Volume 157 — Georgia Reports

<p>Equitable petition. Before Judge Blair. Forsyth superior court. February 20, 1923.</p> <p>The following is a copy of the material parts of the deed in question:</p> <p>“This indenture, made this twenty-second day of December, eighteen hundred and seventy-five, between Samuel Stephens of the first part, and Andrew L. Keith and his wife, Eliza Ann H. Keith, of the second part, all of the county and State aforesaid, witnesseth: That for and in consideration of the sum of twenty-five hundred dollars to the said party of the first part paid, the receipt whereof is hereby acknowledged, that is one hundred and fifty dollars paid by A. L. Keith and twenty-three hundred and fifty dollars given to them, the said parties of the second part, as the children of the said party of the first part, hath bargained, sold, and conveyed unto the said parties of the second part all of the following tracts of land, except all mines and mineral and full mining privileges, namely: [describing seven lots containing two hundred acres of land in the fourteenth district and first section of Eorsyth County]. To have and to hold to them and to their children and assigns, to their own proper use, benefit, and behoof forever in fee simple; and the said party of the first part himself, his heirs and assigns, unto the said parties of the second part will warrant the right and title and forever defend the same against themselves and against the lawful claims of all other persons whatever.”</p> <p>The construction of the deed was the one issue for determination. It was agreed that whatever interest Mrs. Eliza Ann H. Keith had in the land in question has been divested by a sheriff’s deed under a fi. fa. against her; and the petition in the present case was brought to procure an adjudication as to the interest of her children. It is admitted that these children have an interest in the land as heirs of their father, whose interest was not subject to the fi. fa. against their mother; but the question presented is whether these children originally took an interest for themselves under the terms of the deed from Samual Stephens. The trial judge held that the deed conveyed title only to Andrew L. Keith and Eliza Ann H. Keith, and, accordingly, that Claud Chastain had title to a thirteen-twenty-fourths undivided interest in the land described in the petition, as the former property of Eliza Ann H. Keith purchased by him at sheriff’s sale, and that W. A. Fields was the owner of a one-twenty-fourth interest in the land, as the share of J. Looper Keith, purchased by said Fields at sheriff’s sale under an execution against J. Looper Keith. The present writ of error challenges the correctness of the judgment of the lower court.</p>

Petition for injunction. Before Judge Ellis. Fulton superior court. January 26, 1923.

The Court of Appeals certified the following question (in Case No. 13891): “Where a bond is given by a contractor for the doing of public work, payable to a county of this State, with a compensated bonding company as surety, conditioned for the faithful compliance by the contractor’with the terms and conditions of his contract with the county, so as to indemnify and save harmless the said county from all cost, expenses, damages, injury, or loss from the execution and…

<p>Petition for injunction. Before Judge Custer. Grady superior court. April 9, 1923.</p>

<p>Motion to set aside judgment. Before Judge J. B. Jones. Habersham superior court. March 8, 1923.</p>

<p>Murder. Before Judge Mathews. Bibb superior court. March 16, 1923.</p> <p>Jake Slocumb was charged with the crime of murder by shooting Harrison Goodrum with a pistol and causing his death. The jury returned a verdict finding the defendant guilty, and recomr mending him to the mercy of the court. The exception is to the judgment ^refusing the defendant’s motion for a new trial. The evidence shows that the tragedy occurred late Sunday afternoon, in front of Cody’s Ice-Cream Parlor in the village of Tindallfield near the City of Macon, in Bibb County. The defendant fled, and after two years was arrested in New Jersey and brought back for trial. Guy Goodrum, brother of Harrison Goodrum, the deceased, testified as follows. Sloeumb and Harrison had had a difficulty earlier in the evening at a near-by park, which witness did not see. Witness was present at the second difficulty, the one that resulted in the homicide. Others present in front of the store besides Harrison were John Fountain, Ottis Horton, and J. L. Holt, while Eobert Lamar was in the store. Harrison was seated on a bench, and the others were standing. Jake Sloeumb approached to within about seven feet of the party, coming up from Elizabeth Street, and stopped by a China tree. “He leaned against the tree, with his hand in his right front pocket. My brother stood up just the time he saw Jake. My brother says, 'Jake, you threw a brick at me/ and Jake says, 'Yes--it, I throwed it/ and Jake then out and went to shooting with a 38 pistol; he got the pistol out of his right front pocket. He shot twice. My brother never put his hands on Jake. My brother had no weapons of any kind, and made no effort to hurt Jake, . . but tried to reach Jake’s gun before it fired, but did not get his hand on it. The first shot hit my brother in the right hand about the palm, the bullet going in on the inside, and the next shot hit him about the middle of the chest.” On cross-examination the witness testified. “Horton and Fountain were sworn before the coroner’s jury. All of them were under 21 years old at the time of the shooting. My brother and the defendant had an argument down at the Park before they came there. I was not present at that time, but I saw the last difficulty. My brother did not start towards the defendant. I did-not testify before the coroner’s jury he advanced upon him. . . I testified before the coroner’s jury: . . 'I was sitting in front of Cody’s Ice-Cream Parlor in Tindallfield, with my brother, Harrison Goodrum, Johnnie Fountain, and Odis [Ottis ?] Horton, when Jake Sloeumb came up and leaned against a chinaberry tree about three feet from where we [were?] sitting, and my brother said to Jake, 'You throwed a bottle at me/ and Jake said, 'Yes, I threw the bottle at you/ I did not say, 'My brother got up and started towards Jake/ I did say, 'Jake then drew the gun from his right front pants pocket and shot my brother twice.’ I reckon my mind was fresher two years ago when I testified than it is now. I did not testify before the coroner that Jake ran and my brother followed him. I did swear, 'Jake ran off, and my brother went back to the ice-cream parlor.’ I did not hear Fountain’s testimony before the coroner’s jury. I am about 19 years old now. I don’t know what the fuss started about. They had a fuss at the park before the shooting. My brother might have been mad with Jake about throwing the bottle at him. When my brother got after Jake about throwing at him he stood right where he was; he didn’t move.”</p> <p>Eobert Lamar testified: “Harrison walked up there just a minute before Jake got there. Jake came around the front part, and Harrison walked about 25 feet from the place, and Jake caught up with him, but I didn’t hear any words; but when Jake walked up there I heard the report of the gun, and I hollored at Jake, and he broke and run, and Harrison walked back with both hands up, and says, ‘Lord, he has killed me.’ . . I was about 25 feet from them; it was a 50-foot lot, and they were about the middle of it. I did not hear them say anything. I did not see any scuffle or scrambling before the shooting.” On cross-examination the witness testified: “I don’t know what happened at the park. I have stated all I know. Neither of them seemed to be mad when they came up there. I did not hear Harrison ask Jake if he threw a bottle at him. I was sitting down out there talking with all the boys. I cannot recall the names of all the boys there, but I was talking to Johnnie Fountain. There were several boys there. . . I did not hear them say a word. I did not see Harrison grab Jake in his shirt. . . Harrison did not follow Jake a step. . . At the time of the shooting it was ‘Cody’s Ice-Cream Parlor.’ Harrison was sitting on a, bench, but when he saw Jake coming he got up and walked to the middle of the lot, and after he was shot he came back and sat down on the bench and fell off of it.”</p> <p>The defendant made a statement before the jury, in substance as follows: Defendant and Harrison with three others formed a party that went from the city on a street-car to the park. While there the others drank whisky, and Harrison assaulted defendant and cut him on the arm with a razor. The party returned, and after leaving the street-car Harrison twice more assaulted defendant and threatened to kill him. Defendant remained a short time at his home, and then went to “ Cody’s.” When he got there Harrison again assaulted and chased him, cutting him in the arm, when he shot in self-defense to save himself. “The first shot was made in front of his door, and the next shot was in the vacant lot, he was chasing me so.” The defendant then introduced the testimony of Johnnie Fountain, taken before the coroner’s jury, the witness having since died, which included the following: “I was. sitting on a bench in front of Cody’s Ice-Cream parlor, . . with Harrison Goodrum, talking to him, when Jake Slocumb came up and stood by the post about 3 feet from us. Harrison asked Jake why he threw the brick at him, and Jake made no answer-Harrison then got up from where he was sitting, grabbed Jake in his shirt. Jake snatched aloose from Harrison, pulled a pistol from his bosom, and shot Harrison; the first shot hit him in the hand, the second shot hit him [his?] breast. Jake then ran off. Harrison walked about 10 feet and said, 'Boys, that got me,’ and sat down on the bench. Jake seemed to be very angry when he came up. I heard that Jake' and Harrison had had some trouble at Ocmulgee Park a few hours before they met in Tindallfield. I don’t know of my own knowledge anything of this trouble. Harrison had no weapon when the shooting occurred; both boys were about 18 years old.”</p> <p>The defendant also introduced the evidence of Guy Goodrum, taken before the coroner’s jury, which included the following: “I was sitting in front of Cody’s Ice-Cream parlor, . . with my brother, Harrison Goodrum, Johnnie Fountain, and Odis Horton. . . My brother said to Jake, 'You throwed a bottle at me, didn’t you?’ and Jake said, 'Yes, I threw a bottle at you.’ My brother then got up and started towards Jake. Jake then drew a gun from his right front pants pocket and shot my brother twice; the first shot hit him in the left hand and the second shot in the breast; after my brother was shot in the hand he made at Jake and ran about 10 feet, when Jake turned and shot the second time. Jake than ran off, and my brother went back to the ice-cream parlor and laid down. I don’t know anything of the trouble at Ocmulgee Park. My brother had no weapon at the time of the shooting.”</p>

Validation of schoolhouse bonds. Before Judge Custer. Baker superior court. November 11, 1922.

<p>Certiorari; from Court of Appeals. 30 Ga. App. 126.</p>

Equitable petition. Before Judge Custer. Dougherty superior court. April 23, 1923. E. L. Gordy, doing business under the trade name of E. L. Gordy Lumber Company, C. D. Smith of Albany, Dougherty County, Georgia, and John W. Shiver of Americus, Sumter County, Georgia, brought an equitable petition and alleged in substance the following: Defendants John D. Pope and S. S. Bennet are residents of Dougherty County, Georgia, practicing law under the firm name of Pope & Bennet.

Equitable petition. Before Judge J. B. Jones. Union superior court. April 21, 1933. In 1909 the Secretary of State issued his certificate, under the provisions of the Civil Code (1910), §§ 3363 et seq., for the incorporation of the Union County Bank. The minimum authorized capital stock was $35,000, divided into 350 shares of the par value of $100 each. One hundred and fifty shares aggregating $15,000, were subscribed and paid for in full.

<p>Appeal from probate of will. Before Judge Hodges. Madison superior court. April 2, 1923.</p> <p>James F. Colbert executed his will on March 23, 1914, and died on April 8, 1922. Mrs. India Colbert Pitner and Mrs. Ouida Colbert Collier, daughters of the testator, were nominated executrixes. At the time the will was executed E. A. Colbert, a son of the testator had died leaving a widow and one child, Margarette Colbert. The widow married again, and thereby became Mrs. S. B. Sims. Item two of the will provided: “My granddaughter Margarette Colbert, the only child of my beloved son Earl Arnold Colbert, deceased, having been amply provided for, having inherited an ample estate of my son Earl Arnold Colbert, which was given him during his lifetime, and in said division my beloved son Earl Arnold Colbert having received a greater amount in value than any of my other children, I hereby give to my granddaughter Margarette Colbert, out of my estate, the sum of five hundred & no/100 ($500.00) dollars, the same to be paid to her after my wife's death or marriage, provided my granddaughter is then 21 years of age. If my granddaughter Margarette Colbert is not 21 years of age at the death or marriage of my beloved wife, then this amount at that time is to be paid over to Walter Pitner, my son in law, to be by him held for my granddaughter Margarette Colbert, without interest, until my said granddaughter shall reach the age of 21 years. If my said granddaughter should die before she is 21 years of age, then this bequest to her is to revert to my estate, and become a part of the corpus of the same, and be divided as the remainder of my estate. If my granddaughter should die before my wife or before my wife should marry again, if she should marry again, then and in that event this bequest shall revert to my estate, and be divided between the other heirs of my estate as the other property of the same is divided. With the exception as is provided in this item of my will, I do not desire that my granddaughter Margarette Colbert shall share in the distribution of my estate, and to have no further interest therein.”</p> <p>When the will was propounded for probate, Margarette Colbert, appearing by her mother, Mrs. Sims, as next friend, filed a caveat. A judgment was rendered by the court of ordinary setting up the will, and from that judgment an appeal was taken to the superior court. Grounds three, four, and six of the caveat were as follows: (3) “For that the said J. F. Colbert executed the said pretended will under a mistake of fact as to the conduct of this caveator. In 1912 the said J. F. Colbert was guardian for this caveator, who was then a child seven years old. The mother of caveator brought a proceeding before the ordinary of Madison County, to have said J. F. Colbert -removed and herself appointed guardian, this proceeding being predicated upon the grounds of waste and incapacity to manage the property, and the purpose of the said J. F. Colbert to sell certain lands. This case resulted in a compromise under the terms of which the said J. F. Colbert resigned as guardian and soon after-wards executed this pretended will. While this caveator was a child and knew nothing of what was going on, the said J. F. Colbert, in executing the paper being offered, did so under the belief that the caveator was in some way responsible for said proceeding in said court of ordinary; and thus under the influence of a mistake of fact as the conduct of this caveator, who was an heir at law, and in consequence thereof, said pretended will is inoperative in so far as this caveator is concerned.” (4) “For that the said J. F. Colbert executed said pretended will under a mistake of fact as to what this caveator had heretofore received. He recites in the second item of his will thatf My granddaughter Margarette Colbert, the only child of my beloved son Earl Arnold Colbert, deceased, having j)een amply provided for, having inherited an ample estate of my son Earl Arnold Colbert, which was given him during his lifetime and in said division my beloved son Earl Arnold Colbert having received a greater amount in value than any of my other children, I hereby give to my granddaughter Margarette Colbert out of my estate the sum of five hundred and no/100 ($500.00) dollars, the same to be paid to her after my wife’s death or marriage, provided my granddaughter is then 21 years of age.’ Whereas in fact the property given to the father of caveator was not property of J. F. Colbert at all, but it was the property passing under the will of S. W. Colbert, in which J. F. Colbert at best had only a life-interest. At the time he gave to Earl Colbert the property mentioned he at the same time gave to his other two children an equal amount of property, all of said property being that passing under the will of S. W. Colbert, in which J. F. Colbert had no interest except a life-interest in the home place; and the said J. F. Colbert therefore had given nothing to caveator’s father. In executing the paper being offered as a will the said J. F. Colbert had been misled and acted under a mistake, believing that he had in fact made provision for his son Earl Colbert, and through him caveator, his granddaughter. . . ” (6) “Said paper being propounded was executed by the said J. F. Colbert because of his dislike to caveator’s mother, Mrs. S. R. Sims, and because of that dislike and his malice towards her he executed the paper in question for the purpose of punishing caveator through her mother. Such a degree of malice amounts to insanity and destroys the capacity to make a will; and said paper having been executed under the influence of such prejudice and insanity, the same is void. And all this the caveator is ready to verify.” This was amended by alleging: “Testator brooded over his hatred for her mother, and the wrong he imagined she had perpetrated on him in having him removed as guardian for caveator, until he became insane on the subject. And he was a monomaniac on said subject. That the pretended will was executed as. a result of said monomania, and is to that extent void.”</p> <p>A demurrer was filed, and the foregoing grounds of caveat were stricken on demurrer; to which ruling no exception was taken. The remaining grounds of the caveat were as follows: (1) “For that said J. F. Colbert, at the time of making said pretended will, was not of sound and disposing mind and memory.” (2, as amended) “For that the said J. F. Colbert did not execute the said pretended will freely and voluntarily, but was moved thereto by undue influence and persuasions over him by the legatees mentioned in said paper, other than this caveator; and it is therefore not his will. . . Mrs. Ouida Collier, one of the executors of the will, lived in a few hundred yards of her father, and she saw him daily. She was desirous of getting the property of her father for herself and children, and to leave caveator out. She asked her father to make a will cutting caveator out; this request she frequently made. She represented to her father that he had already given caveator’s father-more than he had the others, and he should leave caveator out. This continued until testator accepted the statement as facts, and the will of said daughter was substituted, and the proposed paper or will is the offspring. Testator, being old and feeble and desiring repose, was unable to resist the statements of his daughter, had he tried.” (5) “At the time the said J. F. Colbert executed the paper being propounded, he was then an old man more than seventy-live (75) years of age. Old age and the weakness of intellect resulting therefrom had reached a point where testamentary capacity was gone, evidenced by the fact that the paper being propounded does not make a reasonable disposition of the estate of the said J. F. Colbert, he in fact giving all his property amounting to several hundred thousand dollars to his two children and their children, and giving this caveator nothing except $500. The relationship existing, as well as the personal relationship, should have prompted the said J. F. Colbert to have treated his grandchildren all alike, had his testamentary capacity still existed.” On the trial, after both sides had concluded evidence, the judge directed a verdict setting up the will. The caveatrix made a motion for new trial, which was overruled, and she excepted.</p>

<p>1. Under the evidence in the case the jury were authorized to find that the note sued upon and the security sought to be foreclosed were executed under such duress as to render them void -in the hands of any one participating in the acts constituting the duress or cognizant thereof.</p> <p>2. A corporation is not to be charged with notice of facts of which its vice-president acquires knowledge while dealing in his private capacity and in his own behalf with third persons; nor is knowledge on his part thus acquired imputable to the corporation, when, acting through another official, it deals with him at arm’s length as with any other individual representing himself alone.</p> <p>3. The exception to a charge of the court touching the effect of duress upon the validity of the note and security deed to enforce which the present suit was brought, on the ground that the court did not in that connection state to the jury that the owner and holder of the note would not be affected by the fact of duress unless lie had knowledge cr notice of it, is without merit in view of the instructions upon that subject in another part of the charge.</p> <p>4. A portion of the charge excepted to in one ground of the motion is a mere fragment of a sentence, which does not state any principle or rule of law; and for that reason the exception is without merit.</p>

Equitable petition; intervention. Before Judge Franklin. Richmond superior court. March 23, 1923. On January 25, 1921, Sam Denny brought his petition to the superior court of Richmond county, against the Jefferson Insurance Company, a foreign corporation, for recovery of an amount alleged to be due on account of a sustained loss covered by a policy of fire insurance issued by that company.

<p>Petition for injunction. Before Judge Highsmitb. Jeff Davis superior court. ' May 26, 1923.</p> <p>The exception is to a judgment refusing a temporary injunction to prevent a vendor of a hotel from operating another hotel in the same town, in violation of an alleged parol agreement not to engage in the hotel business in that town so long as the vendee should use the property purchased in conducting a hotel. On the hearing there was evidence tending tó show the following: On July 16, 1921, the owner of a hotel, who was operating it as proprietor, agreed to sell the property and business for a stated price payable partly in cash and the balance at stated intervals. The cash payment was made, and promissory notes were given for the deferred payments. The vendor executed a bond for title, which described the realty and immediately following described the personalty. The description of the realty was: “A certain tract or parcel of land lying and being in the City of Hazlehurst, the same being a portion of lot of land number-502 in the 2nd land district of Jeff Davis County, Georgia, and being more fully described as follows [giving a description of the land by metes and bounds]. The tract herein conveyed being the tract on which is located the two two-story frame houses commonly known as the Pierce Hotel and Pierce Hotel Annex, and being the same land described and set forth in the following conveyances [giving a list of conveyances]. References to all of said conveyances herein named for the purpose of being a more accurate description.” The description of the personalty was: “Any and all furniture and furnishings now located in and connected with said Pierce Hotel and Pierce Hotel Annex, the same consisting of bedsteads, springs, mattresses, sheets, pillows, pillow-cases, rugs, art squares, bureaus, washstands, curtains, shades, bowls and pitchers, show-cases, table-cloths, napkins, dishes, and other dining-room furniture, stoves, pots, kettles, skillets, and other kitchen furniture, and all and any furniture, furnishings, and equipment and accessories belonging to and connected with said Pierce Hotel and Pierce Hotel Annex; all of which is fully described in a certain inventory this day made.” It was admitted that the inventory “merely contained a list of articles of furniture, linens, and fixtures in the Pierce Hotel and Pierce Hotel Annex.” The bond for title was in the usual form, and was conditioned to convey the property on payment of the described notes. On the same day a separate paper was executed in duplicate between the parties, the provisions of which follow:</p> <p>■ “1. That whereas the said party of the first part has this day sold and delivered to the said parties of the second part a certain tract or parcel of land lying and being in the said City of Hazlehurst, Georgia, the same being a portion of lot of land Number 502 in the second land district of Jeff Davis County, Georgia, and being the tract upon- which is located the two two-story buildings commonly known as the Pierce Hotel and Pierce Hotel Annex, and has also sold and delivered to parties of the second part all of the furniture, furnishing, and equipment belonging to and connected with said Pierce Hotel and Pierce Hotel Annex, all of which will appear by reference to a certain bond for title this day executed and delivered by said party of the first part to said parties of the second part.</p> <p>“2. And whereas said parties of the second part have this day paid to said party of the first part the sum of $4500.00 in cash, and have executed and delivered to said party of the first part their promissory notes for the sum of $17,500.00, all of said notes being dated of even date of this contract, and the same beifig for the amount and maturing on the dates as follows: note maturing September 1st, 1921, $1500.00; note maturing July 16th, 1922, $6000.00; note maturing July 16th, 1923, $5000.00; note maturing July 16th, 1924, $5000.00; and each of said notes bearing interest from date at the rate of 8% per annum, and stipulating for ten per cent, attorney fees in the event the same is collected by law or through an attorney at law.</p> <p>“3. It is agreed between both parties to this contract that said party of the first part should deliver possession of both the real and personal property hereinbefore referred to, to said parties of the second part on this date; but the title to said personal property as well as said real property shall remain vested in the said party of the first part until each and all of the promissory notes herein referred [to] and described in said bond for title have been fully paid and satisfied.</p> <p>“4. It is further agreed between both parties to this contract that said parties of the second part shall at all times keep the building located on said tract of land, and the personal property this day bargained and delivered, insured in a sum of at least $10,000.00 with loss-payable clause to said party of the first part; and in the event that said parties of the second part fail or refuse to keep said buildings and said personal properties insured as aforesaid, then said party of the first part at her option shall have the right and privilege of declaring the contract of sale void, or of fully insuring said property and charging the same to said parties of the second part. In the event the said party of the first part at her option shall declare the said sale void, then the said parties of the second part agree to surrender said property, both real and personal, to said party of the first part without any legal proceedings.</p> <p>“5. It is further agreed between both parties to this contract that in the event. . said parties of the second part desire to replace furniture, furnishings, and equipment hereinbefore referred to, with new furniture, furnishings, and equipment, that the same may be done by and with the consent of the said party of the first part.</p> <p>“6. It is further agreed and understood between both parties to this contract that the deferred payments of the purchase-price of the said real and personal property, represented by said promissory notes as aforesaid, are a series; and that if any one of said notes shall become due and remain unpaid for as long as 30 days after the-due date of the same, then that each and a,ll of said promissory notes shall become due and payable, time being made the essence of this contract.</p> <p>“7. It is further agreed that all of the agreements and covenants .between the parties are included in this contract, the same being executed in duplicate.”</p> <p>On the day the above papers were executed the vendor delivered possession to the purchaser, and the latter proceeded to carry on the hotel business under a different name. Thereafter the first two notes were paid as they matured. On May 8, 1923, before the third note fell due, the purchaser instituted the action to enjoin the vendor from conducting another hotel in the same town,,, on the ground that one of the considerations moving the purchaser to buy the property was a parol agreement by the vendor not to engage in the hotel business in the town so long as the purchaser should operate the hotel. .After introduction of evidence as above indicated on the interlocutory hearing, the judge excluded certain testimony that was offered to prove the alleged parol agreement of the vendor not to engage in the hotel business, and with such evidence excluded refused a temporary injunction. The testimony that was rejected related to negotiations both prior to and at the time of the written contract, and subsequent declarations of the grantor admitting the alleged prior parol agreement.</p>

<p>The Court of Appeals (iu Case No. 14161) requested instructions from the Supreme Court upon the following questions involved in this case:</p> <p>1. Is the phrase or expression “current expenses,” as employed in section 507 of the Civil Code, the same in meaning and effect as “county purposes,” as used in section 508 ? (Sullivan v. Yow, 125 Ga. 326, 328, 54 S. E. 173.)</p> <p>2. If question No. 1 should be answered in the affirmative, can a tax under section 508 be lawfully levied for “county purposes” up to 50 per cent, of the amount of the State tax, although there is made at the same time a levy for “current expenses” included within the amount permitted by section 507. for accumulated indebtedness and current expenses; in other words, if “current expenses” and “county purposes,” as used in the two sections, are intended to include the same items of taxation, can the authority conferred by these two sections of the code in any case be considered as combined so as to permit a levy for these purposes in excess of the 50 per cent, maximum provided by section 508 ?</p> <p>3. If question No. 1 should be answered in the negative, what items of taxation enumerated in section 513 of the Civil Code are included within the term “current expenses,” and what items as so enumerated are included within the term “county purposes” ?</p> <p>4. If the court answers that a tax for “current expenses” is the same as a tax for “county purposes,” which, if any, of the following items of a county tax levy as made, to wit, (a) to pay “court expense,” (b) to pay “salaries and commissions,” and (c) to pay “any other lawful charge against the county,” fall within that classification ?</p> <p>5. If the court answers_ that a tax for “current expenses” is not the same as a tax for “county purposes,” under which (if either) of these classifications does each of the following items of a tax levy fall, to wit: (a).to pay “court expense,” (b) to pay “salaries and commissions,” and (c) to pay “any other lawful charge against the county” ?</p> <p>6. May a tax for the purpose of paying accumulated indebtedness, as allowed under section 507 of the Civil Code, be lawfully levied under item 9 of section 513 of the Civil Code, authorizing a levy “to pay any other lawful charge against the county;” in other words, may an item of a county-tax levy to pay any other lawful charge-against the county be construed as including a tax for accumulated indebtedness ?.</p> <p>7. If the last preceding question should be answered in the negative, would the answer be the same if it is shown by the parol evi-' denee of the chairman of the board of county commissioners who levied the tax that the tax levied under this classification — that is, to pay any other lawful charge against the county — was intended as a tax for the purpose of paying an existent accumulated indebtedness ?</p>

<p>Equitable petition. Before Judge Eve. Tift superior court. July 3, 1923.</p>

<p>Petition for injunction. Before Judge Highsmith. Wayne superior court. August 2, 1923.</p>

<p>Murder. Before Judge Kent. Laurens superior court. August 25, 1923.</p>

<p>Murder. Before Judge Malcolm D. Jones. Houston superior court. November 17, 1923.</p> <p>Louis McCoy was indicted for the murder of Fletcher Whitfield. The jury found him guilty, with a recommendation to the mercy of the court; and he was sentenced to the penitentiary for life. He excepted to the refusal of a new trial. The amended motion for new trial contains ten grounds. Six of the grounds complain of the omission of the court to charge certain propositions of law, and four of the grounds complain of certain excerpts from the charge of the court.</p>

<p>Equitable petition. Before Judge Wright.. Eloyd superior court. August 17, 1933.</p> <p>The petition filed by B. A. Jones against John M. Smith, his wife, Nora Z. Smith, and their two sons, John Byron and Boosevelt Smith, alleged that Nora Smith was indebted to petitioner upon an execution issued from the superior court of Eloyd County in the sum of $316, and J. M. Smith was indebted to petitioner on open account in the sum of $375; that on April 9, 1931, there came on to be tried in said, court the suit of Charley Johnson against John M. Smith, defendant in fi. fa., Nora Smith, claimant, involving a described tract of land; that petitioner was induced by John M. and Nora Smith, upon the representation that if the claim of Nora Z. Smith should be sustained they would consent that a decree of court be taken vesting the title to said land in petitioner, and covenanting that they would iminediately yield possession of' said land to petitioner, to deposit with the clerk of said court the sum of $875, claimed by Johnson as purchase-money on the land; that decree of court was accordingly taken, and Johnson executed to petitioner a warranty deed conveying the land; that defendants have remained upon and are claiming the land-under some pretended, fqlse, and fraudulent claim in the form of bond for title or other like writing, refusing to pay rents, and denying petitioner’s right and title; that all the defendants are insolvent; that defendants are cutting and removing the timber from the land; that the land is well worth $300 a year rent, but the defendants have paid no attention to his demand for rent for the year 1931; that all the defendants are asserting title to the land, slandering petitioner’s title, and depriving him of possession; that he has a purchaser for said land at the sum of $1511, but the purchaser refuses to consummate the contract so long as any of the defendants are permitted to remain upon the land. The prayers are, that defendants be restrained by injunction from slandering petitioner’s title, from cutting timber, from destroying any of the houses, crops, or other appurtenances of said land, and from exercising dominion over said land as owners as against petitioner’s right and title; for a decree evicting each of the defendants and their goods; and placing petitioner in full, quiet, and peaceable possession; for the appointment of a receiver to take charge of the land pending the hearing, to .watch over the timber, and. crops,, and. to collect .the rents.</p> <p>Nora Z. Smith filed an. answer setting np that she alone was in possession and claiming the right to the land, that she had owed Johnson $875 purchase-money, that this amount was advanced by Jones as a loan, and that the deed made to him was solely for the purpose of securing said loan; and asking that the deed be declared to be a deed to secure a debt, that the amount of the debt be fixed and that she be given ninety days within which to make payment. Trial of the case resulted in a verdict finding for the plaintiff the premises in dispute. Error is assigned upon the overruling of the defendant’s motion for a new trial. The special grounds of the motion for new trial are :</p> <p>(1) That the court erred in stating, when the plaintiff was asked the question, “Were you not holding it back so that if things did not suit you right, you could levy?” “That is not a proper question. You need not answer that.” Said question had reference to án entry upon an execution in favor of Rome Hardware Co., suing for the use of D. W. Simmons, clerk of the court, against Nora Z. and John M. Smith, said entry reading, “Satisfied by deed of Charlie Johnson to R. A. Jones, April 9th, 1921.” Said entry was unsigned, and the plaintiff testified that the execution had not been canceled of record. It is complained that this action of the court was prejudicial error, because (a) if the witness had testified that he had held the cancellation back from the record so that if things did not go to suit him he could levy, such evidence would have shown that the cancellation of the fi. fa. was not bona fide and was made solely for the purpose.of being used as evidence in this case; and for the court to interpose and stop the witness without any objection by counsel for plaintiff was very prejudicial in the minds of the jury as against the interest of defendant; (&) because the witness, the plaintiff, was under cross-examination, the testimony sought was relevant, and the ruling and statement complained of restricted and denied to defendant the right to a thorough and sifting examination.</p> <p>(2) That the court failed to charge that if the jury should find that the consideration or any material part thereof of the deed was to pay or secure the debt of the husband of defendant, the same would, to that extent, be void.</p> <p>(3) That the court failed to submit to the jury the contention of defendant that the deed above mentioned was made to secure a debt of $875, that Jones contended it included the fi. fa. of Rome Hardware Company against Nora Z. Smith and John M. Smith for $200 with interest and costs, and that .the jury should be required to find the amount of the debt due by defendant and to express the same in their verdict; and failed to submit the following form of verdict suggested by counsel for defendant: “We, the jury, find in favor of the defendant, that the deed is a deed to secure a debt, and the debt amounts to so much principal and so much interest,” but merely said, “Retire and make up your verdict.” It is contended that if the jury had been so instructed, it would then have been within their power to do complete justice to both parties; and that the failure so to charge impressed upon their minds that a finding in favor of the defendant would cause the plaintiff to lose the money he had actually paid out.</p> <p>On the question of whether the deed to petitioner, R. A. Jones, was an absolute or a security deed, the evidence was conflicting. The testimony on the part of Jones was, in part, as follows: “It was a deed to secure a debt. I wouldn’t have gone into it under any other circumstances; didn’t need the land. Fifteen hundred and eleven dollars is what I sold it for. I was to have the land of course, I bought it. It was a deed to me, of course. In the talk with them they did not retain any right to it or any interest in it or any right to possession.”</p>

<p>Fulton superior Divorce and alimony. Before Judge Bell, court. September 34, 1933.</p>

<p>Equitable petition. Before Judge Searcy. Lamar superior court. June 6, 1923.</p>

The Court of Appeals requested (in case No. 13977) instructions upon the following questions: “1. Can an agent, entrusted by the owner with the possession of a properly indorsed past-due promissory note for the purpose of collection only, convey a good title thereto as against his principal, by a sale and delivery to one talcing without actual notice that the agent is only empowered to collect? In other words, assuming, under the former decision in this case (28 Ga.

<p>Petition to remove cause. Before Judge Park. Wilkinson superior court. October 15, 1923.</p>

Temporary alimony. Before Judge J. B. Jones. Hall superior court. November 17, 1923. John G-. Wallace, a resident of Hall County, instituted a suit for divorce against Mrs. Jewell Wood Wallace in Dawson County.

<p>Ejectment. Before Judge Franklin. Richmond superior court. July 3, 1923.</p>

<p>This case arose under the workmen’s compensation law of Georgia. The, defendant in error filed a claim with the Industrial Commission of Georgia, asserting a right to recover compensation on account of the death of her husband while working as a convict guard in the employment of Laurens County. The case was originally heard before one of the commissioners, who rendered a decision denying the right of the applicant to recover. By appeal she carried the ease before the entire commission, which sustained the finding rendered; and then an appeal was taken to the superior court, and the decision of the commission was affirmed. To the judgment of the superior court a writ of error was sued out to the Court of Appeals of Georgia; and the latter court rendered a judgment reversing the judgment of the superior court, and in effect held that Mrs. Martin, as a matter of law, should recover. The plaintiff in error ■ filed an application to the Supreme Court for a writ of certiorari, which was granted. Held, that the finding and holding of the commissioner before whom the application was first heard was supported by the evidence in the case; and the finding of the commission upon the issues of fact is conclusive as to those issues in the reviewing court, there being evidence to sustain it. From those findings, which are controlling in the case, it followed that the accident which resulted in the death of the husband of the applicant did not arise out of his employment, and that the claimant was not entitled to recover compensation under the provisions of the workmen’s compensation act..</p>