carried into another county, where the concealed weapon was discovered, the person thus having the concealed -weapon and who was arrested and carried into another county could not be prosecuted and convicted in the latter county for the offense of carrying a concealed weapon.</p>

<p>Equitable petition. Before Judge Jones. Babun superior court. August 23, 1921.</p>

<p>1. A parol agreement by a person to adopt the child of another as his own, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years during the obligor’s life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled as a child to the property of the obligor, undisposed of by will.</p> <p>2. Under the facts of this case the plaintiff can .bring her suit in her individual capacity against her coadministrators to recover her interest in the property in controversy.</p> <p>3. Such an equitable action as set out in the first headnote is maintainable by the plaintiff in her own name against the administrators of the obligor.</p> <p>4. One in peaceable possession of property is neither guilty of lqches, nor barred by the statute of limitations, from resorting to a court of equity in order to enforce his right to the legal title, where there is no assertion of adverse claim thereto and no fact or circumstance to put plaintiff on notice of such claim.</p> <p>5. A plaintiff may embrace in his petition as many counts as he sees proper, provided all the counts set forth similar causes of action of a similar nature, and each count sets forth a complete cause of action.</p> <p>6. The petition is not open to the objection that it is multifarious.</p> <p>7. The petition set out a good cause of action.</p>

<p>Equitable petition. Before Judge Worrill. Early superior court. October 11, 1921.</p> <p>C. C. Lane as ordinary of Early county, for the use of Martha J. Hudspeth, Martha E. Crozier, and Julius E. Hudspeth, filed suit in Early superior court, against J. B. Tarver individually and as executor of the estate of J. C. Hudspeth’ and the Hnited States Fidelity and Guaranty Company as surety on his bond as such executor; said suit being for breaches of said bond, and for an equitable accounting. He alleged: J. C. Hudspeth died intestate on July 29, 1914, leaving as his next of kin and sole heirs at law Martha J. Hudspeth, his widow, Martha E. Crozier, a married daughter, and Julius E. Hudspeth, a son. On December 13, 1911, he executed his last will in which he named the above usees as beneficiaries, and J. B. Tarver as sole executor of his will." He left an-estate of the value of $100,000 or other large sum. Said will was probated at the August term, 1914, of the court of ordinary of Early county, in common form; and on August 3, 1914, during said term, said court passed an order probating said will and admitting it to record. On the same day said Tarver qualified as executor, and letters testamentary were issued to him. He entered upon the discharge of his duties, and took possession of all of the estate. On April 27, 1915, Tarver as executor gave bond payable to the ordinary of the county and his successors in office, in the sum of $20,000, conditioned for the faithful discharge by him of the said trust. The Hhited States Fidelity and Guaranty Company is the surety on said bond. This bond was duly approved and recorded by the ordinary, on June 17, 1915. Tarver has wholly failed to properly perform the duties of the office of executor, and to comply with the terms and conditions of the bond, to the hurt of the usees in this action. The testator died seized and possessed of a house and lot in the city of Blakely, of his river plantation containing 1046 acres, of his Cole plantation containing 1028 acres, and his Bailey plantation containing 294 acres. Immediately upon his appointment as executor Tarver took actual and exclusive control of said farming lands, on which there were growing crops which had been cultivated by the testator, and completed said farming operations during the remainder of the year 1914, and harvested and sold said crops, of the value of at least $10,000, for which he has never accounted. He has .never surrendered to the beneficiaries of the will possession or control of any of said real estate, and has never accounted to them for any of the rents, issues, and profits realized by him as such executor from said lands, of the yearly value of $10,000. He unlawfully continued farming operations on said lands in the year 1915, .and in so doing misappropriated trust funds in his hands as executor, aggregating $10,000, for which he has never accounted to petitioner nor to said beneficiaries, notwithstanding the devastavit. Testator died possessed of notes and mortgages of the value of $22,751.80, open accounts of the value of $4,265, cash on deposit in the Farmers State Bank amounting to $3,997.83, thirty shares of the capital stock of said bank of the face value of $3,000, eight mules of the value of $150 each, and one horse of the value of $125. During the years 1914 and 1915 the executor collected the full amount due on said accounts, and the sum of $3,633.63 on said notes and mortgages, for the amount of which he has never accounted to petitioner or to said beneficiaries. On December 4, 1914, the executor sold cotton of said estate, for the amount of $5001.04, and on June If, 1915, he sold other cotton of said estate for the sum of $1909.50; but he has never accounted for any of the proceeds of said cotton.</p> <p>In paragraph 16 of the petition it is alleged that Tarver as executor did not, at the July term, 1915, of the court of ordinary, or at any time prior thereto, as required by law, make any returns to that court of his receipts and expenditures in behalf of. said estate during the preceding year, and did not render any account of his acts and doings as such executor, although he was not relieved of this legal duty by the will. In paragraph If it is alleged that Tarver, on August 2, 1915, appropriated to his own use, out of the cash in his hands belonging to said estate, the sum of $1111.60, which he wrongfully claimed as commissions, which he had forfeited by failing to make his annual returns to the court of ordinary at the July term, 1915; the ordinary having never, for cause shown, by special order relieved said executor from said forfeiture. In paragraph 18 it is alleged that said devastavit is a breach of his bond, for which he and said surety are liable, he never having subsequently come to any accounting with petitioner or with said beneficiaries for said sum of $1111.60 or any part thereof. On August 2, 1915, Tarver also .appropriated to his own use, out of funds of said estate in his hands, the sum of $1200, upon the unfounded and illegal claim that he was entitled thereto for “ salary and expenses,” while acting as executor. lie had not incurred expenses by being required to travel out of his county in order to attend to his duties as executor, or other expenses for which he could legally claim the right to be reimbursed. The court of ordinary had not allowed him any amount for expenses incurred as executor. At the time of his appointment the crops of 1914 were laid by, and the services performed in superintending the harvesting and marketing of said crops were inconsiderable. He has never made application to said court for compensation therefor, and has forfeited all claim to any extra compensation, by reason of his wrongful and unlawful conduct by breach of trust as such executor, as herein set forth. Testator died leaving unpaid debts not exceeding $500, including expenses of his last illness and burial. The surety on said bond has never come to any accounting with petitioner or with said beneficiaries, for any devastavit committed by the executor, for his failure to come to a full and just accounting with said beneficiaries, or for any other breach of said bond. Petitioner prayed, that Tarver be required to come to a full, true, and just accounting, for the use of said beneficiaries, of all assets belonging to said estate a’nd coming into his hands; that the surety on the bond be held liable for every devastavit committed by the executor; that petitioner have judgment against the principal and suret3', jointly and severalty, for such damages as have accrued by reason of their breach of the bond in failing to account with the beneficiaries named in the will, for their respective interests in said estate; and that such other and further relief be granted as may appear just and proper.</p> <p>Tarver demurred to the petition, on the grounds: (1) that the sam'e sets forth no cause of action; (2) that the facts alleged therein show no right of C. C. Lane to bring said suit for the benefit of said usees; (3) that Martha E. Crozier and Julius E. Hudspeth, being remaindermen, have no interest in the proceeds of the income from said prope^, and their names should be stricken; (4) that it appears from the allegations of the 16th, 17th, and 18th paragraphs of the petition that the testator died on July 29, 1914, and defendant was under no duty to make any return of his acts and doings within a year from said date; and accordingly he was in no default by failing to make said return to the July term of the court of ordinary, and did not forfeit any commissions for that reason; (5) specialty to paragraph 16, because it was not alleged therein or elsewhere in the petition that this defendant did not make any return, or, if any, on what date the same was made; (6) specialty to paragraph 18, because the same is a bare conclusion of. the pleader, unsupported by any facts. The court sustained the fourth and fifth grounds of the demurrer and struck the 16th, 17th, and 18th paragraphs of the petition; to which ruling the plaintiff filed his- exceptions pendente lite, and assigned error thereon.</p> <p>In his will the testator bequeathed and devised all his property to his wife, Martha J. Hudspeth, for her natural life, with remainder to his children, Martha E. Crozier and Julius E. Hudspeth, share and share alike. J. B. Tarver was appointed sole executor of the will. The court referred the cause to Judge J. E. Pottle, as auditor, The auditor filed his report, to which the plaintiff: filed exceptions. Plaintiff abandoned his 1st, 2d, and 3d exceptions of law. The court overruled the 4th, 5th, 6th, and 8th exceptions of law filed by the plaintiff, and the 2d, 3d, 4th, and 5th exceptions of fact, in so far as the life-tenant was affected by the findings of the auditor in said exceptions. Proper exceptions pendente lite were taken to these rulings. Plaintiff assigns error thereon, and says that the court erred in overruling his 6th exception of fact to the auditor’s report, and in holding that, so far as the rights of the life-tenant are concerned, there is no merit in plaintiff’s 4th, 5th, 6th, or 8th exception of law, or in his 2d, 3d, 4th, or 5th exception of fact. '</p> <p>Plaintiff’s 2d, 3d, and 6th exceptions of fact are as follows: (2) “ Plaintiff excepts to the auditor’s second finding of fact, to the effect that the plaintiff and his usees are estopped by their acts and conduct from asserting that Tarver illegally continued the farming operations on the estate, and are likewise estopped from calling him to an accounting for any moneys of the estate thus expended by him. Said finding was contrary to the evidence and without evidence to support it. The evidence on this issue is set forth in Exhibit Á, hereto attached.” (3) “Plaintiff further excepts to the auditor’s fifth finding of fact, allowing the executor the sum of $1200 by way of extra compensation for his services in' operating the farms of the estate. Plaintiff insists that said finding was not only excessive in amount, but contrary to law and to the evidence and without evidence to support it, as well as contrary to the principles of equity and good conscience, and tends to put a premium upon unlawful conduct on the part of overzealous, corrupt, or misguided ancl ignorant representatives of trust estates. In support of this exception plaintiff points out the following evidence, viz.: that set forth in Exhibits A, B, and C, hereto attached.” (6) “Plaintiff excepts to the recommendation of the auditor that fthe costs and fees of the auditor be equally divided between the parties in this case.’ Said finding is contrary to the principles of equity and justice and unsupported by the evidence as a whole, which shows (Exhibit C) that the executor was disloyal to his trust; that he either ignorantly or wilfully wasted trust funds in an illegal farming venture (Exhibit A), turned over the valuable assets of the estate mentioned in the aforesaid receipt of Bridges, without first investigating to ascertain if Bridges had been legally appointed as administrator de bonis non and had duly qualified as such, and in other respects managed the estate with a total disregard to the law or his moral obligations as executor. Wherefore plaintiff prays that said recommendation be disregarded by this honorable court, and that all of the costs of this necessary litigation be taxed against the defendants.”</p> <p>The 4th, 5th and 6th exceptions of law are as follows:</p> <p>“ Fourth. Plaintiff excepts to the nineteenth finding of law, wherein ‘ the auditor holds and rules, as a matter of law, that under the undisputed evidence in this case the plaintiff is estopped to call the defendant executor to an accounting, or to obtain any judgment against him, by reason of the operations of the farms of the estate during the year 1915.’ Error is assigned on said ruling, because the same is contrary to law and not warranted by the evidence on this issue, all of which evidence is set forth in full in an exhibit hereto attached and marked ‘ Exhibit A ’ and made a part of these exceptions by way of reference. Plaintiff specifically excepts to the auditor’s legal conclusion (stated in said 19th finding of law) that ‘the beneficiaries under the will impliedly consented for the executor to operate the farms for the estate,’ said conclusion being-unwarranted by the evidence, and contrary to the decided weight of the evidence, set forth in Exhibit A. Error is also assigned on the auditor’s holding, in this connection, that notwithstanding these beneficiaries all testified they were under the impression that the executor had a legal right to so operate the farms, still ‘they were as much chargeable with knowledge of the law as he was ’ (which is an erroneous application of the law, in such cases as the present), and that ‘they knew that he was operating the farms, and that in operating them he was using the estate’s monejr,’ which conclusion could not be drawn from the evidence as matter of law, and was not supported by the evidence on any issue of fact involved. Error is further assigned on the auditor’s holding that said evidence was sufficient to satisfy him, as matter of law, ‘ that' they were willing for this to be done,’ inasmuch as they ‘ made no complaint about it until after the defendant Tarver had surrendered the property of the estate to J. 0. Bridges and this proceeding was begun.’ The evidence warranted no'such erroneous conclusion, either as matter of law or as matter of fact. Plaintiff also assigns error on the auditor’s conclusion of law, stated in the same connection, that ‘the evidence shows that all of the expenditures for which the executor claims credit were proper and necessary outlays in connection with the farming operations, and that these farming operations were conducted by the executor in the usual and proper'way.’ Because, as plaintiff insists, said conclusion was contrary to the statute which forbids an executor, in the absence of express power conferred on him under the will of his testator, carrying on the latter’s farming operations beyond the end of the calendar year in which he died; and because the evidence warranted no such conclusion. In addition to the evidence set forth in Exhibit A, hereto attached, plaintiff points out the following testimony showing what expenditures were made by the executor in carrying on said farming operations during the year (1915) following that in which his testator died, viz.: Testimony of the witness J. B. Tarver, reported in the auditor’s brief of the oral evidence on pages 11 to 21, inclusive, and on pages 181, 182, and 183, as well as on pages 52 to 56, both inclusive. Also, annual returns of the executor to the court of ordinary, under the head of expenditures, a copy of which document is attached to the auditor’s report of the documentary evidence admitted. Plaintiff further excepts to the auditor’s conclusion that, as matter of law, ‘ the evidence shows that a profit resulted from the conduct of these farming operations, and that the beneficiaries of the estate got the benefit of this profit by having the same turned over to Mr. Bridges, who succeeded Mr. Tarver in the control and management of the farms.’ Exception is taken to this conclusion, not only because it was wholly unwarranted by the evidence, but because it was contrary to law, in that (as the auditor himself holds in his 21st finding of law) J. 0. Bridges was not legally appointed administrator de bonis non upon the estate; he was in no sense the representative of these beneficiaries, but is legally to be regarded as the ‘ agent ’ of Tarver in assuming charge of the assets of the estate; and none of the proceeds of this illegal farming venture were traced into -the hands of either the life-tenant or of the remaindermen, nor did the defendants undertake to show that Bridges had ever come to an accounting with any one or more of these beneficiaries, or that any one of them had derived any 'profit’ or benefit whatsoever.out of the farming crops of 1915 turned over to Bridges, without any authority of law, by the executor. The following evidence shows the facts and circumstances regarding the inane steps taken to have Bridges appointed as the successor of Tarver: (a) Petition by Tarver to the court of ordinary for leave to resign as executor, together with acknowledgment’ of service and other entries thereon, a certified copy of which proceedings are attached to the auditor’s report as part of the documentary evidence admitted; (5) order passed by the ordinary in vacation, dated September 20, 1915, purporting to accept the resignation of Tarver and to appoint Bridges in his stead; (c) written receipt introduced in evidence, from Bridges to Tarver, dated August 3, 1915, for property of the estate turned over by the executor to Bridges; and (d) the testimony of C. C. Lane, the ordinary, reported on pages 3, 4, and. 5 of the brief of the-oral evidence filed by the auditor. Exception is also taken to the auditor’s ultimate conclusion, that as matter of law, ' under the undisputed evidence in this case, the beneficiaries elected to take the profits, and that they can not complain that the executor engaged in this unlawful business venture.’ Said conclusion was contrary to the evidence hereinbefore referred to as being set forth in Exhibit A, and wholly unwarranted by said evidence as even a conclusion of fact, much less a conclusion of law, there being no evidence that any one or more of these beneficiaries ever ' elected ’ to ratify the illegal acts of the executor in carrying on said farming operations during the year 1915, dr that they 'elected to take the profits,’ or that there were in fact any profits derived by anybody ' in this unlawful business venture,’ or that they have ever received any benefit whatsoever arising therefrom, or have anything more than an equitable right (which they have not elected to pursue) to ratify the executor’s said illegal acts, and to call on Bridges, as an executor de son tort, for an accounting for such assets of the estate as they might be able to trace into his hands.</p> <p>''Fifth. Plaintiff excepts to the auditor’s ninth finding of law, overruling plaintiff’s motion to exclude all evidence offered by defendants as to what it was worth to oversee the farming operations on the property of the Hudspeth estate during the year 1915, on the ground that the executor had no authority to carry on the farming operations, and for this reason would not be entitled to any extra compensation for so doing. The evidence to which reference is here made is fully set forth in an exhibit hereto attached and marked ‘Exhibit B.’ Plaintiff insists that said rilling was erroneous and contrary to law, especially as, in view of the evidence incorporated in Exhibit A, there can be no lawful holding, either that any of the beneficiaries of the estate assented to or ratified the illegal conduct of the executor, or that they are for any reason estopped from calling him to an accounting for the funds thus illegally misappropriated by him.</p> <p>“Sixth. Plaintiff excepts to the auditor’s 24th finding of law, that the executor was entitled to extra compensation for his services in operating the farms for the estate. Said finding was contrary to law and wholly unauthorized under the evidence upon this issue set forth in Exhibit A, hereto attached. Especially was said holding erroneous, as being contrary to the principles of equity and justice, in that the executor was not faithful to his trust, but admittedly converted trust property to his own use, as shown by the evidence set forth in Exhibit C, hereto attached.”</p> <p>On October 6, 1921, during the October term of Early superi- or court, the defendants offered an amendment to their respective answers, in which they alleged that J. B. Tarver, executor, on August 1, 1915, turned over to J. C. Bridges, the authorized agent of all the beneficiaries under this will, the entire estate, or the equivalent thereof, which had come into his hands as such executor, after the payment of the just debts against said estate and the necessary expenses of administration; and the same was duly accepted by said agent, and by said beneficiaries under said will, as the property of said estate and as all the property of said estate. In this amendment it was further set up, that if it should appear that Bridges was not the agent of the remaindermen, but of' the life-tenant alone under said will, and said remaindermen were not bound by the acceptance of said estate by Bridges and by the life-tenant, or by their own acts or omissions in the premises, in that event the plaintiff, for the use of the remaindermen alone, would have no right to recover in this suit any sums whatsoever against these defendants on the bond of said executor. They further set up that if the court should allow the remaindermen alone, or the petitioner for their use, to recover against these defendants on said bond, for any change of investment, or funds paid out, or expenses incurred by said executor in the management of said estate, which said changes of investment or funds paid out or expenses incurred were authorized or approved by the life-tenant, then these defendants would be entitled to recover, and should have judgment over, against said life-tenant for any sum or sums recovered against them by said remaindermen; and they prayed, if said remaindermen, or the ordinary for their use, should recover, as aforesaid, any sunr or sums against these defendants on said bond, these defendants have judgment over against said life-tenant for the same. To this amendment the plaintiff objected. upon the grounds, that' (1) it came too late; (2) it introduced new and distinct issues not covered by the previous pleadings; and (3) that the allegations of paragraph one of the amendment are not supported by the evidence introduced before the auditor, and are not germane to the issue before the court. The court overruled these objections, and allowed the amendment. Error is assigned on this judgment.</p> <p>On October 11,1921, the court rendered its final decree, in which it overruled the seventh exception of law and the first exception of fact filed by the plaintiff to the auditor’s- original report. To this judgment the plaintiff excepts and assigns error thereon. In the final decree the court further adjudicated that the plaintiff was entitled to recover, for the use only of the remaindermen, the money illegally expended by the executor in carrying on the farming operations during the year 1915, and in making betterments and repairs on the realty belonging to the estate, and allowing himself extra compensation for conducting said farming operations, and in crediting himself with commissions to which he was not legally entitled, without any interest from the date when such expenditures were made. To this portion of the decree the plaintiff excepts and assigns error thereon, upon the grounds: (a) Under the evidence reported by the auditor, and the law applicable thereto, plaintiff was entitled, as a matter of law, to recover against defendants for such illegal expenditures for the use of the life-tenant, especially the funds misappropriated in carrying on said farming operations, and appropriated by the executor as extra compensation. (&) The defendants were chargeable with the legal interest on all moneys so illegally expended and misappropriated by them on the dates respectively on which he committed the several devastavits, or from the date when he became liable under the law to come to a complete accounting as executor to the beneficiaries under the will, -(c) The life-tenant was not estopped from calling the executor and surety to'an accounting for money illegally expended in carrying on said farming operations. (d) There was no privity of contract between the executor and life-tenant, nor any legal or equitable principle justifying the executor, or that the crops of 1915 were turned over by the executor to any one authorized to represent her as agent in such transaction. (e) There was no privity of contract between the executor and life-tenant, nor any legal or equitable principle justifying the executor, as against her, in appropriating to his own use $1200 as trust funds in his hands, as extra compensation for his illegal conduct in carrying on said farming operations.</p> <p>On the final decree the court further adjudged that the defendants have judgment over against the life-tenant for the several sums for which judgment was rendered in favor of the plaintiff for the use of Martha E. Crozier and Julius E. Hudspeth; to which portion of the decree the plaintiff excepted and assigned error thereon, on the grounds: (1) that said judgment over was contrary to law, to the principles of equity and justice, and unwarranted by the evidence or the defendants’ pleadings, and was rendered without giving to the life-tenant her day in court, or affording her a fair opportunity to introduce evidence or otherwise contest the defendants’ claim against her, presented for the first time after all their exceptions to the auditor’s report had been overruled by the court,- and the case was closed save as to entering the final decree on the auditor’s report; (2.) that the life-tenant was not chargeable with the illegal conduct of the executor in misapplying or misappropriating trust funds; (3) that there was no evidence warranting a finding that she received, in whole or in part, the fruits of the executor’s illegal farming venture, or that the crops of 1915 were turned over by him to her or her authorized agent; (4) that in no sense was the executor her agent while engaged in the illegal farming venture, nor can she be held legally bound to pay him for his services in thus violating the law; (-5) that she is not legally chargeable with moneys illegally expended by the executor in making betterments or repairs on the estate; (6) that she is not under any legal, equitable, or moral duty to compensate the executor for his time and energy expended in misappropriating trust funds, or liable to him or his surety because he may be forced by the remaindermen to account for the $1200 he unlawfully appropriated to his own use under his illegal claim for extra compensation.</p> <p>In the final decree the court further adjudged that the costs and expenses of the proceeding, including the auditor’s fee, be taken against the' plaintiff and the defendants equally. To this judgment the plaintiff excepted and assigned the same as error, on the ground that it was contrary to law and the principles of equity and justice; the plaintiff having prevailed in establishing his claims against the defendants, and the evidence disclosing that the executor was guilty of gross misconduct in mismanaging the estate and in misappropriating trust funds.</p>

<p>That part of section 34 of article 20 of the act approved August 16, 1919 (Georgia Laws 1919, p. 135), entitled an act to regulate banking, etc., which declares that “ Any person who, with intent to defraud, shall make, or draw, or- utter, or deliver any check, draft, or order for the payment of money upon any bank, or other depository, knowing at the time of such making, drawing, uttering, or delivery that the maker or drawer has not sufficient funds in or credit with such bank, or other depository, for the payment of such check, draft, or order in full upon its presentation, shall be guilty of a misdemeanor,” is unconstitutional, because it violates the provision of the constitution of Georgia contained in article 3, section 7, paragraph 8, of the constitution (Civil Code, § 6437), in that it contains matter different from what is expressed in the title of the act.</p>

<p>Equitable petition. Before Judge Kent. Laurens superior court. July 28, 1921.</p>

<p>Petition for injunction. Before Judge B. C. Bell. Calhoun superior court. May 28, 1921.'</p>

<p>Mandamus. Before Judge Sheppard. Evans superior court. September 3, 192(1.</p>

The Court of Appeals (in Case No. 12572) propounded the following question as necessarily to be answered for a proper decision of the case: Where a suit was brought in a justice’s court against a railroad corporation for damages, and the railroad corporation filed an answer denying liability, and on the trial of the case evidence was submitted and a verdict and judgment rendered against the railroad company, and no evidence was offered in behalf of the defendant, was it too…

<p>Habeas corpus. Before Judge Humphries. Fulton superior' court. October 29, 1921.</p>

<p>1. The trial court did not err in excluding the evidence offered by the guardian, and set out in the fourth to twenty-fourth grounds of the motion for new trial.</p> <p>2. The range in time of impeaching testimony rests in the sound discretion of the trial judge.</p> <p>3. Depositions of a witness, properly taken by the defendants, were not rendered inadmissible because, subsequently to their taking, the witness had appeared in court, been sworn as a witness for the defendants, being thus subjected to a thorough direct and cross-examination, and her testimony had been made a part of the record.</p> <p>4. In order to impeach a witness by contradictory statements, it is not necessary that he should absolutely deny the declarations made by him; but this may be done when the witness says he does not recollect such statements, if the same be relevant to the issue on trial.</p> <p>5. It is well settled that a witness can not be sustained by proof of consistent statements, although the latter may have been made under oath on a previous trial of the same case.</p> <p>6. If at the time of the trial a witness resided beyond the limits of the State, he was inaccessible; and his testimony on the former tidal of the case should have been admitted by the court.</p> <p>(а) Before such testimony is admissible, the party offering it must show that the witness is inaccessible.</p> <p>(б) The question of the inaccessibility of the witness was one for the determination of the trial court in the exercise of a sound discretion; and we can not say that the trial judge abused his discretion in refusing to admit the testimony of the witness on the former trial under the proof.</p> <p>7. Before contradictory statements, previously made, can. be proved against ■ a witness for the purpose of impeaching him (unless they are written statements made under oath in connection with some judicial proceeding), his mind should be called with as much certainty as possible to the time,' place, person, and circumstances attending the former statement; and, if in writing, the same should be shown to him, or read in his hearing if in existence.</p> <p>(а) This rule is just to the witness and the party calling him, who has rights dependent upon his testimony.</p> <p>(б) Depositions of a witness previously taken out in a cause can be used to impeach a witness without first laying the foundation.</p> <p>(c) A witness whose testimony, taken by depositions, is before the jury on a second trial, can not be impeached by his testimony on a former trial, embraced in a brief of such evidence, agreed to by counsel and approved by the court, unless the proper foundation has been laid by calling his attention thereto and affording him an opportunity to explain.</p> <p>8. A female witness, whose testimony under oúr statute can be taken by interrogatories, and who can not be compelled to attend court in person under subpoena, is not such an inaccessible witness, in the sense of our law, as would permit her testimony on a former tidal to be used; and the trial court did not err in rejecting proof of the former testimony of such witness when offered by the movant.</p> <p>9. The trial court did not err in refusing to reopen the case for the introduction by the guardian of additional testimony, it not being made to appear that it had been inadvertently overlooked by counsel.</p> <p>10. The court did not err in charging the jury that “ he [meaning Marion W. Estill] can not, by claiming her as his child, alter the status. The will of John Holbrook Estill provides that Marion W. Estill shall have the share of his estate in controversy, with remainder to his children. If he had no children, it was to go to other legatees under the will of the testator. Marion W. Estill could by no act of his own change this will. He can not, by claiming that a child was his, change the will. To receive the property the child must have been his and by him begotten, and no act or claim of Marion W. Estill as to a child not his and not by him begotten can change the status of such child.”</p> <p>11. The court did not err in charging the jury as follows: “Letters of Marion W. Estill containing declarations, and also oral declarations of his, relating to the paternity of the child, Marian Virginia Estill, have been admitted in evidence. These declarations were admitted as evidence only, and to be given only such credit as you see fit to give them in the light of all of the evidence in the case; and if you find from the evidence that they were made for the purpose of being used as evidence, and not as spontaneous expressions, then you should disregard them and give them no credit at all.”</p>

<p>Petition for injunction. Before Judge Pendleton. Fulton superior court. October 31, 1921.</p> <p>Mrs. C. P. Hope, Mrs. W. F. Wofford, C. G. Gray, and J. G. Johnson filed their equitable petition against Dr. J. 0. Seamans, J. S. Slicer, Governor’s Horse Guard, a corporation, and the Pittman Construction Company, in which they allege that they are owners of land, where they reside, located on North Boulevard, near where Piedmont Avenue crosses North Boulevard in Fulton county. They have been living in said vicinity, which is a suburb of the city of Atlanta, for a number of years, and on January 1, 1922, said territory would be within the limits of the city of Atlanta. The Governor’s Horse Guard, through said Seamans and Slicer, intend to erect on North Boulevard, about 200 yards north of Piedmont avenue, stables for the purpose of housing about forty head of horses. They are informed that said defendants have contracted with the Pittman Construction Company for the erection of said barn and stables.' The erection of said barn and stables upon said street at said place and within the vicinity of their residences would decrease the value of their property, would cause an accumulation of flies, and, “ would also cause said vicinity to be annoyed by bad odors from said barn and stables.” The vicinity in which said barn and stables are proposed to be built is a strictly residential section, with the exception of a store at the corner of Boulevard and Piedmont avenue. To have a barn with forty head of horses therein in the vicinity of their residences would be accompanied by more or less noise, which would be continuous throughout the day and night. Should said barn and stable be erected, they would not be able to compute their damages in money, and it would be'difficult to estimate the same. The erection of said barn and stables would be a continuing nuisance because of the facts hereinbefore stated. If defendants are permitted to erect said barn and stables, petitioners and others in said vicinity would be compelled to file suits for damages, and to restrain the nuisance of maintaining said barn, which would purduce a multiplicity of suits. The defendants are now engaged in grading the land upon which to build said barn; and petitioners are informed that defendants intend to build said barn within twelve hours after the lot is graded. They pray that the defendants be enjoined and restrained from building said barn or horse-stables upon said property. The petition was duly verified. By amendment the plaintiffs struck the name of Pittman Construction Company, alleging that C. 0. Pittman was the contractor in charge of said work, and prayed that he be made a party defendant. This was done.</p> <p>The defendants demurred on the ground that the petition set forth no cause of action, and set forth no facts which would authorize the injunction prayed. In their answer the defendants admitted that the Governor’s Horse Guard intended to erect the stables, but alleged that the same would be modern, well equipped, and perfectly sanitary in all respects. They admitted that they had contracted with the Pittman Construction Company for the erection of the barns and stables, and that much work had been done thereon. Much material and supplies had been purchased, workmen employed, and they were incurring a great loss and expense. They denied that the value of the plaintiff’s property would be diminished by the erection of said barn; that the people in the vicinity would be annoyed by bad odors therefrom; that the vicinity in which the barn and stables are to be erected is a strictly residential section; that the erection of the structure would cause more or less noise which would be continuous throughout the day and night; that plaintiffs’ damages would be irreparable; and that the barn and stables would be a continuing nuisance, or a nuisance at all. They alleged that said barn and stables are to be built in in a perfectly clean and sanitary condition, that the same will not be a nuisance, and will not be offensive to the people in the neighborhood; that they have been at a great expense in grading said lot; that material and supplies have been purchased; that a contract has been let for the building of the barn; that a large number of horses have been supplied, and are now being kept at great inconvenience and expense. Hnless a stable is erected, the Government will take back its horses, and horse guards will have to be disbanded. The location of the stables is on an unpaved road, out of the city limits in the country, surrounded by woods, in a neighborhood where dairies, cows, horses, and other animals are kept. The Hnited States government furnishes four expert men to keep the stable in good condition. The answer was duly verified.</p> <p>The plaintiffs introduced evidence tending to prove the allegations of their petition. • The defendants introduced the affidavit of J. S. Slicer, the captain of the Governor’s Horse Guard, in which he deposed; Hnder the Hnited States Army regulations, the State of Georgia is provided equipment and pay for three cavalry troups, one at Savannah, one at Hinesville, and one at Atlanta. The Governor’s Horse Guard was organized and mustered into service on May 31, 1921. It was hard to organize this cavalry troup, but he finally succeeded in getting enough men to enlist to meet the requirements of the Federal militia regulations. Said cavalry troup is supported by the national government, and furnishes the equal of sixty-five or more mounted police on hand at the call of the city, county, or State, for the protection of property and person. The United States government furnishes thirty-two horses, feeds the same, and allows so much pay monthly for the employment of four men to look after the horses. The thirty-two horses provided by the United States government arrived at Atlanta at 3 o’clock on October 26. They have to be temporarily quartered in stables which are not fitted for the purpose; and unless suitable stables can be erected, which can be approved and accepted by officers of the United States army, the troup will lose the horses. When it is necessary for the entire troup to be called out, the government provides for the hiring of a sufficient number of horses to mount the entire troup. The United States government has already obtained a captain from the regular army, a graduate from West Point, to instruct the cavalry of Georgia; and that officer and the first sergeant from the regular army are now in Atlanta. These officers will constantly inspect the stables under the government’s requirements. These stables have to be kept sanitary in every way. They have to be clean at all times. All refuse from the stables has to be carried away each day; and it is absolutely against the regulations for the stables to be kept in such a manner that there will be any flies around the stables. Under the constant inspection of these two army officers it will be absolutely necessary for the troup to keep the stable in such a condition that it can not be obnoxious to any one. It will be run in such a manner as not' to annoy any one. It will be a protection to the neighborhood in which it is located. There is not a house within 300 feet of the stables.</p> <p>The court, after hearing the evidence and argument of counsel, passed an order denying the application for injunction and dis-' solving the restraining order previously granted. To this ruling the plaintiffs excepted.</p>

. The Court of Appeals certified (in Case No. 12795) tbe following questions: “ 1.

<p>1. The written contract in question being ambiguous, parol evidence was admissible to show that the transaction was one of purchase and sale, and the amount of the consideration; and to apply to the land the description given.</p> <p>2. The contract being for a sale of gin machinery and an interest in land for the purpose of operating the gin at a designated location, upon condition that the location should revert to the grantor when the grantee should cease to use it for that purpose, the grantee had the right to remove the old gin-house and reconstruct on the same location a new house for operating the gin.</p> <p>3. The evidence authorized a finding that later grantees had actual notice of the contract in question.</p>

<p>The Court of Appeals certified questions to which the headnotes constitute, answers.</p>

<p>1. “Where, in an action for land, the defendant is bona fide in possession under adverse claim of title, the mesne profits are to be assessed upon the value of the property as it stood when the defendant’s title accrued, and the plaintiff is prohibited from recovering as mesne profits the increase of income resulting from the improvements made by the defendant in good faith.”</p> <p>2. The court erred in failing to charge the principles just stated, and in overruling the motion for new trial.</p>

Indictment for murder. Before Judge Highsmith. Appling superior court. July 14, 1921. The defendant, being jointly -indicted with two other persons for murder, was put on trial separately, and the jury returned a verdict of guilty, with recommendation that she be punished by imprisonment in the penitentiary for life. The defendant made a motion for new trial, based on the usual general grounds and certain other grounds added by amendment.

<p>Application, for alimony. Before Judge E. C. Bell. Dougherty superior court September 17, 1921.</p>

<p>Claim. Before Judge Wright. ■ Walker superior court. November 10, 1921.</p> <p>W. W. S. Myers, as administrator of B. F. Ellsberry, obtained from the court of ordinary of Walker county an order for the sale of eighty acres of the north half of lot of land No. 281 in the 22d district, 3d section of Walker county, Georgia, as the property of the estate of B. F. Ellsberry; and he advertised the same for sale in pursuance of said order. On October 2, 1917, J. W. Cavender filed a claim thereto. On November 5, 1920, this claim came on to be heard in the superior court of said county. It was admitted in open court that-B. F. Ellsberry held under J. W. Cavender. The claimant having died, his administratrix, Minnie Warrenfells, was made a party in his stead. The claimant introduced the following evidence: Deed dated May 9, 1884, from Susan Hunt to the claimant, embracing the premises in dispute. Here the plaintiff rested. It was agreed by the claimant in open court that the administrator of Ellsberry had regularly obtained leave to sell this land, and was regularly proceeding to sell it under the law.</p> <p>W. W. S. Myers, for his intestate, testified, that he was the acting administrator of B. F. Ellsberry. He found several papers and a lot of receipts among the papers of the intestate, after he was appointed administrator. Among these was a bond for title from J. W. Cavender to B. F. Ellsberry, these two-hundred-dollar notes, and one $100 note signed by B. F. Ellsberry and payable to the claimant. These papers were introduced in evidence. The bond for title from J. W. Cavender to B. F. Ellsberry was dated January 14, 1885. Under it J. W. Cavender bound himself, in the penal sum of $700, to convey to B. F. Ellsberry the premises in dispute upon the payment by the latter of his notes, one due January 15, 1885, for $221.50, with ten per cent, interest from date, and two notes due December 25, 1885, for $100 each, with interest from September, 1885, at ten per cent'., and dated January 14, 1885. This bond for title was recorded November 4, 1920.</p> <p>The administrator of B. F. Ellsberry introduced, as coming from the possession of the latter, the following notes: Two notes dated September 11, 1883, payable the 25th day of December, 1885, to N. A. Keown or order, each for the sum of $100, for part of lot of land No. 291, 26th district, 3d section of Walker county, with interest from date at ten per cent, per annum, and made by B. F. Ellsberry; which notes were transferred to J. W. Cavender on April 20, 1894. Another note, dated January 14, 1885, payable by December 25th after date, to J. W. Cavender or order, for $100, for part of lot of land No. 281, 26th district and 3d section, with interest from September 11, 1883, at ten per cent, per annum. On this note were the following credits: $100, December 29, 1888; $100, undated; February 1, 1890, $50; cash $8.80; 5 gallons of syrup $1.50; barrel of syrup $1; cash $6.30.</p> <p>Frank Ellsberry, for the administrator of Ellsberry, testified as follows: I knew J. W. Cavender and B. F. Ellsberry in their lifetimes. At one time I saw Mr. Ellsberry pay Mr. Cavender $100 in money. He did hot take a receipt for it. It was paid in five twenty-dollar gold pieces. Mr. Cavender claimed that he did not have any receipt then, that he would give it to him later. This was somewhere between 1895 and 1898. It was at Mr. Ellsberry’s house, in front of his gate. Cross-examination: I am a grandson of B. F. Ellsberry. I am not one of his heirs at law, My father is living. Don’t know whether he ever got a receipt or not. Don’t know what he paid that hundred dollars for; suppose it was to go on land.</p> <p>G. W. Smith, for the administrator of Ellsberry, testified: Was acquainted with B. F. Ellsberry and J. W. Cavender in their lifetimes. Heard Cavender state about a hundred dollars that Mr. Ellsberry paid him. Don’t know how long it has been; don’t remember when it was; it was twenty-odd years ago. He never said whether he gave him a receipt for it or not. Cross-examination : Mr. Cavender told me he came by there one Sunday night and Uncle Ben Ellsberry paid him $100 in gold. Me and Mr. 'Cavender had a little talk about it. He did not know whether it was gold or what it was. Said he knew he paid .him, though. He did not say what he paid him that money for. Mr. Cavender was running a store there at Villanow. Don’t know that Mr. Ellsberry traded there. Was not related to Mr. Ellsberry in any way, except I married his niece.</p> <p>W. E. Ellsberry, for the administrator of Ellsberry, testified: B. F. Ellsberry was my father. After his death I examined in his house to find his papers, and found those papers there, which Mr. Myers got. Found these receipts and papers that have been put in evidence. I remember about the two notes payable by my father to Mr. Keown and transferred by Mr. Keown to Mr. Cavender, the two notes now in evidence. They were among my father’s papers in his trunk.</p> <p>The administrator of Ellsberry introduced a receipt given by J. W. Cavender to B. F. Ellsberry for $100 to be credited on note dated November 15, 1889. He likewise introduced another receipt for $50, given by J. W. Cavender to B. F. Ellsberry for $50 dated November 24, 1891. Here the administrator of Ellsberry rested.</p> <p>The claimant introduced in evidence a note for $221.50, dated January 14, 1885, payable one day after date to J. W. Cavender or order, for part of lot of land No. 281 in the 23d district, 3d section of Walker county, Georgia, and signed by B. F. Ellsberry. On this note were the following credits: $10 April 3, 1886, November 24, 1891, January 18, 1896, $5, December 15, 1904, 425 pounds cotton at 10 cents, $42.50, December 17, 1900, $17. The claimant introduced another note for $221.50, dated January 4, 1885, and payable one day after date, to J. W. Cavender or order, for part of lot of land No. 281 in 26th district and 3d section of Walker county, Georgia, at ten per cent, interest from’ date. On this note there were these credits: $50, December 23, 1886; $50, December 18, 1890; $50, December 16, 1893. The claimant introduced a bond for title from N. A. Keown to Benjamin F. Ellsberrjr, dated September 11, 1883, by which Keown obligated to convey to said B. F. Ellsberry the premises in dispute on payment by Ellsberry of the following notes: One for $100, dated September 11, ’83, and due December 25, 1883, without interest; and three notes for $100 each, with interest from September 1, 1883, at eight per cent, from date, and due December 25, 1884; and three notes for $100 each, dated September 11, ’83, with interest from date at ten per cent., and due December 25, 1885.</p> <p>The claimant thereupon moved the court to direct a verdict for him, because the proof showed, uncontradietedly, that the defendant had never paid for this land, was not entitled to any deed, was not entitled to the possession of the land until he paid the purchase-money; and that he could not sell the land until he had first recovered it and had the title vested in him. The court directed a verdict for the claimant.</p> <p>The administrator of Ellsberry made a motion for new trial, on the general grounds'; and by amendment on the grounds, (4) that the court could not direct a verdict, as there was conflict in the evidence; (5) because the title of the claimant to this land was void, because infected with usury; (6) because the court erred in rejecting, when oifer-ed in evidence by the administrator of Ells-berry, a receipt for $38.85, on store account, dated December 18, 1890, and given by Cavender & Shahan to B. E. Ellsberry, on which receipt was this entry: “ Also $50 to be credited on note of J". W. C.,” signed by J. W. Cavender; and in rejecting a receipt dated December 15, 1914, for one bale of cotton of 425 pounds at ten cents per pound, to be credited on note of B. F. Ellsberry, given to the latter by J. W. Cavender; (7) because the court erred in refusing to permit J. P. Shattuck, a witness for the administrator of Ellsberry, to testify that he represented said administrator as attorney at law, that the claimant during his lifetime admitted receiving $100 or more, for which he had given no receipt, and that the claimant said at the time that he did not know whether he paid up the balance for this land or not; claimant objecting to this testimony on the ground that this witness as attorney for said administrator was incompetent to testify to any settlement made by the deceased claimant, which ruling the court sustained and excluded said evidence; (8) because the evidence shows that all of the notes given for the purchase-money of the premises in dispute are barred by the statute of limitations, and are not enforceable, and can not be enforced by way of filing this claim or otherwise, for the reason that no title ever vested in claimant, on account of the usurious rate of interest charged; (9) because there was no proof before the court that Minnie C. Warrenfells was the duly qualified administratrix of the estate of claimant, and as such entitled to prosecute the claim for the premises in dispute. The court overruled the motion for new trial, and error is assigned on this judgment. •</p>

<p>1. Permissive and voluntary waste, which latter must be wilful, on the part of a life-tenant, is, under the Civil Code, § 3666, sufficient to cause a forfeiture of the life-estate to the remainderman. And where a petition sets out both classes of waste as having been committed, and prays for forfeiture and immediate possession in the remainderman, such petition is sufficient to withstand a general demurrer.</p> <p>2. The court did not err in overruling the general demurrer.</p>

<p>The motion for new trial in this case was based upon newly' discovered evidence, which consisted of a single affidavit by a named witness, which tended to show that-the accused was not guilty of the offense of murder, but that the wound which caused the death of the deceased was inflicted by the accidental discharge of a pistol in a struggle between the accused and the deceased after the deceased had attempted to shoot the accused. This affidavit was not accompanied by evidence or affidavits tending to show the residence, associates, means of knowledge, character and credibility of the affiant. Consequently this court will not interfere with the judgment of the lower court refusing a new trial.</p>

Mandamus. Before Judge Hutcheson. DeKalb superior court. February 4, 1922.

<p>Claim. Before Judge Gower. Dooly superior court. Febru- ■ ary 23, 1922.</p>

<p>1. The allowance, rejection, or striking of an amendment to pleading is not a legal ground of a motion for new trial.</p> <p>2. Assignments of error on parts of the court’s charge to the jury, not setting forth what the court said in the instructions thus referred to, present no question for decision.</p> <p>3. Complaint that the verdict is contrary to a specified instruction of the court amounts to a contention that it is contrary to law, and is covered by the general grounds of the motion for new trial.</p> <p>4. The court’s instruction relative to considering the mental capacity of the maker of a deed, in determining the question of undue influence in procuring it, was not erroneous as unauthorized by the pleadings and the evidence. And a correct instruction is not subject to an assignment of error that the court omitted to give in connection with it another correct and pertinent instruction.</p> <p>5. There was no expression by the court of an opinion on any fact at issue, in the instruction relating to the purpose of admitting the testimony with reference to the mental capacity of the maker at times before and after the making of the deed.</p> <p>6. The court’s instruction did not fail, as contended, to limit the right to recover mesne profits, in the event of recovery of land by the plaintiff', to the time when the defendant was in possession of the land.</p> <p>7. The court did not express an opinion that undue iniiuence had been used upon the testatrix, by saying to counsel for the plaintiff, in the presence of the jury, and in reply to a statement by counsel: “There are two questions: one is the mental capacity to make the deed; and the other is undue influence exercised upon her by which the defendant secured the deed by undue influence, such as I have indicated to you.”</p> <p>8. The complaints that the court erred in submitting to the jury the question whether undue influence was exercised to induce the testatrix to execute the deed in question, and in charging on the law of undue influence, are not meritorious.</p> <p>9. The complaint that “ all of the charge of the court . . relative to the question of undue influence was error,” for stated reasons, not setting forth literally or substantially what the court charged, presents no question for consideration.</p> <p>10. An assignment of error on the admission of papers in evidence, not setting them out literally or substantially or attaching copies of them as exhibits properly identified, is incomplete and presents no question for decision. The same is true where the assignment does not state the objection or objections that were presented when the eviaenee was offered, but states that the court erred in admitting it, and that movant contends that its admission was error for reasons stated.</p> <p>11. Assignments of error not referred to in the brief of cormsel for plaintiff in error are treated as abandoned.</p>

Indictment for murder. Before .Judge Graham. Treutlen superior court. October 24, 1921. Davis and three others were jointly indicted.

Equitable petition. Before Judge Thomas. Colquitt superior court. July 20, 1921.

<p>Complaint for land. Before Judge Irwin. Haralson superior court. May 21, 1921.</p>

<p>'Equitable petition. Before Judge Hutcheson. Campbell superior court. July 2, 1921.</p>

<p>"Validation of schoolhouse bonds. Before Judge Blair. Cherokee superior court. September 1, 1921.</p>

<p>1. On the trial of a husband charged with a crime, conversations between him and his wife, when relevant, may be testified to by one who overheard them. Such conversations admitted in evidence in this case were relevant.</p> <p>2. Where a ma'ss of evidence is objected to as a whole, and some of it is competent, such objection is not well taken.</p> <p>3. Statements of an incriminatory character by one accused of crime are admissible in evidence, if freely and voluntarily made, though made to an ofiicer while in his custody and induced by°some trick, artifice, or deception.</p> <p>4-6. The court did not err in admitting the evidence set out in grounds eight, nine, and ten of the motion, over the objections made thereto by defendant’s counsel; nor in refusing to grant a mistrial for the reasons alleged in grounds eight and nine of the motion.</p> <p>7. Evidence of the general bad character of the defendant’s wife was not admissible.</p> <p>8-10. The evidence offered by the defendant, and referred to in paragraphs eight, nine,, and ten of the opinion, was not a part of the res gestae, and was properly excluded.</p> <p>11. Even if a misstatement of law made by counsel in the argument of a ease to the jury can ever be cause for the grant of a mistrial, the language used by the solicitor-general in his concluding argument to the jury, as set out in the eleventh paragraph of the opinion was not, when considered in connection with the judge’s note in approving the ground of the motion in reference to such language, cause for the grant of a mistrial or a new trial.</p> <p>12. The instruction on the subject of reasonable doubt was not error.</p> <p>13. No question for decision is raised in the 24th ground of the motion for new trial.</p> <p>14. Nor was the instruction as to apparently incriminating statements of the defendant error.</p> <p>15. The venue was proved by direct and positive evidence.</p> <p>16. The alleged newly discovered evidence was not of such a character as would likely cause a different result should another trial be had.</p> <p>17. The evidence authorized the verdict.</p>

<p>The rulings made in this ease on former writ of error control the questions now involved. The evidence being without conflict, the court did not err in directing the verdict.</p>

<p>Complaint for land. Before Judge Blair. Forsyth superior court. August 28, 1922.</p>

<p>Petition for injunction. Before Judge Hardeman. Washington superior court. September 7, 1921.</p>

<p>Complaint for land. Before Judge Blair. Cherokee superior court. February 28, 1922.</p>

<p>Specific performance. Before Judge M. D. Jones. Bibb superior court. May 31, 1921.</p> <p>Elton M. Adams as vendor instituted an action against W. L. Moore, J. P. Peacock, and W. H. Peacock as vendees, for specific performance of a contract for the purchase of land. The second paragraph of the petition, as amended, was as follows:</p> <p>“ On May 6, 1920, your petitioner sold to W. L. Moore and J. P. and W. H. Peacock a certain lot or parcel of land in the city of Macon, Bibb county, Georgia, under a contract more particularly describing said property and setting forth the terms and conditions of said purchase, and which contract was accepted in writing by said W. L. Moore, who represented and acted for himself and associates in the negotiations leading up to said sale and in signing said receipt, being authorized so to do by said Peacocks, is in the form of a receipt given by Willingham Loan & Trust Company, authorized sale agents for petitioner, and signed by them, and is as follows: ‘ Macon, Georgia, May 6, 1920. Received of J. P. & W. H. Peacock & W. L. Moore, One Thousand Dollars ($1000.00), being part payment for Adams property on Broadway now occupied by Peerless Paint Company, warehouse in rear of same and sheet metal warehouse occupied by Merritt Company. It is understood and agreed that the brick walls on the north and east sides dividing this property from the property occupied by the Ford Tractor people is a party wall. Consideration being $35,000.00; terms as follows: $4,000.00 to be paid October first, 1920, and then on first of each October thereafter for six years $5,000.00 is to be paid. All notes bearing interest from October 1st, 1920, at 7% payable semi-annually. Taxes and insurance to be prorated from October 1st, 1920. Deed subject to examination.</p> <p>Accepted. Willingham Loan & Trust Co.</p> <p>W. L. Moore. By C. B. Willingham Jr., Agts.’ ”</p> <p>The defendants demurred separately to the petition. The demurrer of W. L. Moore was upon the grounds: (1) That the petition failed to set forth a cause of action. (2) Paragraph 2 of the petition is insufficient for the following reasons: (a) That the instrument relied on as the basis for the action does not appear to be signed by the defendant. (b) It is nothing more than a receipt, and has no binding force, (c) It does-not obligate the said Elton M. Adams to convey the property therein described, and is therefore unilateral, (d) It is not sufficiently definite and certain in its terms and in its description of the land to authorize the court to require specific performance by the defendant, (e) It is •wholly insufficient in law to authorize a decree for specific performance or damages for the breach of the contract. (/) “ The alleged sale of said real estate is void because it was not in writing.” (g) The facts alleged “ do not in law make a joint obligation of this defendant with that of the said .J. P. Peacock and W. H. Peacock.” The demurrers of the other two defendants were identical, and were in substance as set forth above,-except that there was an additional ground of demurrer to paragraph 2 of the petition, this ground being that it appears that the instrument relied on by the plaintiff as the basis of the suit “was executed by W. L. Moore, and that it does not appear that the said W. L. Moore had any authority whatsoever to bind this defendant in the making of said alleged contract.” The demurrers were each overruled by separate judgments entered thereon. All of the defendants united in one bill of exceptions, assigning error as follows: “ To this petition filed by Elton M. Adams, J. P. & W. II. Peacock and W. L. Moore filed a general and special demurrer. After the filing of said demurrer and before the hearing thereof, Elton M. Adams filed an amendment to the petition, which amendment was allowed and ordered filed, at which time J. P. & V. II. Peacock and W. L. Moore renewed their general demurrer to the petition as amended. That said demurrer came regularly on to be heard on the 31st day of May, 1921; that after argument and a consideration thereof the court entered an order overruling the demurrer on each and all of the grounds therein set forth. To this ruling of the court the plaintiffs in error then and there excepted and now excepts and assigns the same as error, on the ground that it was contrary to law.”</p> <p>A motion was made to dismiss the bill of exceptions on the grounds: “ 1. That there were filed in this case in Bibb superior court three separate demurrers, demurring generally and specially; one being filed by each of the three defendants. 2. That there was no joint demurrer filed by said defendants, plaintiffs in error before this court. 3. That after argument the demurrer of each of the three said defendants was overruled and three separate orders taken, one order overruling and being entered on each of said three demurrers. 4. That the bill of exceptions filed by plaintiffs in error in this case, with regard to said three demurrers and the three orders overruling same, is as follows: [the assignment of error in the bill of exceptions as set out above]. 5. That the three demurrers filed individually by the three defendants were not identical; and the grounds of demurrer specified therein were not identical. 6. Defendant in error shows that said bill of particulars is so confused and unintelligible in its terms, that it constitutes no notice to defendant in error or to this honorable court as to which judgment overruling which motion is objected and excepted to.”</p>

<p>Injunction and receivership. Before Judge Kent. Laurens superior court. June 11, 1921.</p> <p>On February 3, 1920, C. T. Beacham sold to J. F. Nobles a described tract of farm land, on which was a dwelling, for $9,000, receiving $500 cash and a promissory note for $8,500 with interest from maturity at the rate of 8 per cent, per annum, payable October 15, 1920. 'The note contained a stipulation to pay “ all costs of collection, including ten per cent, as attorney’s fees, if collected by law or through an attorney, at law.” The vendor executed a bond for title, which was duly recorded. At the time of the sale there was an outstanding loan deed in favor of the International Life Insurance Compaq, to secure a loan of $3,500 to the vendor, for payment of which the vendor remained bound. The agreement was, that, on settlement of the note, the vendee could carry the loan and take credit for the amount thereof, or pay the whole note and the vendor would pay off the loan. The loan was never paid, and there is a judgment outstanding based thereon for principal, interest, and attorney’s -fees, which is declared to be a special lien on the land. Eight days after his purchase Nobles procured a fire-insurance policy for $6,000 on the dwelling, to which was attached a clause making the loss payable tp “ John Hancock Mutual Life Insurance Co. as first mortgagee.” After receiving the note for the balance of the purchase-price of the land, the vendor pledged it to the Dublin and Laurens Bank as collateral security for $2,500. The vendee having failed to pay, suit was instituted on November 16, 1920, by the vendor for the use of the bank, in the city court of Dublin. No demand having been made for a jury trial, the. judge rendered a judgment on December 30, 1920, during the regular December quarterly term of court, for the plaintiff, for principal, interest, and attorney’s fees. Execution was duly issued; and on January 3, 1921, the vendor executed and caused to be recorded a deed to the vendee for the purpose of levying upon the land. On the same day the land was levied on, and also, certain corn, as the property of the defendant in fi. fa., to all of which G. H. Williams interposed statutory claims.</p> <p>Subsequently, on May 19, 1921, Williams and Nobles jointly instituted suit’ in the superior court, returnable to the July term, against’Beacham individually and as a representative and for the use of the Dublin and Laurens Bank, seeking to enjoin further proceedings under the fi. fa., the claim cases, and alleged garnish.ment proceedings; seeking also the- appointment of a receiver to collect alleged insurance for which the garnishment proceedings had issued to impound, and to hold the land and corn until the further order of the court; seeking also a judgment declaring the judgment in favor of Beacham null and void, on the ground that the judge of the city court was without jurisdiction to render it; seeking also to declare void the fi. fa. and levy thereon, on the grounds that such judgment was void, and that, there being a prior outstanding security deed executed by Beacham, his conveyance to Nobles for the purpose of levy did not vest legal title in Nobles so as to give a leviable interest. At an interlocutory hearing on June 11, which was prior to the appearance term, the judge overruled a demurrer to the petition and proceeded with the further hearing of the case. Though the petition was sworn to positively, it was not introduced in evidence. Over the objection that it was irrelevant, the judge admitted in evidence an affidavit of E. G. Simmons, who on oath said: " That he is familiar with land lot No. 216 in the 18th land district of Laurens County, Georgia, that he had the same in charge to sell last winter; that it.is a desirable farm, well located and improved, and one that would sell for a reasonable price if conditions of the county were normal and the management of land uninterrupted; that he could and thinks would have sold the same so as to have protected the interest of the loan companjr, the claims of the Dublin & Laurens Bank, and the interests of C. T. Beacham and J. F. Nobles, if it had all been left to him without interruption from the different parties interested; and that deponent thinks the same thing can be done this coming fall, if placed in the hands of a competent man with sole control and management without interference by the different parties at interest and the officers of the court. Deponent further says that in his opinion a forced sale for cash by the sheriff before the court-house door at this time will mean a sacrifice of the property and in [an?] injustice to some of the parties interested- Deponent further says that the financial and business interest of this section is strained and depressed at this particular time, and that the people are interested mostly in financing the completion of this crop, and that nothing in [is?] doing in the sale of real estate, except at a sacrifice and loss to some one; that he is informed -that property has been offered for sale by public officials of this and adjoining counties without receiving a reasonable bid or offer for same; that deponent has no personal interest in the results of this affidavit, except a true statement of present conditions in this section.”</p> <p>The allegations of the petition as to garnishment proceedings, and as to the existence of funds arising from insurance on the property, were denied in the answer; and there was no evidence to support such allegations. The judge admitted in evidence an unrecorded deed from Nobles to Williams, dated February, 1931, purporting to convey the land, over the objection that it did not contain the .requisite revenue stamps, and was not recorded, and its execution was not otherwise proved. At the conclusion of the evidence the judge rendered a judgment as follows: “After hearing evidence and agreement [argument?] in the above-stated case, it is ordered by the court that the summons of garnishment served on the Atlas Assurance Co.¿ now pending in the city court of Dublin, in case of' C. T. Beacham vs. J. F. Nobles, be and the same is hereby dissolved upon the pay•ment of said policy to the receiver herein named, and said Atlas Assurance Co. is hereby directed to settle said loss and policy with the receiver hereinafter named, and said receiver is hereby directed to report to this court for further instructions as soon as said insurance policy is paid to him. Ordered further that said receiver take charge of lot of land No. 216, 150 acres of claimed G. H. Williams & J. F. Nobles, in the 18th land district of Laurens County, Ga., until further orders of this court, except as to claim of International Life Ins. Co. Ordered further, that all proceedings by C. T. Beacham for use of Dublin & Laurens Bank and individually, now pending in city court of Dublin and in superior court of Laurens County, together with all judgments, executions, levies, claims, garnishments, and acts and remedies of all kind, be and the said are hereby enjoined and consolidated in this one court until further order of this court, except what proceedings may be necessary by the receiver to collect the insurance. Ordered further that A. W. Garrett be and he is hereby appointed as receiver to take charge of said fire-insurance policy for $6000.00, issued by the Atlas Assurance Co. to J. 3?. Nobles, and he is hereby authorized to collect same and make complete settlement with said Atlas Assurance Co., and report same to this court; he is also directed to take charge of 150 acres of said lot of land No. 216 in the 18th land district of Laurens County, Ga., and to hold the same until further order of this court, to manage same, collect rents, and sell same if necessary by direction of this court. It is further ordered and said A. W. Garrett, receiver, give a good and sufficient bond in the sum of $15,000, for the faithful performance of his duties as such receiver, to be approved by the clerk superior court of Laurens County, Georgia. Said receiver to be paid a fee of one hundred dollars for all his service as receiver rendered in said case. This June 11, 1921.” The defendant excepted to this judgment and assigned error on the rulings overruling the demurrer and admitting evidence.</p>

<p>Equitable petition. Before Judge Thomas. Colquitt superior court. April 22, 1921.</p>

<p>Injunction. Before Judge B. C. Bell. Dougherty superior court. July 11, 1921.</p>

Equitable petition. Before Judge Eve. Worth superior court. August 29, 1921. Mrs. Clara 0.

<p>1. Plaintiffs, as heirs at law of their ancestor, can not maintain an action for the recovery of land, when the ancestor died testate, and by his will disposed of the land sought to be recovered.</p> <p>2. Where a testator gave all his real and personal property to his wife for life or widowhood, and directed that at her death the same should be sold, that the expenses of maintaining his wife and the expenses of keeping 1ns farm in repair be deducted from the proceeds of the sale, and that the balance, if any, be equally divided between his children, no title to his lands passed to his children under such devise; and they can not, as legatees under his will, maintain an action for the recovery of such lands.</p> <p>3. If the sale by the administrator with the will annexed was void for the reason assigned by the plaintiffs, about which we express no opinion, the title still remained in him for the purpose of executing the will.</p> <p>4. The court did not err in directing a verdict for the defendant.</p>

Reformation of agreement. Before Judge Meldrim. Chatham superior court. October 24, 1921. Coleman Johnson filed his petition against Lester Green, returnable to the October term, 1920/ of Chatham superior court.

Equitable petition. Before Judge Hammond. Burke superior court. November 21, 1921.

<p>1. One in possession of real estate can not be ousted by a writ of possession ordered by the trial judge in favor of another not in possession, at an’ interlocutory hearing for injunction.</p> <p>2. The plaintiff being in possession of the real estate in controversy, claiming title, and no proceedings having been instituted against him by any one to recover the property or to dispossess him (except by a void order in the present proceeding), he is not entitled to an injunction.</p> <p>3. The plaintiff has no right to have the will of testator construed in a proceeding like the present.</p> <p>í. The court erred in ordering a writ of possession to issue at an interlocutory hearing.</p>

<p>Mandamus. Before Judge Hardeman. Washington superior court. January 9, 1922.</p> <p>This was a petition for mandamus, brought by the Board of Education of Washington County against the Board of Commissioners of Boads and Bevenue of that county, to require the latter to levy a tax of five mills for the support of the public schools of Washington County not included within the limits of the municipalities of Sandersviile and Tennille. The court granted a mandamus absolute, and the respondent excepted. The case was submitted to the presiding judge upon the pleadings and the evidence. The following evidence was introduced by the plaintiffs: “ Extracts from Minutes of Board of Education, dated July 6, 1921. On motion, a county-wide tax of five mills was assessed for school purposes for the year 1921, the board voting unanimously for this levy.” M. B. Tucker testified: “I am a member of the Board of Boads and Bevenues of Washington County, and one of the respondents in this case. The notice, a copy of which is set forth in paragraph 8th of the relators’ petition, was not served on the board on the 7th day of August, 1921. This notice was . served on the 8th day of September, 1921. The board had already officially made and completed its tax levy for the present year at the time the notice was served. However, the notice was served before the commissioners adjourned their meeting that date. We had completed our work, and was preparing to take the matter to the grand jury, when Mr. Davis, the county school superintendent, brought ifi the notice.” The petition for mandamus alleges: “ On the 8th day of September, 1921, the following official notice was given by plaintiff to the defendant, to wit: ‘ It appearing that it becomes the duty of the Board of Education to assess a rate of taxation not to exceed five mills on the dollar, and it also appearing that it is the judgment of the Board of Education that a levy of five mills is necessary for the best interest of the schools, it is hereby ordered that the Board of Boads & Bevenues be in- . structed to levy the said rate of five mills upon the taxable property of Washington County, not included in the corporate limits. of the towns of Tennille and Sandersviile, for the use of the public schools of Washington County for the scholastic year 1921-22, Done by order of the board, this Aug. 7, 1921. T. J. Eulghum, Pres. Thos. J. Davis, Sect.’” The assignments of error are: (1) The original recommendation of the board of education was illegal and void, because it recommended a county-wide tax, while under no view did the board of education have power to recommend such tax except outside of local independent systems, and the board of commissioners of roads and revenues were not required to levy any tax whatever under the language of the recommendation, such tax as recommended transcending the authority of the board of education. (2)'The notice served upon the board of commissioners of roads and revenues does not appear to have been officially authorized by the board of education; and respondents had the right to refuse to levy any tax whatever under same, because it differed from the original recommendation of the board of education, in that the notice as served required the levy of a tax of five mills outside of independent local systems, while the official recommendation was for a county-wide tax. (3) The notice as'served required the levy of a tax for .the scholastic year 1921-22, and it would be illegal to levy a tax for two years or for more than one year. (4) The notice was served after the board of commissioners of roads and revenues had officially made its tax levy on the 8th day of September, 1921; and was too late to require respondents to levy the tax as recommended. (5) The petition for mandamus was not presented to the judge of the superior court until November 2, 1921, after a great many taxpayers had paid their taxes for the year; and the issuance of the writ at that time being nugatory, the same was improperly granted. (6) The hearing upon the petition for mandamus was set for Dec. 5th, 1921; and the issuance of the writ of mandamus at said date was nugatory and too late, because at that time the tax levy had been made and advertised and the tax-collector’s books had been for more than two months open for the collection of taxes. (7) The writ of mandamus was not granted until Jan. 9, 1922, while all taxes were due and paj'able Dec. 20, 1921, and on that date it became the duty of the tax-collector to issue executions against defaulters; and the writ was illegal and void because it required the levy of. a tax for the previous year. (8) From the evidence and the pleadings it appears that the corporate authorities of Washington County have never recommended or consented to such levy, and the authority of the board of education does not arise until the organic law permitting local taxation for public schools is put into effect by official action by the proper corporate authorities-of the county, and for that reason the commissioners of roads and revenues were not required to make the levy; and it was error to make the mandamus absolute. (9) The constitutional amend-, ment of 1919 referred to in the petition (Georgia Laws 1919, p. 66) does not confer upon the board of education authority to fix the rate of taxation, but that authority is conferred by said amendment upon the board of commissioners of roads and revenue, or the proper county authorities, and it is not within the discretion of the board of education to fix the rate. (10) The mandamus, if made absolute, should have required only ■ that the respondents levy a tax, exercising their discretion in fixing the rate between one and five mills.</p>

<p>Equitable petition. Before Judge Hammond. Richmond superior court. January 16, 1922.</p>

<p>Title registration. ‘Before Judge Wright. Floyd superior court. October 4, 1921.</p>

<p>1. The portions of the act of 1911 (Acts 1911, pp. 108, 132; Park’s Code §§ 439(a)-439(oo), known as the drainage act), that provide, “The treasurer of the county in which the proceeding was instituted shall he ex-officio, treasurer of such drainage commissioners,” and “ The official bonds of the tax-collector and county treasurer shall be liable for the faithful performance of the duties herein assigned them,” are not repugnant to art. 3, sec. 7, par. 8, of the constitution of Georgia of 1877 (Civil Code of 1910, § 6437), which provides that “No law or ordinance shall be passed which refers to more than one subject-matter or contains matter different from what is expressed in the. title thereof.”</p> <p>2. So much of section 19 of the act of 1911, supra, as provides that the treasurer of the county in which the proceeding was instituted shall be ex-officio treasurer of the drainage commission, and so much of section 34 of the act as provides that “ The official bonds of the tax-collector and county treasurer shall be liable “ for the duties therein assigned them, are not void as being repugnant to art. 11, sec. 3, par. 1, of the constitution of 1877 (Civil Code of 1910, § 6600), which provides that “Whatever tribunal, or officers, may hereafter be created by the General Assembly, for the transaction of county matters, shall, be uniform throughout the State and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the appointment of commissioners of roads and revenues in any county.”</p> <p>3. The act of 1911 is not void on the ground that it attempts to impose upon the county treasurer duties which extend beyond the territorial limits in which he was elected to serve as such treasurer.</p> <p>4. Section 41 of the act of 1917 (Acts 1917, p. 100), amendatory of the act of 1911, supra, is not void on the ground that, it withdrew and abolished all of the emolument' of the county treasurer as ex-officio treasurer of the drainage commission, and that this amounted to an abolition of the office of ex-officio treasurer of the drainage commission, etc.</p> <p>5. The rate of interest chargeable against a defaulting county treasurer is twenty per cent, per annum after default. The court below erred in sustaining the special demurrer to paragraph 8 of plaintiff’s petition, which in effect holds contrary to this ruling.</p>

<p>Divorce and alimony. Before Judge Meldrim. Chatham superior court. October 17, 1921.</p>

The Court of Appeals requested instructions from the Supreme Court upon the following questions involved in Case No. 12491: 1. “ Where a suit is filed against a partnership composed of two named members, only one of whom enters a defense, and on his motion a nonsuit is granted, and exceptions to the granting of the nonsuit are taken to this court, is it necessary for the plaintiffs to name as a party defendant to the writ of error the partner who did not defend? 2. “If the…

Petition for injunction. Before Judge Sheppard. Long superior court. November 12, 1921. The County of Long was created entirely from territory formerly embraced in Liberty County. In 1896, by recommendation of the grand jury, the alternative road law was adopted in Liberty County, and was in force in that county when the County of Long was created by constitutional amendment in 1920.

<p>Equitable petition. Before Judge Tbomas. Colquitt superior •court. January 20, 1922.</p>

<p>Petition for injunction. Before J uclge Meldrim. Chatham superior court. December 9, 1921.</p>

<p>Petition for injunction. Before Judge Boop. Carroll superior court. May 16, 1922.</p>

Claim. Before Judge Pendleton. Fulton superior court.' November 3, 1921. An execution in favor of the Central Bank and Trust Corporation against Joseph L. Dennis was levied on a described tract of land as his property, to satisfy said execution. Mrs. Willie Dennis interposed her claim to this property. This execution issued-from, the city court of Atlanta on November 7, 1917. The claimant claimed under a deed of gift to h§r from her husband,.

<p>1. The defendant on conviction filed a motion for a new trial, four grounds of which were based on alleged newly discovered evidence as to prejudice and bias of named jurors. Movant contends that the affidavits attached to the counter-showing cannot be considered by this court, because the same were not filed until three days after the motion was overruled, and because the same had never been made a part of the record, nor attached to the motion for a new trial, nor made a part of the brief of evidence or the bill of exceptions. The case being for decision by a full bench of six Justices, who are evenly divided in opinion on the question as to whether the court could consider the answer of the solicitor-general together with the affidavits attached as exhibits, three of whom, Eisii, C. J., Beck, P. J., and Atkinson, J., being of the opinion that the same could not be legally considered, and three of whom, Hill, G-ilbekt, and Hines, JJ., being of the contrary opinion, and holding that when considered no abuse of discretion appears in the judgment overruling the motion for a new trial, the judgment of the court below 011 this point stands affirmed by operation of law.</p> <p>2. There was an additional counter-showing ■ by means of having witnesses summoned before the judge presiding in the criminal division of Eulton superior court, where they were examined under oath; and their evidence was, by order of such judge, made a part of the record, ordered filed, and was so filed, and appears in this record as specified in the bill of exceptions. At the hearing upon the motion for new trial no objection was offered to the introduction of this testimony. No question is presented for decision as to the consideration of this evidence.</p> <p>3. The court did not err in the following charge to the jury: “If a man makes up his mind to kill another unlawfully, and executes the intention, then that is a case of express malice connected with the killing, and that is a manifest case of murder.”</p> <p>4. Error is assigned on the following charge to the jury: “ A reasonable doubt, of course, is a doubt that has arisen or grown out of the consideration of the evidence in the case. If the evidence, upon a fair and full consideration, leaves in the minds of the jury no reasonable doubt, then the evidence is sufficient to authorize a conviction. If the evidence satisfies your minds to a reasonable and moral certainty, the evidence is sufficient.” The criticism is that this charge left out of consideration the defendant’s statement, and in effect instructed the jury that the reasonable doubt must grow out of the evidence alone or the lack of evidence. The charge is not subject to the criticism made, and no error is shown.</p> <p>5. Error is assigned on the following charge to the jury: “The definition of voluntary manslaughter is an intentional killing, upon a sudden heat of passion; that is, if the passion, the existing of the passion, may be or is caused by some actual assault upon the person killing, or an attempt to commit a personal injury upon the person killing, or other-equivalent circumstances sufficient, in the opinion of the jury, to justify the excitement of passion and to exclude all idea of malice.” The criticism is thajt the charge was not an accurate definition of the offense of voluntary manslaughter, and that it was not in the language of the statute defining that offense, and that the language used was confusing and not easily understood by the lay mind. The charge contained the substance of the definition of voluntary manslaughter as stated in the Penal Code; and no error is shown.</p> <p>6. Error is assigned on the following charge: “ If the killing was not done with a motive of that sort, but was done purely by reason of passion excited in him on account of disproportionate violence, or the unreasonable violence, under the circumstances employed by the arresting-officer, or the deceased in this case, then you may consider the killing as being reduced to voluntary manslaughter.” The criticism is that this charge was error, because the language was inaccurate, and because it precluded the jury from giving due weight and consideration to material circumstances in the ease, the effect of which, in their minds, might have been to reduce the crime from murder to voluntary manslaughter. It is not pointed out in what respect the language is inaccurate, nor is there any statement of what material circumstances were excluded from the consideration of the jury. Therefore no error is shown in this ground of the motion.</p> <p>7. Movant complains that the court erred in refusing a written request, duly presented, to give in charge to the jury the following: “Manslaughter is the unlawful killing- of a human creature, without malice either express or implied, and without any mixture of deliberation whatever, which may he voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection.” Under our view of the evidence, the refusal to charge the jury as requested in this ground was not error. The court did submit the issue of voluntary manslaughter under instructions which were fair and legal, embodying in substance the principles requested; though that issue was not involved under the evidence or under the statement of the defendant.</p> <p>8. Movant complains that the court erred in refusing a written request, duly presented, to give in charge the following: “If you believe from the evidence that just prior to the alleged -shooting of Irby 0. Walker, deceased, by the defendant, that the defendant 'had committed a felony in the presence of the deceased, and was attempting to escape from the -place of its commission, the deceased had a right to arrest the defendant, either with or without a warrant; and if you believe from the evidence that the deceased did attempt to arrest the defendant, and . that'the defendant, in order to prevent being arrested, shot and killed the deceased, he would be guilty of murder. But if you believe that the deceased assaulted the defendant, or made an attempt to inflict a serious personal injury upon him, or if you believe that the conduct of the deceased towards the defendant, and the manner in which he seized him, if he did seize him, was such as to lead the defendant to believe that the deceased intended then and there to inflict a serious personal injury upon him instead of to arrest him, and the defendant shot the deceased under those circumstances, and without malice, he would be guilty of voluntary manslaughter.” The court properly refused this request, the same not being applicable under the evidence or the statement of the accused.</p> <p>9. Movant complains that the court erred in refusing a written request, duly presented, to charge the following: “ If the evidence adduced to establish the homicide presents two conflicting- theories, one of malice and the other the absence of maliee, it becomes a question of fact to be decided by .the jury as to which aspect of the evidence is the real truth of the occurrence; and if you believe beyond a reasonable doubt that the defendant is guilty of either murder or of voluntary manslaughter, but at the’same time have a reasonable, doubt as to which of these offenses he is guilty of, it would then be your duty to give him the benefit of the doubt and find him guilty of the lower grade of the offense, to wit, voluntary manslaughter.” The court submitted the issues of murder and voluntary manslaughter in language more favorable to the accused than the evidence required, and there was no error in refusing this request.</p> <p>10. Movant complains that the court erred in giving the following charge to the jury: “You hear the evidence; you are citizens of this county; the jury is supposed to know what ought to be done with reference to fixing- the punishment; the court has no suggestion to'make to you with reference to that; you may consider what the object of punishment is, consider all the facts and circumstances of the case, circumstances of mitigation or palliation, or circumstances of aggravation,' anything that you think ought to be considered as bearing upon the question of wliat punishment you should fix.” The case being for decision by a full bench of six Justices, who are evenly divided in opinion on the question as to whether the foregoing charge was error, three of whom, Eisii, C. J., and Atkinson and Hikes, JJ., being of the opinion that the charge was error, and three of whom, Beoií, P. J., and Hill and Gilbert, JJ., being of the contrary opinion, the judgment of the court below refusing a new trial on this issue stands affirmed by operation of law.</p> <p>11. Tbe evidence amply authorized the verdict.</p>

<p>Equitable petition. Before Judge Boop. Troup superior court. June 8, 1921.</p>

Equitable petition. Before Judge Searcy. Butts superior court. July 20, 1021. Mrs. Pi. W. Mays, as administratrix of the estate .of Dr. E. W. Mays, deceased, filed a petition containing two counts, alleging substantially the following: In the latter part of 1910 Dr. Mays, a widower, began to visit the plaintiff, a single woman. Soon afterward Dr. Mays proposed marriage, and the marriage occurred on September 28, 1911. Dr. Mays died intestate on December 9, 1918.

<p>Construction of will. Before Judge Summerall. Coffee superior court. October 13, 1921. (See 151 Ga. 523.)</p>

<p>1. Where a testator, owning land lot No. 61 in the sixth district of Crawford county, devised to his son, H. C. Mathews, 75 acres lying on the east side of said lot; to his daughter, Clyde B. Mathews, 25 acres, being in the’center of the lot, and bounded east by the land given to said son, and west by lands given to her sister, Maude R. Mathews; and to his daughter, Maude R. Mathews, 25 acres of land on the west side of said lot, and being all of said lot except a tract including a fish-pond and the two tracts so devised to H. C. Mathews and Clyde B. Mathews: Maude R. Mathews, under said devise, is entitled to all of the land embraced in said land lot, with the, exception of the three tracts excepted from the devise to her.</p> <p>2. Where a particular description is repugnant to the general description of a devised tract of land, the former yields to the latter, and the particular description will be treated as surplusage, under the maxim falsa demonstratio non nooet.</p> <p>3. Under the pleadings and the evidence the court erred in directing a verdict for the defendant.</p>

Indictment for rape. Before Judge Wright. Floyd superior court. December 3, 1921. The defendant was convicted of rape, with a recommendation to mercy; and he excepted to a judgment refusing his motion for a new trial.

<p>Indictment for murder. Before Judge Wright. Floyd superior court. March 11, 1922.- ■</p>

Equitable petition. Before Judge Malcolm D. Jones. Bibb superior court. July 29, 1921. A petition for rescission and prayer for accounting was filed on November 9, 1920, by complainants in the court below, Peacock, Joel, and Scott, against Mrs. Alice L. Turner, executrix of the estate of A. W. Turner, deceased.

<p>Indictment for murder. Before Judge ULighsmith. Appling superior court. April 1, 1922.</p> <p>William O’Berry and Onley O’Berry were jointly indicted and tried for the murder of Lee O’Berry. Tlie jury returned a verdict of guilty as to both, and recommended them to the mercy of the- court. A motion for new trial was overruled, and the defendants excepted.</p>

<p>1. Punishment is prescribed for a violation of section 270 of the Penal Code of 1910, by section 271.</p> <p>2. The office of a policeman of the City of Atlanta is embraced in the expression “ office of government or of justice,” within the meaning of section 270 of the Penal Code of 1910.</p> <p>3. A policeman of the City of Atlanta -is an “ officer of this State,” within the meaning of section 271 of the Penal Code of 1910.</p>

<p>Application for mandamus. See DuPre v. Slate, ante, 798.</p>

<p>1. Where legatees under a will institute- proceedings to have a named executor removed and one chosen by themselves appointed in his place, and such executor is removed and the person so chosen by the legatees is appointed as his successor, though the appointment of the last named is void because of a failure to comply with the requirements of the law in regard to the removal of one executor and the appointment of his successor, yet the person named as successor to the named executor becomes in fact, upon receiving and taking charge of the assets of the estate, the agent of the legatees and manager of the estate. And where such successor of the executor received certain shares of stock which the executor had bought without authority to do- so with the money of the estate of his testator, and in consequence of the unauthorized purchase of such stock the legatees would have had the right, within a reasonable time, to repudiate the purchase, refused to accept it, and hold the executor and his bondsmen responsible for the amount of money thus invested without authority in the stock, they could not, after they had knowledge of the purchase, which they received in a short time after the appointment of the successor of the executor, retain the stock for an unreasonable length of time and thereby take the chance of its becoming a profitable investment, and then, after the lapse of such reasonable time, return the stock and recover the money invested therein when it became apparent that the stock had become worthless while in the hands of their agent.</p> <p>2. None of the other rulings made by the court require a reversal of the judgment.</p>