Volume 46 — Georgia Reports

Before Judge Parrott. Whitfield Superior Court, April. Term, 1872. The demises laid in plaintiff’s declaration were as follows, to-wit: 1st, of Robert S. Denham and his wife Sarah, to lot one hundred and twenty-nine, eleventh district, third section; 2d, of William D. Bevil and his wife Catherine Bevil, to the same lot; 3d, of James U. Horne to the same lot; 4th, of James U. Horne to the undivided two-thirds part of the same lot.

<p>Under the provisions of the Revised Code, sections 2738, 2739 and 2123, accommodation indorsers of a negotiable security, payable at a chartered bank, are considered as securities merely, and if one pays off the debt he can compel the others to contribute.</p>

<p>Before Judge Hopkins. Fulton Superior Court. October Term, 1871.</p> <p>For the facts of this case, see the decision.</p>

Before Judge Clark. Sumter Superior Court, April Term, 1872.

Private sale by administrator. Railroad stock. Bona fide purchaser. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871. Eor the facts of this case, see the decision.

Before Judge Cole. Bibb Superior Court. May Term, 1872. E. Witkowski sued out a writ of certiorari to the Justice Court of the 716th district, Georgia Militia. When said cause was called in the Superior Court, counsel for B. Skalowski moved to dismiss the same, upon the ground that the sum involved in the original suit in the Justice Court exceeded $50, and that therefore the remedy of the dissatisfied party was by appeal, and not by certiorari.

Injunction. Constitutional law. Eminent domain. Compensation. Before Judge Cole. Bibb county. At Chambers, September 13th, 1872.

Eelief Act of 1870. Tax affidavit. Eenewal. Evidence. Before Judge Parrott. Whitfield Superior Court, April Term, 1872. James H. Lowry brought complaint against S. Percy Greene and Julia Greene upon the following note, to-wit: “$450.00. One day after date, we, or either of us, promise to pay James H. Lowry, or bearer, the sum of four hundred and fifty dollars, for value received. This Nov. 18th, 1872.

<p>Trespass vi el armis. Arrest. Constitutional law. Competency of juror. New trial. Before Judge Clark. Sumter Superior Court. April Adjourned Term, 1872.</p> <p>Levi Johnson brought trespass vi et armis against the Mayor and City Council of Americus, S. W. Lee and W. W. Wheeler, in which he alleged that he had been imprisoned without lawful warrant or authority, to his damage $10,000. Defendants pleaded not guilty and justified under the charter of the city of Americus.</p> <p>Upon the trial plaintiff objected to those jurors who were citizens of Americus. The objection was overruled by the Court.</p> <p>Plaintiff testified that on the 9th of June, 1870, he was arrested by defendants Lee and Wheeler, without warrant or other writing, within the corporate limits of Americus and carried to the guard-house and imprisoned from three p. M. of the 9th, until ten A. m. the next day, when he was taken from the guard-house and carried before the Mayor of Americus, who continued the case until two p. m. ; that defendant pleaded guilty and was fined $10 and costs, "which he paid; that plaintiff offered to give bond, which was refused ; that he had left his wife, an aged and feeble old woman, sick at home, and appealed to Lee and Wheeler to be allowed to return to her; that Lee and Wheeler were acting as policemen under the general directions of the Mayor and Council.</p> <p>Plaintiff closed.</p> <p>Defendants introduced W. W. Wheeler, (defendant,) who testified that on the 9th day of June a Mrs. Randall sent for him and Lee; that when they arrived plaintiff was pulling and dragging Mrs. Randall up a gulley; that they asked Mrs. Randall if they could get a drink of water; that she consented, and when they proceeded to get the water, plaintiff called out to them that they came to arrest him. Plaintiff cursed them in a loud and noisy manner, and as Lee was advancing on him, drew a pistol and cocked it and presented it at Lee but did not fire; that Lee advanced, caught Johnson and took the pistol from him; that Johnson was very drunk; that they carried plaintiff to the guardhouse and locked him up; that plaintiff was taken out at ten A. M. next day and carried before the Mayor; that the Mayor, Mr. Johnson, a Justice of the Peace, and Mr. Calloway, a Notary Public, all resided in the city and were of easy access ; that no affidavit was made or warrant sued out; that when plaintiff was first arrested they told him that if he would behave himself that they would let him go home, but he refused and swore he would not be arrested; that afterward when he requested to be allowed to go home, they refused to release him ; that witness was merely acting in the discharge of his duty as policeman.</p> <p>S. H. Mitchell, former marshal, testified that the place of arrest was within the corporate limits.</p> <p>Durell Randall testified that he was city clerk; that plaintiff pleaded guilty to disorderly conduct, and was fined $10 or sentenced to work ten days on the public streets.</p> <p>Plaintiff admitted that the defendants Lee and Wheeler were prosecuted on the criminal side of the Court and acquitted.</p> <p>Counsel for plaintiff requested the Court to charge the jury as follows, to-wit:</p> <p>“ If you find from the evidence that Lee and Wheeler, to prevent the commission of a felony, or for any lawful purpose arrested plaintiff without warrant or process of law, it was their duly to carry him without delay before the most convenient officer authorized to receive an affidavit and issue a warrant, and any imprisonment of Johnson beyond a reasonable time, for such purpose was illegal. They, in no event, had a right to imprison him for an hour or a moment, until they had first carried him either before the Mayor or some judicial officer to be dealt with according to law. No man or officer has the right to imprison in the guard-house or other jail a citizen of this State without due process of law. Process of law must be in writing, and may be by warrant, by commitment, or by sentence of a competent Court. If plaintiff was pulling the woman about, and she did not resist or resent it, or manifest her opposition to it, Lee and Wheeler had no right to arrest plaintiff. The Legislature cannot delegate the power to the Mayor and City Council of Americus to pass an unconstitutional law, or a law in violation of the general law of the land.”</p> <p>The Court refused to charge as requested, but, on the contrary, charged as follows:</p> <p>“This is an action for false imprisonment, which consists in the unlawful detention of the person of another for any length of time, whereby he is deprived of his personal liberty.</p> <p>“Was the imprisonment of the plaintiff by the defendants unlawful ? If so, he is entitled to recover against the defendants whatever damage he sustained, as a compensation for the injury done. The rule I will give you hereafter.</p> <p>“ If the imprisonment was not unlawful, then the plaintiff is not entitled to recover.</p> <p>“ The Legislature of the State of Georgia, having the power under the Constitution, has delegated to the Mayor and Council of Americus the ¡power ‘ to pass all ordinances, rules and regulations necessary and proper for the good government and subjection of all persons whatever/ This grant of power is very large, and sufficient to meet any case of violation of the by-laws and ordinances of the corporation of Americus. The Legislature has also vested the said Mayor and City Council with power to establish and regulate a guard, who shall have the right to take up all disorderly persons, all persons committing or attempting to commit crime, and to commit them to the guard-house to await their trial the next day. The Mayor and Council, in obedience to the power thus vested in them, passed and published ordinance 142, which says : ‘Any person who shall - be found in said city acting in a disorderly, riotous or tumultuous manner, or who shall be guilty of any act or acts endangering the safety of any citizen or property, or of any offense against the public peace, morality or decency, shall be arrested by the marshal, deputy marshal or any policeman, and confined in the guard-house until such time as he or she can be brought before the Mayor’s Court for trial; and any person guilty of such disorderly conduct shall be punished by a fine not exceeding twenty dollars, or otherwise in the Mayor’s discretion.’</p> <p>“ This law of the Legislature vesting this power in the Mayor and City Council of Americas is not unconstitutional. The Legislature had the right, under the Constitution, to grant the power to the corporation of the city of Araericus, and the ordinance passed in pursuance of said grant of power is also constitutional, and all persons who are guilty of disorderly conduct can be arrested at once without warrant and confined in the guard house until their trial the next day.</p> <p>“It is the right and duty of the Mayor to sit the next day and try the offender, and to punish him, if guilty, in accordance with the ordinances of the city government. All governments 'must have such rights else discord would reign supreme in every city of the United States.</p> <p>“ The arresting of a disorderly citizen by the policeman of the city of Americas is not an unlawful arrest. It is his duty to arrest all such people, and to arrest them at once, and that, too, without a warrant. If the citizen is guilty of disorderly conduct, and a policeman arrest him, he cannot complain, and has no right of action against the officer who makes the arrest. Such an arrest and detention in the guard house until the Mayor’s Court meets the next day, is not an unlawful detention, and no right of action accrues to the person who is thus arrested and detained. If Johnson, the plaintiff, was within the city limits and engaged in disorderly conduct, such as dragging a woman in the street, and the policeman arrested him and confined him in the guardhouse during the night, the defendants are not liable in damages to Johnson, inasmuch as they were discharging their duties in accordance with the law, and the ordinance of the City Council and the charter of the city was the law that the policemen were bound to obey. If, when they sought to arrest him, Johnson drew his pistol and put himself in a posture of defense, he was also guilty of violating an ordinance of the city for resisting an officer. If Johnson, on being arraigned the next day, pleaded guilty to the charge of disorderly conduct, the plea of guilty is prima facie evidence of his guilt, and remains such until he proves that he was not guilty. If lie pleaded guilty, it was the right and duty of the Mayor, under the law, to impose a fine on him of not more than ten dollars, .and in the discharge of that duty the Mayor and City Council are not liable.</p> <p>“If the plaintiff, Johnson, was not'guilty of disorderly conduct or of violating any ordinance of the City Council, and the policemen arrested him without cause, then they and the City Council are liable in damages: Code, sections 3010, 3011, 3012. But if he was disorderly at the time of arrest, he has no right of action and you must find for the defendants.”</p> <p>The jury returned a verdict for the defendants, whereupon plaintiff excepted upon the following grounds, to-wit:</p> <p>1st. Because the Court erred in the ruling as to the competency of the jurors, who lived within the corporate limits of said city.</p> <p>2d. Because the Court erred in refusing to charge as requested.</p> <p>3d. Because the Court erred in the charge as given.</p>

Equity. Charitable bequest. Before Judge Robinson. Greene Superior Court. March Term, 1872.

Res cidjudicata. Before Judge Knight. Lumpkin Superior Court. April Term, 1872.

Complaint on bond for title. Breach. Party. Before Judge Knight. Lumpkin Superior Court. April Term, 1872. John I).

<p>1. A paper, signed by the Ordinary, purporting to grant to an administrator leave to sell the land of the estate which he represented, which had never been recorded or entered on the minutes of the Court, and without proof that such order had been granted, at a regular term of the Court of Ordinary, is inadmissible in evidence. (R.)</p> <p>2. The recital in an administrator’s deed, executed on the 3d day of December, 1861, that leave to sell the land was granted in November last past, is notice to the purchaser that the requirement of the law, as to forty days’ public notice of the sale, had not been complied with. (R.)</p> <p>3. Although the minor heirs of the intestate may have had a guardian who receipted to the administrator for their portion of the proceeds of the land, without any knowledge of the illegality of the sale, yet they were not estopped from asserting their claim to the land, when they obtained a knowledge of such illegal sale, they accounting for the money received. (R.)</p> <p>4. Estoppels are not favored by the Courts. (R.)</p>

<p>Relief Act of 1870. Exceptions. Before Judge Davis. Clarke Superior Court. August Term, 1871.</p> <p>John N. Montgomery and Rufus M. Meroney, as executors of Robert W. Pruitt, deceased, brought complaint against J. W. and S. W. Pruitt, principals, and T. A. Neal and W. B. Burns, securities, on a note made prior to June 1st, 1865, for #6,000.</p> <p>When the case was called, defendants moved to dismiss it, because no affidavit had been filed as to the payment of taxes, under the Relief Act of 1870.</p> <p>Counsel for plaintiffs stated that the note sued on belonged to a minor, who was the sole legatee, under the will of Robert W. Pruitt, deceased, and offered to prove these facts to the Court.</p> <p>The Court dismissed the suit, holding that, as the declaration failed to aver facts, bringing the case within the L4th section of the Relief Act of 1870, an affidavit as to the payment of taxes was necessary, to which decision plaintiffs in error excepted.</p>

Mechanic’s lien. Secondary evidence. New trial. Before Judge Parrott. Gordon county. At Chambers. November 18th, 1871. Gustavus W. Nagle commenced the statutory proceedings as a mechanic, against Abel D. Breed, as the lessee of the Selma, Rome and Dalton Railroad, for the sum of $7,453 03, for labor done and materials furnished in the construction of said railroad in the county of Gordon.

Equity. Cumulative evidence. Misrepresentations. Tried Before Judge Alexander. Laurens Superior Court. October Term, 1871.

The statute of limitations was suspended from December, 1860, to the first of December, 1861, and again from November 8th, 1865, to July, 1868, and an account which became due in August, 1861, and was sued on July 13th, 1869, was not barred. (K..) Statute of limitations. Before Judge Parrott. Bartow Superior Court. March Term, 1872. For the facts of this case see the decision.

<p>1. An action of ejectment is not strictly an action for a tori, but is a mixed action, partly and nominally for a tort, but mainly to try title to land.</p> <p>2. Where, in a declaration in ejectment, the ouster is alleged as occurring since the 1st of June, 1865, but the proof shows the defendant to have been in possession before the 1st of June, 1865, the action is not barred by the Act of March 16th, 1869, because not brought within three months after the 16th March, 1869.</p> <p>3. No damages or mesne profits can be recovered behind the 1st of June, 1865, but the defendant, if he defends by his possession under color alone, must show that possession to have been continued seven years before bringing the suit. '</p>

Where suits were commenced on promissory notes and judgments rendered in favor of the plaintiff, which were set aside by the Supreme Court, upon the ground that said suits were void, and within six months from this judgment said notes were again sued, these- facts will not prevent the statutory bar from attaching. (R.) Statute of Limitations. Dismissal and renewal. Before Judge Harvey. Walker Superior Court.

Relief Act of 1870. Tax affidavit. Exceptions. Before Judge Sessions. Lowndes Superior Court. December Adjourned Term, 1871.

Rule against sheriff. Execution. Diligence. Tried before Judge Wright. Payette Superior Court. October Term, 1871.

<p>Foreclosure of mortgage. Description. Advances. Estoppel. Title. Tried before Judge Cole. Houston Superior Court. December Term, 1871.</p> <p>J. W. Lathrop and Company commenced proceedings to foreclose a mortgage on real estate executed by “James II. Allen, George W. Allen, Eugenia C. Dunlap, and James M. Ward, in right of his wife Cornelia Ward, legatees under the last will and testament of Hugh Allen, deceased,” “ in consideration of advances in money and plantation supplies, to be advanced to said James M. Allen by said James W. Lathrop and Company aforesaid, said supplies and money being advanced by said J. W. Lathrop and Company for the mutual benefit of said James H. Allen, George W. Allen, Eugenia C. Dunlap, and James M. Ward, in right of his wife Cornelia Ward, said supplies and money being advanced for the purpose of carrying on the farm for the year 1870, in the county of Houston, in said State,” “ to secure said James W. Lathrop and Company for the same.” The mortgage was dated January 12th, 1870. The rule nisi recited that there was due to plaintiffs on January 10th, 1871, $4,858 21.</p> <p>James H. Allen objected to the foreclosure of said mortgage upon the following grounds, to-wit:</p> <p>1st. Because he holds said realty as executor of Hugh Allen, deceased; said estate has never been settled, and the said land has not been turned over to the legatees of said Hugh Allen; that there are now outstanding debts against the estate of said Hugh Allen, and it will be necessary for defendant, as executor as aforesaid, to administer upon said land for the payment of said debts, and that said land is, by the will of Hugh Allen, deceased, charged with the payment of certain legacies in said will set forth, which will be sufficient to exhaust the whole of said land.</p> <p>2d. That as guardian for S. W. Allen, G. E. Allen, and N. L. Allen, minors of Newton Allen, deceased, he is entitled to a distributive share of said land, and that by the conditions of the last will and testament of said Hugh Allen, said land so mortgaged, as aforesaid, is given for the sole and separate use of the several legatees in said will mentioned, and that none of the defendants to the above rule had any legal right to sell said land or create any incumbrance thereon, the same being trust property.</p> <p>The remaining mortgagors also filed objections to the foreclosure unnecessary here to be set forth.</p> <p>The jury returned a verdict for the plaintiffs for the sum of $4,858 21, with interest from January 10th, 1871.</p> <p>The defendants assign the following errors upon the trial, to-wit:</p> <p>1st. The Court erred in not granting a continuance upon the ground that James H. Allen, as guardian for the minors of Newton Allen had, after filing objections to said foreclosure and before the trial, been removed from his guardianship and no other guardian had been appointed.</p> <p>2d. The Court erred in allowing said mortgage to be introduced in evidence, said mortgage describing no debt with sufficient accuracy and being given to secure the payment of debts not in existence at the time of the execution.of the mortgage, and for debts of an indefinite amount.</p> <p>3d. The Court erred in rejecting as evidence the last will and testament of Hugh Allen, deceased, sought to be introduced for the purpose of showing that the lands included in the mortgage comprised all of the lands mentioned in the will, and that the minors of Newton Allen were legatees under said will and interested in said realty ; that there had been no settlement of the estate, and the lands were incumbered with the payment of debts and legacies which were still unsettled; that there had not been any assent of the executor to the execution of the mortgage; that by the terms of the will the mortgagors were prevented from selling or incumbering said realty, and that they had no interest in the land to mortgage.</p>

Exception to interrogatories. Specific performance. Before Judge Harrell. Early Superior Court. April Term, 1872.

Criminal law. Murder. Charge of Court. Immaterial error. Evidence. Before Judge Andrews. Elbert Superior Court. September Term, 1871. Westley Tate was placed upon trial for the murder of Jefferson Tate. The defendant pleaded not guilty. • The following evidence was introduced upon the trial: TESTIMONY EOB THE STATE.

Criminal law. Assault with intent to murder. Bill of exceptions. Practice in the Supreme Court. Malice. Before Judge Hopkins. Eulton Superior Court. October Term, 1871. Eor the facts of this ease, see the decision.

<p>Loan and Building Associations. Usury. Accord and satisfaction. Practice. Before Judge Hopkins. Fulton Superior Court. October Term, 1871.</p> <p>Andrew M. Parker brought assumpsit against the Fulton Loan and Building Association, a corporate body incorporated by an order of the Superior Court of Fulton county, th declaration containing substantially the following allegations: That said Association is indebted to plaintiff in the sum of $4,605 75 as principal debt, with interest on the same from March 8th, 1868, for so much money by the said plaintiff paid, laid out and expended to and for the use of the said defendant, and at its special instance and request, the said sum of money having been paid to said defendant as usurious interest for the use of money over and above the legal rate of interest. The declaration contained a second count for $4,605 75 money had and received by the defendant for plaintiff’s use.</p> <p>The defendant pleaded the general issue, and that if plaintiff ever had any demand against said defendant, the same has been by accord and satisfaction, settled and adjusted between defendant and plaintiff, by the purchase of a certain house and lot by defendant from plaintiff at a price agreed on between the parties, and on payment of the balance of $740 00 by defendant to plaintiff, all matters in dispute between them were by such accord settled and determined.</p> <p>The following evidence was introduced uponj the trial: Plaintiff testified that he joined the defendant, and took a few shares of stock. His object in joining was to borrow money from it, knowing that no one could borrow money without having stock to pledge as collateral. As he wished to borrow, from time to time, he got more stock through J. R. Wallace, sometimes paying him par and sometimes a little over par; told Wallace when he wished him to get him stock that he wished to buy it and borrow on it; at various times from September 13th, 1866, to March 8th, 1868, he got money from defendant; first got $190; bid it off at eighty-one per cent; the last gotten was $740 on a settlement in part payment for the land which he conveyed to defendant. He does not remember the dates nor amounts of the several separate loans received from defendant, but the total received by him amouuted, in principal and legal interest on it to 8th of March, 1868, to something over $5,000, and paid them back various sums at dates and in amounts not remembered, aggregating, with legal interest added up to 8th March, 1868, to something over $9,000, leaving a balance over paid of $3,398. On said settlement defendant paid him $740 cash, and he conveyed to defendant property valued on the settlement at $6,500 in settlement of defendant’s demands against him. The payments were in consideration of the money he had gotten from defendant.</p> <p>Cross-examined: When hejoined defendant, he was furnished with a printed copy of its constitution and by-laws, and a certificate of stock; each stockholder had to pay $1 00 per share per month on his stock, and a fine of ten cents for failure, whether such stockholder had borrowed or not, and $1 00 per share per month was paid by him to keep his stock; this stock was like any other stock so liable, on market, for fluctuating prices; when a loan was made, one dollar per month on each share bid off had to be paid for interest, and ten cents on this per month on failure to pay it; when payments were made, defendant’s treasurer gave receipts showing the amount paid itemized. Plaintiff made up the account sued on from said receipts and other data in his possession; cannot remember any sums or the dates, except the first and the last, but knows that the aggregate is about as aforesaid; there is one error in said account, attached to the declaration of $1,200, in my favor, in one place, and some smaller and immaterial errors in calculations. Money kept up so high in the Association that, at any time within a year from the first borrowing by plaintiff, he could have paid back the identical sum received by him, and gotten his mortgages discharged, and had his stock reinstated, and gotten the accumulation on his stock; the money would thus have cost him no interest; at any time after that, he could have paid back what he had borrowed, plus such sum as, at the then rating rate of premium, would have made a mortgage by some other person equal to his, and gotten his mortgage released, and his stock pledged as collateral also released, and the accumulation on his stock would have exactly equaled the sum required by the Association to be paid in by him. This is not only so theoretically, but plaintiff knows it to be so practically. Had plaintiff kept his whole contract, he would have made, by the accumulation on stock, just what he would have lost by paying the installments required, but he had not the money with which to pay up according to his contract, and for that reason, lost by the contract. On the 8th of March, 1868, he had failed to pay, for five months, his monthly dues, then $200 per month; he then had a settlement with J. R. Wallace, who was acting for the company, and in that settlement all the items on the bill of particulars sued on were taken into consideration and passed upon. On that day, plaintiff agreed upon the settlement according to the paper exhibit. Defendant then bought plaintiff’s stock, as therein shown, paid him $740 cash, and gave up all his mortgages and transferred his stock to defendant, and thus had a full settlement of all their but in that settlement was said about but plaintiff knew what their claim was, and on what account their claim was, what he had gotten and what he had paid ; had been a member of such an association before, and was familiar with all its operations.</p> <p>Re-direct: Being unable to raise money to pay his monthly dues of $200 per month, for five months, and monthly fines of ten per cent, on the dues, and defendant threatening to sue him, he made said settlement to prevent suit. The average premium on all money borrowed by him was seventy-six per cent. Defendant began business in June, 1866. The amount of cash obtained depended on premium bid. Mortgage for any number of shares bid off was for $200 per share, without reference to the sum of money actually gotten. The amount procured was ascertained by deducting the price bid from $100 and doubling the remainder.</p> <p>Here plaintiff closed.</p> <p>Defendant introduced J. R. Wallace, who testified as follows: All the stock of the Association was taken (he first night. Parker did get him to buy stock for him, and this he did as he bought other things on commission; he isa real estate dealer, purchaser and seller of stocks, etc. Defendant authorized him to settle with Parker, and he made the settlement; the basis of it was as shown by the paper shown him; it is signed by Parker. That settlement was in full of all difference between the parties. Defendant’s board of directors had often discussed whether a borrower could successfully plead usury, and, while he is not certain, thinks he and plaintiff spoke of it before settling; he, acting for the company, thought the settlement covered usury, if there was any in the transaction. Nominally, the defendant held plaintiff’s obligations for near $20,000, but plaintiff knew that that was but nominal, and that he was only required to pay his installments. Defendant was well posted about the operations of the Association. The real estate priced in the settlement at $6,500 was not then worth more than $5,000; the building on it was very inferior, and property was dull; it was then leased out, and there were some liens on it; Parker secured them against these liens by a mortgage on his Broad street property, and afterwards paid off the liens. About six months after the settlement, defendant sold said property for $6,500. Property had increased in value; has often seen a greater increase in six months in Atlanta. Defendant had paid $120 taxes on it, meanwhile. The paper shown was written by witness, except that Parker signed it. What plaintiff got, and what he had paid, witness did not know. Under the usual operations of such an association, it would reach the end contemplated, i. e., when each share would be worth $200, less forty per cent., in sixty-six months from its organization.</p> <p>Defendant then put in evidence said paper, which was as follows.:</p> <p>“Atlanta, March 17th, 1868.</p> <p>“A. M. Parker, to Fulton Loan and Building Association:</p> <p>One hundred shares at 65 per cent, 70....................$7,000</p> <p>Amount of dues supposed to be............................ 1,160</p> <p>$8,160</p> <p>Deduct stock................................................... 2,200</p> <p>$5,960</p> <p>Take front store, 21 by 100, now occupied, and possession to be given 1st June, 1868...................$6,500</p> <p>$ 540</p> <p>Allow him...................................................... 200</p> <p>$ 740</p> <p>“ I will accept the above and make deed in fee simple to store-house and lot on Whitehall street, now occupied by F. Corra & Company. (Signed)</p> <p>“A. M. Parker.”</p> <p>Defendant then put in evidence, by consent, its printed Constitution, as follows:</p> <p>“CONSTITUTION.</p> <p>“ARTICLE I.</p> <p>“This Association shall be entitled The Fulton Loan and Building Association, and shall have for its object the accumulation of a fund by monthly subscriptions, or savings of the members thereof, to assist them in procuring for themselves such real estate as they may deem proper.</p> <p>“article ii.</p> <p>“See. 1. Any white resident of Georgia, twenty-one years of age and upwards, may be a member of this Association. Married females and minors may hold property in this Association by trustee, and not otherwise; and the names of the person or persons for whom such property is held .in trust shall be specified on the books of the Association.</p> <p>“See. 2. Each stockholder, for each and every share by him or her held, shall pay the sum of one dollar, in par funds, on subscribing, and the same amount on the eighth (8th) day of each and every month thereafter, (unless such day occur on Sunday, in which event the payment to be made on the day previous,) to the treasurer, or to such other person or persons as shall from time to time, by the laws and regulations of the Association, be authorized to receive the same, until the whole stock shall be of sufficient value to divide to each share of stock the sum of $200.</p> <p>“See. S. When each stockholder, for each and every share of stock by him or her held, shall have received the sum of $200, then this Association shall determine and close: Provided, always, that any stockholder having received an advance in the manner prescribed in Article eighth, shall be debited in his account with the premium paid thereon.</p> <p>“See. 4. Should any stockholder fail to meet his or her dues as often as the same shall be payable as aforesaid, he or she shall forfeit and pay the additional sum of ten cents for every such failure and for every dollar thus unpaid, the same to be charged with the monthly dues.</p> <p>“See. 5. Should any stockholder neglect or refuse to pay his or her monthly dues or fines for more than three months, he or she shall receive from the treasurer the amount of dues actually paid, with no allowance for interest thereon — first deducting all fines and arrearages with his or her proportionate part of any losses and expenses sustained — and thence cease to be a member of this Association.</p> <p>173</p> <p>. “Seo. 6. Should any stockholder, not having received an advance, wish to withdraw from the Association, he or she shall be entitled to receive from the treasurer the amount of dues actually paid, first making the deductions provided for in the fifth section of this Article: Provided, however, that no stockholder wishing to withdraw give less than one month’s notice to the directors of such intention. Transfer of stock may at any time be made in the presence of the treasurer, attested by his signature; but no such transfer shall be valid until all arrearages or fines that may be due upon said stock shall have been duly discharged. Such transfer must be made at least thirty days before an election to entitle the holder thereof to vote.</p> <p>“Seo. 7. In the event of the death of a member who has not made a loan, the heirs or legal representatives of the deceased may continue his relation to the Association; or should they prefer it, shall be entitled, by giving the treasurer thirty days’ notice, to receive from the Association the amount paid in, together with seven per cent, simple interest thereon from date of monthly payments; or should any such deceased member have made a loan and the note given to the Association be for an amount greater than that paid in by him to tlje Association in addition to seven (7) per cent, simple interest thereon, then the heirs or legal representatives may cancel the said note by paying its full value, less the amount paid in and interest as above stated; but if the note be for a less amount than that paid in aud seven (7) per cent, simple interest thereon, then the heirs or legal representatives shall be entitled to receive from the Association the difference. In every instance of withdrawal by death, any charge there may be due for fines, arrearages, unpaid premiurns for insurance, and proportion of losses and expenses sustained, shall first be deducted.</p> <p>“Seo. 8. No stockholder shall hold in his or her own right more than thirty (30) shares.</p> <p>“Seo. 9. Each stockholder, for each and every share by him or her held, either in their own right or as trustee, shall be entitled, when personally present or by written proxy, at an annual election or special meeting, to one vote, for the election of officers and other purposes: Provided, however, that no stockholder shall be entitled to more than twenty votes on any one ballot, and be allowed one ballot only in any one election, or on any one question, for him or herself or as trustee for any other person.</p> <p>“Seo. 10. Each member, upon subscribing for a share or shares, and making the first monthly payment of the same, shall be entitled to a certificate of such share or shares, specifying the number and amount thereof respectively, signed by the president and countersigned by the treasurer, which certificate shall be evidence of his title thereto.</p> <p>“Seo. 11. Each stockholder shall sign this Constitution, thereby obligating himself or herself to pay punctually their monthly dues, interest and fines, and to fulfill all other requisitions herein contained.</p> <p>“Seo. 12. The fines imposed by the fourth section of this Article shall be debited to the defaulting member until all arrears are paid.</p> <p>“ ARTICLE III.</p> <p>“The officers of this Association shall be a President, Treasurer, Secretary and four Directors, exclusive of the President, (who shall be ex-offioio a member of the board,) all of whom must be stockholders. They shall be elected at the annual meeting of the stockholders on the evening of the eighth day of June, 1866, and on the tenth day of June in each and every year thereafter; provided that day do not occur on Sunday, in which 'case the election shall be held on the evening of the previous day. A majority of all the votes represented, or present, shall determine an election. Should any officer die, or resign in the interim between one election and another, the board of directors shall have power to fill the vacancy.</p> <p>“ ARTICLE IV.</p> <p>“ It shall be the duty of the president to preside at all meetings of the Association and of the board of directors; to preserve order, and to sign all drafts on the treasurer when ordered by the board of directors, and to perform all other duties usually appertaining to his office. He shall have power, with the concurrence of two of the board of directors, to call a special meeting of the Association whenever he may deem it advisable.</p> <p>“ ARTICLE V.</p> <p>“ See. 1. It shall be the duty of the treasurer to receive all moneys paid into the Association, and to pay all orders drawn upon him by authority of the board of directors, when signed by the president and countersigned by the secretary, and until the Association is made a body corporate by order of the Superior Court of Fulton county, or by act of the General Assembly of Georgia, all bonds, mortgages, policies of insurance, and other papers, shall be made to the treasurer as trustee for this Association, and upon the acceptance of such order or Act of Incorporation, all such bonds, mortgages, policies of insurance and other papers shall, ipsofaeto, vest in and, if necessary or proper, be assigned by him to said body corporate. Also to receive and hold' in trust for the Association, all bonds, mortgages, policies of insurance, and other papers in connection with property upon which money is loaned, first giving his receipt therefor to the Secretary. It shall be his duty, and he is hereby empowered to give release and acquittance for all sums of money paid to the Association upon any note, bond, mortgage or other security, and, if necessary, acknowledge satisfaction of the same on record. He shall keep accurate accounts with the stockholders and of all moneys paid into the Association. His books shall be subject to the inspection of the board of directors, and he shall be prepared, at all times, to inform the members of the state of their accounts, and, at the annual meeting, furnish a detailed statement of the finances of the Association. He shall give satisfactory bond for the faithful performance of his duties • shall receive such compensation for liis services as the board of directors may determine, subject to the approval of the stockholders, and, at the expiration of his term of office, deliver over to his successor all moneys, books and papers in his possession belonging to the Association.</p> <p>“Seo. 2. The treasurer shall deposit with the board of directors a correct duplicate of his receipt book, which he shall keep posted up every month so as to show all the receipts each month; and should the treasurer at any time refuse to exhibit any of the books or papers to any of the board of directors upon application, the board of directors shall dismiss him at once from office, and demand and receive from him all the books, papers and assets in his hands, and elect a successor to fill his unexpired term. Upon such dismissal, a refusal to deliver any of the books or assets of the Association shall be deemed and taken to be a full breach of the treasurer’s bond.</p> <p>“ ARTICLE vi.</p> <p>“It shall be the duty of the secretary to keep correct minutes of the proceedings of this Association, and of the board of directors, and record the same in a book or books provided for that purpose. He shall attest all orders drawn on the treasurer for the payment of money, under the authority of the board of directors. He shall have charge of all books and papers belonging to the Association except such as are entrusted to the treasurer, and deliver up the same in good condition to his successor in office. He shall receive for his services such compensation as may be fixed upon by the board of directors and approved of by the stockholders.</p> <p>“ARTICLE VII.</p> <p>“See. 1. It shall be the duty of one or more of the directors to meet statedly on the eighth evening of each and and every month — at such place as the board may appoint— with the stockholders, to dispose of the funds of the Association according to the constitution, and to conduct the business of the Association generally.</p> <p>“Bee. 2. They shall hold, on the fourth day after the monthly meeting, a special meeting, and other meetings as often as may be necessary, for the consideration of securities offered, and shall be empowered to appoint a solicitor for the Association, whose business it shall be to examine all titles, and draw up all papers in connection with said securities and attend to all other legal business of the Association. He shall be paid for his services such salary, out of the funds of the Association, as may be fixed upon by the directors and approved by the stockholders. In no case shall an order be drawn on the Treasurer for an appropriation until the necessary searches in the Courts of record shall have been made, and the solicitor certifies to the satisfactory character of the securities offered.</p> <p>“See. 3. A majority of the board of directors shall constitute a quorum. They shall be empowered to fill all vacancies that may occur in their number, and to adopt any regulations for their government not disagreeing with this constitution.</p> <p>“See. 4. They shall, from time to time, inspect the books and accounts kept by the treasurer, and shall cause a full statement of affairs of the Association to be annually prepared by that officer at least seven days before the annual meeting of the members, at which meeting such statement shall be submitted after having been first audited and signed by three members of the Association selected by the board.</p> <p>“Sea. 5. Any order on the treasurer must be sanctioned by a majority of the board, and signed by the president and secretary.</p> <p>“ ARTICLE VIII.</p> <p>“Seo. 1. Each stockholder, for each and every share of stock he or she may hold in the Association, shall be entitled to purchase an advance of stock of |200 and no more; provided, however, that no stockholder shall receive an advance of over $1,000 at any one monthly meeting, if any other stockholder present, not having received an advance, shall bid for it at an equal premium.</p> <p>“Sec. 2. The amount paid into the treasury each month shall, at the monthly meeting of the stockholders, be sold to the highest bidder or bidders among them; provided the same be not sold under forty per cent, premium, and be secured by real estate fully equal in value to the net sum advanced. If there should at any time be no bid for the money as high as forty per cent., then the money shall be distributed by lot among those stockholders entitled to borrow under the rules of this association; and if the person upon whom the lot shall fall, shall fail, or neglect, or be unable to give security required, he shall pay interest on the money, according to the requirements of the constitution, until the next regular monthly meeting, when it shall again be distributed as above described — the name or names of the person or persons in default, as above mentioned, being left out of the lot until all the other members, entitled to an advance, shall have drawn.</p> <p>“Sec. 3. Any stockholder taking an advance shall allow to be deducted the premium offered by him or her for the same, and shall secure the Association for such advance by satisfactory bond and mortgage, and policy of insurance, renewed from time to time at his or her expense. He or she shall further pay all recording fees, and all other expenses connected with such security, except the solicitor’s fees.</p> <p>“See. 4. For each advance of $200 made to a stockholder, one share of stock shall be assigned as collateral security. In case of failure to offer sufficient security for an advance within one month from the date of the purchase, the month’s interest shall be charged to said purchaser, and his or her right to said purchase cease.</p> <p>“See. 5. Any stockholder taking an advance shall pay to the treasurer, in addition to his or her monthly dues for shares, one dollar per month for each share on which such advance is made, or at the rate of six per cent, per annum on the whole amount, including the premium.</p> <p>“See. 6. No stockholder shall be entitled to an advance who is in arrears to the Association, and no property taken as security for an advance out of the limits of the county of Fulton, it being understood that the borrower shall pay all necessary expenses incurred by the directors in making an examination of all property out of the city of Atlanta.</p> <p>“Sec. 7. Should any stockholder, having received any portion of his or her stock in advance, neglect or refuse to pay any or all of his or her dues to the Association for three successive months, then the directors may compel payment of principal and interest by instituting proceedings on the bond and mortgage, according to law. When any sale shall take place of any property mortgaged to the Association, the directors shall have power to retain and apply so much of the purchase money as would be required to redeem the property, pursuant to the provisions contained in the ninth article of this constitution, together with all other payments, moneys and expenses due to the Association, and shall pay the surplus thereof to the mortgagor.</p> <p>“article ix.</p> <p>“Seo. 1. Should any stockholder, who has executed a mortgage to the Association, be desirous of selling the mortgaged property subject to the mortgage, he or she shall be at liberty to do so, with the consent of the directors, upon first duly transferring the shares secured by said mortgage to the intended purchaser, and upon such transfer being completed, and all arrears due the Association from the mortgagor being paid, and the conveyance to the purchaser being executed, such purchaser shall henceforth be liable to pay all monthly dues and interest payable in respect of such shares, and the directors may grant to the original mortgagor a release from all future liability in respect thereof.</p> <p>“Seo. 2. It shall be lawful for any stockholder, having executed a mortgage in favor of the Association, to subsitute at his or her own expense, and subject to the approval of the directors any other property as security to the Association in lieu of that originally mortgaged.</p> <p>“See. 3. Should any stockholder desire to have his or her property discharged from mortgage before the Association shall have regularly terminated, he or she shall be allowed so to do by paying into the hands of the treasurer such a sum of money as shall, at the rate of premium the funds are then selling, produce the same monthly payment of interest as that which said stockholder had been previously paying on his or her advanee: Provided, that such sum shall in no case be less than the net amount actually received by him or her: And provided further, that no release shall be given until the money paid for such release shall have been sold, and the security offered for the same be approved by the directors, and the papers connected therewith duly executed; such stockholder paying all costs connected with the redemption of the mortgaged property.</p> <p>“ article x.</p> <p>“In addition to the fines mentioned in the fourth section of the second Article, any officer of the Association, for neglecting to attend any of the annual or special meetings, shall be fined for each and every such neglect, the sum of one dollar; nor shall any fine be remitted in any case other than sickness or absolute necessity.</p> <p>“article xi.</p> <p>“ This constitution can only be altered or amended at an annual meeting, and by a majority of the stock represented or present; and at least one month’s notice of the proposed alteration must be publicly given.</p> <p>“ ARTICLE XII.</p> <p>“The capital stock of this Association shall be not less than two nor more than three thousand shares.”</p> <p>The defendant then introduced the original mortgage and note, and transfer of stock given by plaintiff to defendant, dated 13th September, 1866, for the first sum borrowed by plaintiff of defendant, and, by consent of parties on the trial, it was admitted that all the other mortgages and notes and transfers given by plaintiff to defendant, for other sums obtained by plaintiff from defendant, contained precisely similar provisions, and differed from this one only as to dates and amounts. A copy of which mortgage, etc., is as follows:</p> <p>“THE PULTON LOAN AND BUILDING ASSOCIATION. • “STATE OF GEORGIA — Fulton County.</p> <p>“This Indenture, made this 13th day of September, in the year of our Lord, one thousand eight hundred and sixty-six, between Anderson M. Parker, of the first part, and N. R. Fowler, as treasurer, trustee for the members of the Fulton Loan and Building Association, his successors in office and assigns forever, of the second part, being of the county and State aforesaid, witnesseth : That whereas, the said party of the first part has, according to the constitution and bylaws of said Association, procured an advance and borrowed from said Association the full and just sum of $1,000, and therefore owes to said Association the said sura, with interest at the rate of six per cent, per annum, payable monthly ; and whereas, the said party of the first part is desirous to secure unto said Association the true and full payment of said debt and interest as aforesaid, in accordance with said constitution and by-laws of said Association. Now this indenture witnesseth, that the party of the first part, as well for the better securing to the party of the second part the faithful payment of the debt, which the said party of the first part justly owes to the party of the second part, in manner herein mentioned, as in consideration of the sum of five dollars to him in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released and confirmed, and by these presents does grant, bargain, sell, alien, release and confirm unto the said party of the second part as treasurer, as trustee as aforesaid, his successors in office and assigns forever, all that city lot of laud in the city of Atlanta, fronting on Broad street twenty-one feet, and running back seventy-five feet, bounded by Healey’s lot on the south, and by lot belonging to said Parker on the east, leased to B. N. Williford, north by lot belonging to said Parker, and fronting west on Broad street, together with all and singular the edifices, buildings, rights, members, hereditaments and appurtenances to the same belonging, or in any wise appertaining, and all the estate, right, title, interest, property, claim and demand whatsoever, in law or in equity, of the said party of the first part, of, in, or to the1 same; and the reversion and reversions, remainder and remainders thereof. To have and to hold the said premises hereby granted and released, with the rights, members, hereditaments and appurtenances thereunto, and every part and parcel thereof unto the said party of the second part, his successors in office and assigns forever, to the only proper use and behoof of the said party of the second part, his successors in office and assigns forever ; upon condition, nevertheless, that if the said party of the first part, his heirs, executors, administrators or assigns, shall fully and faithfully pay to said party of the second part, his successors in office or assigns $1,000, according to the tenor and true intent and meaning of his certain promissory note, bearing even date with these presents, and duly made and executed by said party of the first part to the said party of the second part, payable on demand, according to the constitution and by-laws of said Association, with interest at the rate of six per cent, per annum, payable monthly, then this present indenture and the estate hereby granted, and every article and clause herein contained, as well as the said promissory note, shall cease and become utterly void. And it is hereby mutually covenanted and agreed between the parties to these presents, that if default shall be made in the payment of the principal, secured to be paid to the said party of the second part, whenever the same shall be demanded, according to the constitution and by-laws of said Association, and the interest which shall accrue thereupon, at any time or times on which they shall be due, or if any part of such principal or interest, that then and from thenceforth it shall be lawful for the party of the second part, his successors in office or assigns, to grant, bargain, sell and dispose of the said hereby granted premises, and all benefit and equity of redemption of the said party of the first part, his heirs, executors, administrators or assigns therein, according to the charter, by-laws, rules and regulations of said Association, rendering the overplus of the purchase moneys to be obtained for the same, after full satisfaction of the principal and interest to be due on such promissory note, in manner afoi’esaid, and the charges for advertisement and sale, and attorney’s fees, cost of Court, and expenses of foreclosure, if any there shall be, unto the said party of the first part, his heirs, executors, administrators or assigns; and the said party of the first part agrees to give such additional security for said loan, to the said party of the second part, ■as may be required, according to the constitution and by-laws of said Association; and .................., the wife of the said party of the first part, hereby releases and relinquishes to the said party of the second part, all her right to dower that she now has or may hereafter have in and to the premises herein described and conveyed.</p> <p>“In witness whereof, the said party of the first part hath hereunto set his hand and seal, on the day and year first above written. (Signed)</p> <p>A. M. PARKER, [l. s.] Signed, sealed and delivered in presence of (Signed) John T. Cooper,</p> <p>(Signed) Daniel Pittman, Ordinary.</p> <p>Canceled.</p> <p>(Signed) N. R. Fowler, Treasurer,</p> <p>Recorded September 2d, 1866.</p> <p>(Signed) W. R. Tenable, Clerk.”</p> <p>Defendant introduced the original deed from plaintiff to defendant for the property agreed to be conveyed. It was dated 30th of March, 1868, the consideration therein expressed was $6,500, and the deed was in the usual form of fee-simple deeds.</p> <p>Defendant then put in evidence a writing as follows :</p> <p>«STATE OF GEORGIA — Fulton County.</p> <p>« To Noah B. Fowler, Treasurer of the Fulton Loan and Building Association, and to all whom it may conoern:</p> <p>«This writing will witness that I, A. M. Parker, for and in consideration of full value received, have transferred, assigned and set over to the Fulton Loan and Building Association, all the shares of stock I hold and control in the same, being one hundred shares therein, and the said Noah R. Fowler, treasurer as aforesaid, is hereby authorized and requested to make such transfer, or cancel the same on the books of the company, accordingly.</p> <p>«Witness my hand and seal this, 30th day of March, 1868. Mortgage on Broad street property to remain solely as collateral security for covenant of warranty deed, this day given.</p> <p>(Signed.) A. M. Parker.”</p> <p>In rebuttal, plaintiff testified as follows:</p> <p>The matter of usury was not in controversy between plaintiff and defendant, at the time of said settlement in March, 1868, nor before. Nothing was said about usury then, or before, to him, and the matter of usury was not covered by that settlement. He had not demanded any deduction from defendant’s claims on the ground of usury. The written proposition was the only one ever made by defendant to him for a settlement, and contains all the matters settled. He did not then know that he had any claim for usury against defendant. He thought the settlement a hard one, but supposed defendant had the advantage of him, and that he could do no better. He had complained of the ambiguity of one article of the constitution, by which a borrower upon settling, as he was, met with harder terms than he might anticipate, but yielded to defendant on that point.</p> <p>His property was worth $6,500 and more, in cash, at the time he conveyed it to defendant.</p> <p>The jury returned a verdict for the defendant. Whereupon plaintiff moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the verdict of the jury is strongly and decidedly against the weight of the evidence and unsupported by the evidence.</p> <p>2d. Because the verdict is contrary to law, equity and justice.</p> <p>3d. Because the Court erred in refusing to allow plaintiff to show his pecuniary condition and monetary necessities at the time he obtained the money from defendant.</p> <p>4th. Because the Court erred in refusing to allow plaintiff's counsel to place in the hands of plaintiff, when on the stand as a witness, the bill of particulars annexed to the declaration for the purpose of enabling plaintiff to refresh his memory as to the dates and amounts of the items thereof, after plaintiff had stated he could not, from mere memory, state the dates and amounts of most of said items.</p> <p>5th. Because the Court erred in permitting J. E. Wallace when on the stand as a witness for defendant, over the objection of plaintiff, to testify as to the value of the real estate conveyed by plaintiff to defendant, in pursuance of the settlement of March the 8th, 1868, with the view of showing said real estate to have been worth less than the price agreed upon by the parties at the time.</p> <p>6th. Because the Court erred in charging the jury “That the papers which have been submitted to you in this case do not show a usurious contract, but the contract, as shown by the papers, is not usurious. Look at all the circumstances and see if the contract, as shown by the papers, was made in good faith ; if so, the transaction is not usurious. If you should find that the contract was not an artifice resorted to for the purpose of concealing the true character of the transaction, then the plaintiff could not recover; but if you believe the contract was an artifice or contrivance designed to conceal the true nature of the transaction, then plaintiff would be entitled to recover the usury paid.”</p> <p>7th. Because the Court erred.in charging the jury thus: “If the contract was that plaintiff was to obtain money, and it was contemplated that in a certain contingency that might arise, Parker might not have to pay more than principal and legal interest, then it is not usury; each took his chance.”</p> <p>8th. Because the Court erred in charging the jury thus: “If there had been transactions between the parties and they met together and, by agreement, plaintiff conveyed real estate to defendant for the purpose of paying defendant’s demand, also to obtain, as part purchase money of the land, a further sum of money, which real estate defendant received in satisfaction of defendant’s demand, and defendant paid to plaintiff the balance of the estimated value of the land in money, plaintiff could not recover in this action unless before suit commenced defendant had converted said land into money by sale.”</p> <p>9th. Because the Court erred in charging the jury thus \ “If the jury find that there was an adjustment between the parties, mortgages and notes given up by defendant, and land conveyed by plaintiff in pursuance of that adjustment, and in that adjustment all the money paid by Parker was taken into consideration directly or indirectly, that ends the matter; whether it was called usury or not makes no difference, such would be an accord and satisfaction.”</p> <p>10th. Because the Court erred in refusing to charge the jury as requested in writing by plaintiff’s counsel as follows, to-wit: “The subsequent taking of more than lawful interest is presumptive evidence of an original usurious contract.” 11th. Because the Court erred in refusing to charge the jury as requested in writing by plaintiff’s counsel as follows, to-wit: “ There must be a usurious intention or there is no usury • but if one makes a bargain for more than legal interest, believing that he has a right to make such a bargain or that the law gives him all that he claims, this is a mistake of law and does not save the party from the effect of usury.”</p> <p>12th. Because the Court erred in refusing to charge the jury as requested, in writing, by plaintiff’s counsel, as follows, to-wit: “If the jury believe, from the evidence, that plaintiff conveyed to defendant real estate in payment of the demand then held by defendant against plaintiff, and the said real estate was received as payment by defendant, then such payment would have the same effect in this case as if so much money had been paid and received.”</p> <p>13th. Because the Court erred in refusing to charge as requested by plaintiff’s counsel, in writing, as follows, to-wit: “ That the price of the real estate, so conveyed and received, which the parties placed upon it was binding upon them in this suit.”</p> <p>14th. Because the Court erred in refusing to give to the jury, as requested, in writing, by plaintiff’s counsel^ the following charge, to-wit: “A settlement does not necessarily amount to a compromise, nor to an aceord and satisfaction; there may be a settlement without a compromise, or without accord and satisfaction.”</p> <p>15th. Because the Court erred in refusing to charge the jury as requested, in writing, by the counsel for plaintiff, as follows, to-wit: “To sustain the plea of accord and satisfaction in this case, it must appear from the evidence, to the satisfaction of the jury, that the matter of usury was in controversy between both plaintiff and defendant at the time of settlement, and that the same was taken in and actually settled between the parties, and that, in and by said settlement, some advantage, legal or equitable, enured to plaintiff. If the matter of usury was not, on the part of each party, intentionally settled and adjusted in said settlement, then such settlement is no aceord and satisfaction of the plaintiff’s claim for usury, sued for in this action.”</p> <p>16th. Because the Court erred in refusing to charge as requested, in writing, by plaintiff’s counsel: “That there is no special form or expression necessary to constitute a usurious bargain. If the intention is, substantially, that one should loan his money to another, who shall therefor, in any manner whatever, pay to the lender more than legal interest, it is a case of usury.”</p> <p>17th. Because the Court erred in refusing to charge the jury, as requested, in writing, by plaintiff’s counsel: “ That if the jury should believe, from the evidence, that the contract between the parties was usurious, and that the matter of usury was not compromised in any settlement, then plaintiff would be entitled to recover the amount, whatever it is, which the evidence shows plaintiff paid defendant over and above the principal borrowed and legal interest thereon, to time of payment, with interest on said excess from the date of the payment of said excess.”</p> <p>18th. Because the Court erred in refusing to charge the jury as requested, in writing, by plaintiff’s counsel: “ That if the jury should believe, from the evidence, that, at the time of settlement, defendant’s demand exceeded principal and lawful interest, and plaintiff settled with defendant without setting up any objection of usury or claim of usury, such settlement would not bar plaintiff’ from afterwards suing for and recovering the usury.”</p> <p>19th. Because the Court erred in putting a construction on the contract, and in charging the jury so, when the construction, under the facts of the case, was for the jury to decide, and not for the Court.</p> <p>The motion for a new trial was overruled by the Court, and plaintiff’ excepted, and assigns said ruling as error upon each of the aforesaid grounds.</p>

<p>1. Where the affidavit to foreclose a lien on a steam saw mill, under the Act of 1868, alleges that deponent was employed by Wall, the owner or lessee of a steam saw mill situated in the county of DeKalb, as a laborer in and about said mill, for which services there is due deponent $51 50; that he has demanded payment of said Wall, and he has failed and refused to pay the same; that this prosecution is within one year from the time the debt became due, as will more fully appear by refer-encf "V the bill of particulars hereto annexed; that 'deponent claims a lie« /on said mill for the amount so due him as aforesaid, it is in substance a compliance with the provisions of the Act under which plaintiff was proceeding. (R.)</p> <p>2. The Courts are bound to take judicial cognizance of the fact that the county of DeKalb is located within the State of Georgia. (R.)</p> <p>3. Where the bill of particulars attached to the affidavit consisted of a due bill for the amount claimed, made by Wall, it was competent for plaintiff to show that it was given for the services specified in the affidavit, that Wall was in possession of the mill at the time of the foreclosure of the lien, and of the levy of the execution thereon. (R.)</p>

Harbor. Penalty.' Attachment. Before Judge Sessions. Glynn Superior Court. November Term, 1872.

<p>Equitable mortgage. Tender. Scaling Ordinance. Injunction. Before Judge Greene. Henry Superior Court. April Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>Homestead. Encumbrance. Novation. Tried before Judge Andrews. Oglethorpe Superior Court. October Term, 1870.</p> <p>On the 17th day of September, 1869, a mortgage fi.fa., issued on May 8th, 1870, based upon a mortgage executed by Henry Hawks and George F. Hawks on February 15th, 1867, in favor of Warren Hawks and Thomas 33. Hawks, was levied upon the land described in said mortgage.</p> <p>George F. Hawks filed an affidavit of illegality, upon the ground that two hundred and ninety-four and a half acres of said land, levied on, together with other land belonging to him, making in all four hundred and eighteen acres, was set apart to him as a homestead on May 22d, 1869.</p> <p>It appeared from the evidence that the plaintiffs in fi.fa., as administrators, on the first Tuesday in January, 1866, sold one thousand acres of land to the defendant, Henry Hawks, and one James Smith, who gave their joint note, with mortgage, in payment of the balance of the purchase-money, at the same time receiving a deed to the property. That on February 15th, 1867, Smith and said Henry Hawks divided the land, the former taking four hundred acres, paying in full for his share, the latter taking six hundred acres. That Henry Hawks sold to the defendant, George F. Hawks, two hundred and ninety-four and a half acres, the land in dispute, and executed to him a deed; that on the same day, to-wit, February 15th, 1867, the note and mortgage aforesaid were delivered up, and a note and mortgage given by the defendants on the whole six hundred acres. That George F. Hawks never gave Henry Hawks any note for said land, and received no other consideration for his undertaking in the last note mentioned except the two hundred and ninety-four and a half acres of land aforesaid; that said two hundred and ninety-four and a half acres of land was set apart to George F. Hawks as a homestead on May 22d, 1869.</p> <p>The jury found the two hundred and ninety-four and a half acres aforesaid not subject to the execution.</p> <p>Plaintiff in fi.fa. moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the Court refused to charge the jury “that if they believed that the consideration for which George F. Hawks signed the note upon which the fi.fa. levied is based, is the purchase-money of the land levied on and set apart as a homestead for the said George, that they must find the land subject to the said fi.fa.; that if they believed that the land which has been set apart as a homestead for George F. Hawks was the consideration for which George F. Hawks signed the note upon which the fi.fa. levied is based, they must find the land levied on subject to said fi.fa.”</p> <p>2d. Because when plaintiffs in fi. fa. requested the Court to charge “that any one holding a debt for the purchase-money of laud, whether the land of the holder or of any one else, can enforce the claim against the land,” the Court charged the jury “that any person having legally the control of the debt due Henry Hawks by George F. Hawks, could enforce it against the land bought by George of Henry; but this fi.fa. is levied on six hundred and twenty-two acres of land, and George bought of Henry less than three hundred acres. In this there has been no transfer of a debt of Henry against George to any other person.”</p> <p>3d. Because the Court erred in the following charge to the jury: “that the consideration of the note upon which the fi. fa. levied is founded was the extinguishment of the note given by Henry Hawks and James Smith to the plaintiffs, as administrators.”</p> <p>4th. Because the verdict is contrary to law and the evidence.</p> <p>The Court sustained the motion and ordered a new trial. The defendant excepted and assigns said ruling as error.</p> <p>J. D. Mathews, for plaintiff in error. The doctrine of novation is conclusive in this case: 1st Pars, on Con., 187 et seq.; 40th Ga. R., 423; lb., 193, 487.</p>

<p>Criminal law. Malpractice. Continuance. Indictment. Practice. Custom. Newly discovered evidence. Pleading. Joinder of counts. Verdict. Before Judge Hopkins. Pulton Superior Court. October Term, 1871.</p> <p>Eor the facts of this case, see the decision.</p>

Criminal 3aw. Burglary in the night time. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. William Williams was tried for the offense of burglary in the night time.

<p>' Possessory warrant. Principal and agent. Promissory notes. Before Judge Green. Rockdale Superior Court. September Adjourned Term, 1871.</p> <p>For the facts of this case, see the decision.</p>

New trial. Evidence. Before Judge Wright. Eayette county. At Chambers. January 15th, 1872. There having been no record forwarded in this case, it is impossible to give a full report of the same. It may be inferred from the bill of exceptions that Glenn, Wright & Carr sued out a factor’s lien against S. T. W. Minor for an indebtedness contracted by him in the purchase of a commercial fertilizer known as Zell’s guano.

<p>A judgment based upon a noté for the hire of a negro, being the oldest, is entitled to a fund in Court for distribution. (R.)</p>

Proceedings against intruder. Counter-affidavit. Before Judge Wright. Campbell Superior Court. October Adjourned Term, 1871. C. M. Dodson sued out a warrant against Susan Paige, as an intruder, for the possession of a certain lot of land in the county of Campbell.

<p>Attachment bond. Attorney and client. Amendment. Before Judge Wright. Carroll Superior Court. April Term, 1872.</p> <p>For the facts of this case, see the decision.</p> <p>Oscar Reese, represented by W. D. Ellis for plaintiff in error, submitted the following brief: An attorney may sign his client’s name to an attachment bond: Code, sec. 3201. Attachment laws are liberally construed : 36 Ga. R., 90. Substantial compliance as to bond sufficient: Dudley’s R., 69 ; 3 Ga. R., 271; 5th Ibid., 178; Code, sec. 4. An instrument may be binding though signed in the body of it or on the back: 26 Ga. R., 223; Chitty on Contracts, 71. Principal bound when : 39 Ga. R., 35. Attachment bonds are amendable: Code, sec. 3240; 27 Ga. R., 65; 29th Ibid., 642. Appearance and pleading waives process and the service thereof: Code, secs. 3233, 3259. No declaration shall be dismissed because the attachment has been dismissed : Code, see. 3233.</p>

<p>Trover. Conversion. Promissory note. Before Judge Hopkins. Fulton Superior Court. October Term, 1871.</p> <p>R. S. Pomeroy brought trover against Alvin K. Seago for a promissory note made by one A. M. Parker, principal, and W. J. Joiner, security, payable to L. W. Summerlin or bearer, dated January 4th, 1860, and due December 21st, 1860, for $450, with the following credits indorsed thereon, to-wit: March 5th, 1861 — Received on this note $20 00. March 5th, 1861 — Received on this note $25 00. May 31st, 1861 — Received on this note $25 00; which said Seago, on February 22d, 1866, converted to his own use.</p> <p>It appeared, from the evidence, that plaintiff, on February 22d, 1866, placed the note described in the declaration in the hands of one Joe Beerman, now deceased, for collection and took a receipt, as follows :</p> <p>“Received, February 22d, 1866, of R. S. Pomeroy, a note signed by A. M. Parker and William J. Joiner, dated January 4th, 1860, payable 25th day of December of the same year as given. The above note is given to me to be collected; if not collected, to be returned to R. S. Pomeroy, when called for. [Signed] Joe Beerman.”</p> <p>That having heard from Parker, the maker, that it had been in possession of defendant, plaintiff demanded the note from him; the demand was in writing, made on September 10th, 1867; that defendant refused to deliver up the note, saying that he had purchased it from Joe Beerman ; that A. M. Parker was solvent and the note could have been collected ; that the demand was before suit brought; that a verbal demand had been made from one to three months before the written; that on June 30th, 1866, defendant called on Parker and requested him to give a new note, which Parker did ; that the new note was dated June 30th, 1866, and was for $506 40, with interest from date; that Parker afterward paid off the note, or, rather, the judgment obtained upon it, to the attorneys of McCoy, of North Carolina; that McCoy was plaintiff in fi.fa.</p> <p>The plaintiff elected to take a verdict for damages.</p> <p>The jury found for the plaintiff $650 20. The defendant moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the Court erred in charging the jury, “that if the testimony showed that the plaintiff was the owner of the note in question, and that he placed it in the hands of Beer-man for collection after it had become due, and further, that Beerman did not collect the note but sold it to defendant, and the plaintiff made demand upon defendant for the note before suit brought, and defendant failed to deliver the note, plaintiff is entitled to recover.”</p> <p>2d. Because the Court erred in charging the jury, “that the note itself was prima faeie evidence of its value, and, unless the proof shows that the note was not worth as much as it called for, plaintiff is entitled to recover the amount of the note, principal and interest, provided he has shown that he is entitled to recover at all.”</p> <p>3d. Because the verdict is contrary to law and to evidence.</p> <p>The motion for a new trial was overruled by the Court, and defendant excepted and now assigns said ruling as error.</p>

<p>A widow, who has no children, living with her, dependent on her for support, is not entitled to a homestead out of the property of her deceased husband, as the head of a family, according to the true intent and meaning of the Constitution of 1868. (R.)</p>

Injunction. Construction of contract. Parol evidence. Before Judge Hopkins. Fulton county. At Chambers. July 6th, 1872.

<p>Relief Act of 1870. Injunction. Before Judge Greene. Henry Superior Court. October Term, 1871.</p> <p>Thomas Hambrick purchased, in December, 1860, from John Dickey, a certain tract of land for $4,000, paying $2,000 in cash and giving his notes for the balance, payable at one and two years. In the year 1867, John Dickey recovered judgment on said notes and levied the execution based thereon upon the said land. Hambrick has been, from the time of the purchase and is still, in possession of the property. He filed his bill to enjoin the sale under said levy, setting up the relief contemplated by the Act of October 13th, 1870, also the non-payment of taxes by Dickey. A temporary injunction was granted. Upon the hearing of the motion to continue said injunction, the Chancellor directed “that the said injunction be dissolved and the bill be dismissed on the ground that the fi. fa. is founded on a debt for the purchase-money of the land levied on, and in possession of which complainant has been since the said debt was sued on until this time.” Whereupon the complainant excepted, and now assigns said ruling as error.</p>

<p>When a suit was brought on a promissory note, signed by one claiming to be the agent of the defendant, and there was some evidence that the defendant had accepted, knowingly, the consideration for which the note was given:</p> <p>Held, That it was error in the Court to rule out the note as evidence. The case should have been submitted to the jury, under the charge of the Court, as to the effect of the defendant’s act, should they believe he had accepted, knowingly, the consideration for which the note was given.</p>

Injunction. Condition in deed. Covenant. Notice. Estoppel. Before Judge Cole. Bibb county. At Chambers. July 11th, 1872. Edwin R. Anthony and his wife, Susan S. Anthony, filed their bill against Alexander H. Stephens, William P. Carlos, Austin Brighthaupt and his wife, Rose Brighthaupt, making the following case: Susan S. Anthony, while a widow, purchased three lots in the city of Macon, lying side by side.

County Court. Appeal. Collateral issue. Before Judge Clark. Lee Superior Court. March Term, 1872. B. B. Odom obtained a rule absolute against William C. Gill, former sheriff of Lee county, at the February Term, 1861, of Lee Inferior Court, requiring him to pay to said Odom the sum of $304 50 principal, and $15 85 interest, within sixty days, or on failure thereof to be attached for contempt. The money was never paid.

<p>1. Where there is no ambiguity on the face of a will, parol evidence is inadmissible to explain it. (R.)</p> <p>2. Where a will provided that, as testator’s children should marry or come of age, the executor should give off such portions of the property as he thought proper, the title to the same remaining in the estate until the youngest child should marry or come of age, when it should be brought into the general fund and a final division take place, and in case all the children should die without leaving children at the time of their death, then the property to pass to the Inferior Court of Putnam county, for certain specified purposes, and the youngest having survived all the children, and having been placed in possession of the entire estate, and having died after he arrived at full age, leaving two children:</p> <p>Held, That the purchasers, under an execution against said youngest child, obtain a valid title thereto as against his children. (R.)</p>

<p>Chattel mortgage. Attestation. Probate. Description. Record. Notice. Affidavit. Attorney and client. Before Judge Stjrozier. Worth Superior Court.' April 10th, 1872.</p> <p>Ou January 18th, 1870, Carles Johnson made the following instrument:</p> <p>“ $200. By the first day of February next, I promise to pay Margaret J. Hampton, or bearer, two hundred dollars for value received in a bay mare and buggy, Margaret J. Hampton holding a lien on said horse and buggy until it is paid for. (Signed)</p> <p>“CARLES JOHNSON.</p> <p>“Attest: F. Lehman.</p> <p>“Albany, Georgia, January 18tb, 1870.”</p> <p>A second instrument, of similar character, was executed by tlie same maker, on the same day, for the sum of $150, due the 1st day of March next thereafter.</p> <p>Said instruments were admitted to record on the following affidavit, on March 2d, 1870:</p> <p>“ GEORGIA — Dougherty County :</p> <p>“Before me, the subscriber, personally came Fred Lehman, who, on oath, says that he saw Carles Johnson sign and deliver the within notes as therein stated, and that deponent was a witness to the same, and has so signed them.</p> <p>“FRED LEHMAN. “Sworn to and subscribed before me this March 2d, 1870.</p> <p>(Signed) “ L. D. P. Warren, N. P.”</p> <p>On March 3d, 1870, S. S. Yopp made the following affidavit, based upon the foregoing instruments :</p> <p>“ GEORGIA — Dougherty County :</p> <p>“Before me, the subscriber, personally came Sidney S. Yopp, agent for Margaret J. Hampton, who, on oath, says that Carles Johnson, of Worth county, is due the said Hampton, on the annexed mortgage, the sum of $350, principal, and $1 50, interest, and this affidavit is made to obtain the foreclosure of said mortgage. (Signed)</p> <p>“S. S. YOPP.</p> <p>“Sworn to and subscribed before me this March 3d, 1870.</p> <p>(Signed) “W. H. Wilder, Ordinary.”</p> <p>The order of foreclosure was passed on the same day that the foregoing affidavit was made, and execution issued, which was duly levied on the bay mare described in the foregoing instruments. Harrison Nichols filed his claim to said property.</p> <p>Upon the trial of the issue formed by the claim, the claimant moved to dismiss the levy upon the following grounds, to-wit:</p> <p>. 1st. Because the paper, pretending to be the mortgage of plaintiff in fi. fa., was not witnessed by any officer authorized to attest the same.</p> <p>2d. Because the probate of said instrument was made before a Notary Public, who was one of the attorneys for plaintiff in jd. fa.</p> <p>3d. Because the paper, if properly attested, was not a mortgage.</p> <p>4th. Because S. S. Yopp, who made the affidavit foreclosing the mortgage, does not swear he is agent for plaintiff, or show other authority of agency to foreclose the same.</p> <p>The motion was overruled by the Court, and claimant excepted.</p> <p>The plaintiff in fi. fa. introduced the mortgage, the affidavit and order of foreclosure, and identified by G. J. Wright the mare levied on.</p> <p>The claimant testified that he bought the mai’e from Carles Johnson a month before he knew of the plaintiff’s claim; that he knew nothing of any claim against the mare at the time he bought her; that the levy on the mare was made on the 4th of March, 1870.</p> <p>The Court charged the jury as follows, to-wit: “That if the defendant in fi. fa. made and executed, in the presence of a witness, the paper read to you as a mortgage on the horse claimed, on the 18th of January, 1870, and that said witness did, before a Notary Public, (and that Notary Public was one of the attorneys for plaintiff,) on the 2d day of March, 1870, prove the execution of said paper, and the same was put on record within three months from the date of the signing, that although claimant may have purchased the horse without notice of the lien, and, one month before, the same was proven before the Notary Public, and, although the Notary Public’s signature was not attested by a seal, yet, they should find the horse subject.”</p> <p>The jury found the mare subject to plaintiff’s execution, and claimant excepted to the refusal of the Court to dismiss the levy, and to the charge of the Court, as given, and assigns the same as error.</p>

<p>Pleading. Administrators. Tried before Judge Robinson. Baldwin Superior Court. February Term, 1872.</p> <p>Charles DuBignon and David J. Bailey, as administrators of Seaton Grantland, deceased, brought complaint against Spalding Kenan, as executor of Augustus H. Kenan, deceased, for $3,326 37, alleged to have been collected by said testator as attorney at law for plaintiffs, and for which he had failed to account.</p> <p>The defendant pleaded the general issue, and set-off to the amount of $2,000 for fees due to defendant’s testator for professional services rendered to plaintiffs.</p> <p>Upon the trial, plaintiffs tendered in evidence a certified copy of the order of the Court of Ordinary for the county of Baldwin, dated May 7th, 1866, appointing Charles DuBignon and David J. Bailey, administrators, with the will annexed, upon the estate of Seaton Grantland, deceased, “ upon their entering into bond for the sum of $600,000.” Also, a paper purporting to be letters of administration, with the will annexed, of Seaton Grantland, deceased, naming Charles DuBignon and David J. Bailey as such administrators, dated May 7th, 1866. The paper recited that said DuBignon and Bailey had given bond.</p> <p>The defendant objected to both of said papers, upon the ground that they showed a grant of administration to the plaintiffs, with the will annexed, of Seaton Grantland, upon the personal bond of the plaintiffs, without security, as required by positive law, and did not, in themselves, show any right or jurisdiction in the Ordinary to grant administration without bond and security in double the amount of the estate. The objection was overruled by the Court and defendant excepted.</p> <p>Evidence was introduced as to the indebtedness of defendant’s testator to plaintiffs, unnecessary here to be set forth.</p> <p>The plaintiffs having closed, defendant moved for a non-suit, on the ground that there had been no evidence introduced to show plaintiffs to be the lawful administrators, with the will annexed, of Seaton Grantlaud, deceased. The motion was overruled and defendant excepted.</p> <p>The jury returned a verdict for the plaintiffs for $2,893 74. The defendant moved for a new trial, upon the following grounds, to-wit:</p> <p>1st. Because the Court erred in overruling the motion for a non-suit.</p> <p>2d. Because the verdict was contrary to evidence.</p> <p>The defendant made no objection as to the verdict of the jury, provided the plaintiffs be held on their foregoing evidence to be lawful and valid administrators with the will annexed.</p> <p>The motion for a new trial was overruled by the Court and defendant excepted, and assigns error upon each of the aforesaid rulings.</p>

Sale. Warranty. Measure of damages. Rescission. Before Judge Gibson. Richmond Superior Court. January Term, 1872. Francis L. Neufville brought assumpsit against John M. Clark & Company for $5,000 damages, sustained by plaintiff on account of the failure of defendants to deliver seven hundred and four bags of clay peas, containing one thousand three hundred and seventy-eight bushels, of the same quality as the samples exhibited to plaintiff at the time the purchase was made.

<p>New trial. Verdict. Before Judge Robinson. Morgan Superior Court. March Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>1. When, on the trial of an indictment for an assault with intent to murder, it was discovered, after the argument to the jury had been begun, that there was a variance between the proof and the indictment as to the name of the person charged to have been assaulted, it was not error in the Court to permit the State to call witnesses to prove that the person named was known as well by the name mentioned in the indictment as by that mentioned in the proof.</p> <p>2. It is competent for the State to show on the trial of an indictment for assault with intent to murder, that the person assaulted was known by the name mentioned by the indictment, and also by another name, even though the indictment does not allege that he was known by the two names. It is a matter of description and does not stand on the footing of a misnomer of the defendant.</p>

Demurrer. Pleading. Taxes. Before Judge Johnson, Muscogee Superior Court. May Term, 1872. Plaintiff in error brought assumpsit against defendant in error.

Continuance. New trial. Before Judge Harvey. Chattooga Superior Court. March Term, 1872. Martha A. McConnell, as executrix upon the estate of William McConnell, deceased, brought complaint against Joseph M. Wardlaw, on a note dated January 18th, 1858, due one day after the date thereof, payable to J. T. McConnell, executor, for $726. The defendant pleaded the general issue, payment and set-off.

<p>The domicil or residence of a person of full age, and laboring under no disability, is the place or county where the family of such person shall permanently reside, if in this State, and suit should be there instituted against him. (E.)</p>

Covenants. Tender. Warranty. Before Judge Eobinson. Morgan Superior Court. March Term, 1872.

<p>Homestead. Purchase-money. Counter-affidavit. Before Judge Harrell. Stewart Superior Court. April Term, 1872.</p> <p>For the facts of the case, see the decision.</p>

Claim. Implied trust. Parol evideuee. Statute of frauds. Guardian and ward. Receipt. Before Judge Harrell. Early Superior Court. April Term, 1872. Mary J. Alexander, as the executrix of Martin T. Alexander, deceased, advertised certain real estate for sale, as the property of her testator, on the first Tuesday in December, 1871.

<p>1. Where a defendant is on trial for carrying concealed weapons, evidence as to his motive in placing the pistol in his pocket, is inadmissible. (R.)</p> <p>2. It was not error in the Court to charge “that the question for the jury to determine upon the evidence was, whether the defendant had or carried about his person a pistol, not being a horseman’s pistol, and not being had or carried about his person in an open manner, and fully exposed to view, that if he so had, as charged in the indictment, the time that he so had it was not important; if he for any length of time, however short, for a moment so had it. contrary to law, he was guilty of the offense, otherwise not.” (R.)</p>

Relief Act of 1870. Tax-affidavit. Claim. Before Judge Harrell. Stewart Superior Court. April Term, 1872. An execution in favor of Edmund H. Worrill against Charles B. Adams, administrator, and Holland Adams, administratrix of Samuel Adams, deceased, for $1,955 35, principal, and $600 61, interest, based upon a contract created before June 1st, 1865, was levied upon certain real estate, as the property of defendants in execution.

<p>Temporary administrator. Demurrer to bill. Insolvency. Individual liability. Before Judge Johnson. Talbot Superior Court. March Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Criminal law. Accessory before tlie fact. Confessions. Before Judge Sessions. Echols Superior Court. April Term, 1872. Aaron Smith was placed upon trial for being an accessory before the fact to the offense of arson, committed by Albert Franklin. Albert Franklin was present and testified on Smith’s trial. He had not then been placed on trial.

<p>Where a homestead in land is set apart, the applicant is entitled to the crops growing on the same. (R.)</p>

Tax-affidavit. Cross-bill of exceptions. Liability of Express Company. Fraud. Before Judge Cole. Bibb Superior Court. October Term, 1871. James A. Everett brought complaint against the Southern Express Company for $600, alleged to be the value of a diamond cluster pin delivered to said company at Fort Valley, Georgia, on June 12th, 1863, for transportation to Macon, Georgia, -which pin was never delivered at its point of destination.

Divorce. Witness. Charge of Court. New trial. Immaterial error. Before Judge Johnson. Talbot Superior Court. March Term, 1872. James Cook filed his libel for divorce against his wife, Martha J. Cook. The respondent made no defense. The libellant and his brother, John Cook, were introduced and proved adultery upon the part of respondent, and an immediate separation thereupon between the parties.

Injunction. Fraud. Levy. Tried before Judge Clark, Sumter county. At Chambers. July 17th, 1872. William Hooks filed his bill, setting up, substantially, the following facts: About January 29th, 1870, Alexander M. Little begged complainant to assist him in satisfying certain of his creditors who were resisting his application to withdraw his petition to be discharged as a bankrupt, which he had filed in the United States District Court for the Southern District of Georgia.

<p>Caveat. Administration. Eelief Act of 1870. Tax-affidavit. Before Judge Sessions. Ware Superior Court. March Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Warranty. Failure of consideration. Equitable remedy. Pleading. Amendment. Before Judge Clark. Schley Superior Court. April Term, 1872. Edmond I). Eason brought complaint against Samuel Smith upon a promissory note for $1,249, due January 1st, 1871. The defendant pleaded the general issue and partial failure of consideration.

<p>Set-off. Delivery. Factor. Notice. Before Judge Gibson. Richmond Superior Court. January Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Criminal law. Burglary. Indictment. Practice. New trial. Before Judge Clark. Sumter Superior Court. April Term, 1872.

<p>Execution against defaulting officer. Auditing Committee of the General Assembly. Principal and security. Before Judge Hopkins. Fulton Superior Court. At Chambers, July 23, 1872.</p> <p>The two cases above stated being identical in their character, were consolidated and heard together. Lewis Schofield and Yarney A. Gaskill filed their bill, containing, substantially, the following allegations: That on January 1st, 1870, Foster Blodgett gave his official bond to Rufus B. Bullock, Governor of the State of Georgia, in the sum of $20,000, conditioned for the faithful performance of the duties of said office as therein enumerated, as superintendent of the Western and Atlantic Railroad, and Hannibal I. Kimball, John Rice, Henry O. Hoyt and your orators, became his securities; that at a session of the General Assembly, 1871 and 1872, a committee was appointed by said body to investigate the management of the Western and Atlantic Railroad and its finances, as to the fraudulent use or embezzlement of any funds or property belonging to the State, and for other purposes therein enumerated; that said committee investigated the actings and doings of the said Foster Blodgett and alleges that he has in his hands, unaccounted for, $23,-321 67; that said account, as stated, does not appear to be for the earnings of the Western and Atlantic Railroad, but is predicated upon defalcations arising, if at all, in embezzlements from said road, and do not appear to be the earnings thereof; that said Foster Blodgett, superintendent as aforesaid, never sold at public outcry any iron of said road, or collected any of the proceeds of said sales ; that said committee had no authority to make any report whatever to the Comptroller General of said State, authorizing him to issue summary execution against Foster Blodgett and his securities, but was only authorized to report to the Legislature by which it was created; that said committee on May 23d, 1872, made out the annexed account and transmitted the same to Madison Bell, Comptroller General,- ordering and directing him to issue execution against Foster Blodgett and his securities for $20,000 with twenty per cent, per annum thereon, from January 1st, 1871; that said Comptroller General, upon the authority aforesaid, on May 29th, 1872, did issue an execution against the said Blodgett, and his securities, for $20,-000 and lawful costs; that A. M. Perkerson, deputy sheriff of the county of Fulton, on June 3d, 1872, levied said execution upon complainant’s property; that said deputy sheriff has advertised said property to be sold on the first Tuesday in July next; that immediately after the levy of said execution complainants filed their affidavit of illegality to said execution, which said deputy sheriff returned to complainants with the notice that he would disregard the same, a copy of which is hereto attached. Prayer, that said sale be enjoined until the further order of the Court.</p> <p>AFFIDAVIT OF ILLEGALITY.</p> <p>“Deponents say that said fi. fa. is proceeding against them illegally, and was issued against them illegally on the grounds, to-wit:</p> <p>1st. Because there is no law of this State authorizing the Comptroller General to issue an execution against the superintendent of the Western and Atlantic Railroad.</p> <p>2d. Because there is no law of this State authorizing the Comptroller General to issue an execution against the securities of the superintendent of the Western and Atlantic Railroad on his official bond.</p> <p>3d. Because, before the issuing of said execution, no officer of said road had caused the true amount due by said superintendent to be ascertained, as required by law; nor had any amount, so ascertained to be due, been transmitted to the Comptroller General as earnings of the road; nor had any superintendent of said road, nor had any person or officer thereunto lawfully authorized, caused the true amount due by said Foster Blodgett, as superintendent, to be ascertained and transmitted to the Comptroller General, as earnings of the Western and Atlantic Railroad.</p> <p>4th. Because, at the time of issuing said execution, there were no funds in the hands of said Foster Blodgett, as superintendent of the Western and Atlantic Railroad, and for which his sureties on his official bond were liable, unaccounted for.</p> <p>5th. Because, before the issuing of said execution, there was no superintendent of the Western and Atlantic Railroad, and the office of superintendent had been abolished by law.</p> <p>6th. Because, before the issuing of said execution, the said State of Georgia had brought suit in the Superior Court of Fulton county against said Foster Blodgett for all funds and property belonging to the State, alleged to be fraudulently used and embezzled by said Foster Blodgett, or wrongfully converted by him to his own use, and upon which issues are now pending and undisposed of in said Court, as deponents are advised and believe.</p> <p>7th. Because said execution was issued by the Comptroller General upon an account reported to him by a committee of the Legislature, based upon the alleged fraudulent and wrongful conversion of property and funds belonging to the State, by the said Foster Blodgett, to his own use, and upon such an account there is no authority of law for issuing summary execution by said Comptroller General; and for property and funds, so fraudulently embezzled, the securities upon his said bond are not liable.</p> <p>The second case is that of Martin J. Hinton, James L. Matthewson, PI. O. Ployt and Ephraim Tweedy, as securities of Foster Blodgett as treasurer of the Western and Atlantic Railroad, against said A. M. Perkerson, deputy sheriff et al., containing substantially the same allegations and the same prayer as the preceding bill. The execution sought to be enjoined by the second bill was for $25,519 44 and costs.</p> <p>The Chancellor refused the injunction prayed for, in the following decision :</p> <p>“This is an application for an injunction. The case stands upon the bill and exhibit.</p> <p>“The allegations are substantially these: On the 1st of January, 1870, Foster Blodgett gave bond as superintendent of the Western and Atlantic Railroad, and complainants and others became his sureties. Blodgett entered upon the duties of the office, and he continued to be superintendent until the office was abolished. At its session, 1871-2, the Legislature of the State appointed a committee to investigate the management of the road, and the management of its finances. That committee investigated the actings of Blodgett, and allege that he has in his hands unaccounted for $23,321 97 — a copy of the account being exhibited with the bill. It does not appear by the account that the sums mentioned are of the savings of the road. Nor does it appear to be the true account which has been made up, or caused to have been made up, by the superintendent, but it ‘is predicated upon defalcation, arising, if at all, in embezzlements from said road, and do not appear to be the earnings thereof/ as superintendent Blodgett bas never sold, at public outcry, after advertisement, any iron of the road, nor received any of the proceeds of such sales. The committee have no authority to make report to the Comptroller General, authorizing him to issue execution against Blodgett and his securities. On the 23d day of May, 1872, the committee made out the account before mentioned, and transmitted it to the Comptroller General of the State, ordering him to issue execution against Blodgett and securities for §20,000, (the penalty of the bond,) with twenty per cent, per annum from January 1st, 1871. That officer, upon that authority, on the 29th of May, 1872, issued an execution against Blodgett and his securities, for §20,000, and a copy of the execution is exhibited. It was placed in the hands of defendant, who levied it upon the property of complainants. Complainants presented an affidavit of illegality, which the defendant returned with notice that he should disregard it, and is proceeding to sell. The affidavit of illegality is exhibited with the bill.</p> <p>“Do the complainants in this bill make a case that entitles them to the interposition of the powers of a Chancellor? This is an appeal to the extraordinary powers of the Court, and the plaintiffs are bound to make out a case showing a clear necessity for its exercise.</p> <p>“ It is important to ascertain what relation Foster Blodgett bore to the State. The Western and Atlantic Railroad is the property, exclusively, of the State. The superintendent was the chief officer. Before entering on his duties, he gave bond and security in the sum of §20,000, and the bond was filed and recorded in the office of the Comptroller General. He had authority to conduct all the operations of the road connected with its repairs, equipment and management, including its financial affairs; to sue, officially, for any claim due the State on account of said road; to see that the books and accounts of the road were so kept as, at all times, to show accurately its official affairs; to sell useless iron, after thirty days’ notice, for cash or credit; to have weekly settlements with all fiscal agents of the road for all moneys received by them. Each agent having funds of the road was required to make out, monthly, and sign a statement of his account, and any officer or agent failing to pay over funds collected by him weekly, or failing to furnish the superintendent with a monthly statement was to be dismissed by him. When such dismissal took place, an account was to be had at once of all the freight on hand, giving the person dismissed a credit therefor, so as to show the amount of his indebtedness.</p> <p>“ Section 996, Revised Code, is this: cAs soon as an agent, or any other person having funds of the road unaccounted for, is in default, and fails to pay Over said funds on demand made by the superintendent, or by his authority, or shall abscond or conceal himself, or in any other way evade or prevent a settlement, said officer shall promptly cause the true amount due by such person to be ascertained and transmit the same to the Comptroller General as earnings of the road, stating also the date of the default/</p> <p>“ The bonds of all the officers and agents were to be lodged in the Comptroller General’s office. All debtors to the road were as debtors to the State or the public, and ‘ the remedy of the State against the superintendent, the treasurer, auditor and other officers and agents, is the same as against tax collectors or receivers.’</p> <p>“The net proceeds of the road were to be paid monthly into the State treasury, and were one of the sources from from which the State does or may derive revenue other than by taxation.</p> <p>“ From this general statement of the various sections of the Code which are applicable to the matter of inquiry, I may assume, as being incontrovertible, that the superintendent, as the chief officer of the road, had the general management of all its affairs, he had power to receive or collect money belonging to it, and when so received, it was his duty to pay it to the treasurer, and to have the transaction appear on appropriate books, to be kept for that purpose. The books and accounts of the road could not, {at all times, show accurately the fiscal affairs,’ if they failed to disclose an amount of money that might be in the superintendent’s hands. Complainants undertook, in their bond, that Blodgett should have these books kept, and that he should pay into the treasury the money that he received. It is conditioned in the bond, as appears from the statement of the public officer who is charged with its custody, that Blodgett should * well and truly perform all the duties required of him by law, and well, truly and faithfully account for all moneys and property that might come to his hands, by virtue of his appointment, and do all other acts required of him, in said office, according to law anc] the trust reposed in him.’ It is further indisputable, that, for a failure to do his duty, the State had the same remedy against him, whatever that might be, that it had against' tax collectors or receivers. That is the express language of the law. The remedy against a tax collector is an execution from the Comptroller General against him and his sureties for the amount of his default. At this point a question of difficulty arises. How is the Comptroller General to be advised of the amount of the superintendent’s indebtedness? As to all the other officers and agents there is no trouble. It was the duty of the superintendent to ascertain and transmit the amount as prescribed by section 996. But that section does not apply to the superintendent. It contemplates, on one side, an agent, or any other person, in default, failing to pay on demand, or evading or preventing a settlement, and, on the other side, the superintendent making the demand, and on failure to get a settlement, ascertaining the amount and transmitting it to the Comptroller General. The superintendent is, in the section, on one side, the collecting side. He may be taken out of that, but the difficulty lies in putting him on the other side. Changing the collecting agent would not enlarge the meaning and scope of the other part of the section. It would remain as before, and if in the beginning, it did not embrace the superintendent, ,he would not then be embraced.</p> <p>“I think it is true that the superintendent undertook to faithfully account for the public money and property; that, on Iiis failure to do so, the Comptroller General was required to issue an execution for the amount of the default, and that there was no express provision of law prescribing the mode of informing the Comptroller General of the amount. And thus the law stood when the office of superintendent was abolished.</p> <p>“It is better to pause here and look more closely into the remedy that the State has. It is precisely that which it has against tax collectors or receivers.</p> <p>“By section 911 of the Code, ‘if any collector shall fail to settle his accounts with the Comptroller General in the terms of the law, he shall issue execution against him and his sureties for the principal amount,, with the penalty and costs.’ Section 914 is in these words: ‘ Executions so issued shall not be suspended or delayed by any judicial interference with them, but the Governor may suspend the collection not longer than the next meeting of the General Assembly.’</p> <p>“ This remedy against the superintendent is an execution from the Comptroller General’s office against him and his sureties, and when so issued, it cannot be suspended or delayed by any judicial interference with it, but the Governor may suspend it. Such an execution has been issued in this case, and this bill is filed to interfere with and suspend it.</p> <p>“When the execution is issued by the Comptroller General, and shows on its face jurisdiction of the person and subject matter, has a Judge the power to look into it and determine whether it shall or shall not proceed ? If it issues or is proceeding wrongfully, but is, nevertheless, within the jurisdiction, can the judiciary interfere with it, and suspend or delay it ? Is the Executive alone entrusted with that power ? The complaint in this case is not that the Comptroller General had not jurisdiction of Blodgett and his sureties, and of the subject matter, but that he was moved to the exercise of the jurisdiction improperly.</p> <p>“ It is a principle pervading our system that the State in the collection of its revenue cannot, as a rule, be interfered with. It is the duty of the collectors, without judgment or trial, to issue executions against defaulting tax-payers, and section 3618 of the Code reads as follows: ‘No replevin shall lie, nor any judicial interference be had, in any levy or distress for taxes under the provisions of this Code, but the party injured shall be left to his proper remedy in any Court of law having jurisdiction thereof.’ To force the money from the pocket of the tax-payer, the collector is armed with the power of a process to collect, which, in the language of Judge Nisbet, is the highest, in its direct efficacy, known to the usage of constitutional government. With the collection of this revenue there can be no judicial interference, from the making of the demand of the tax-payer until it goes into the State treasury. If the citizen fails to pay, the collector makes him do so; if the collector fails to pay it over after he gets it over, the Comptroller General makes him and his securities do so. It is not because the money arises directly from taxation ; there is no peculiar charm in the word taxes, it is because it is a part of the revenue of the State. The principle applies to the public revenue, no matter from what source it arises.</p> <p>“This statute, on its face, contemplates a case in which wrong may be done to the individual against whom the process runs. It says that the process shall go on, shall do its work without interference, and ‘the party injured shall be left to his proper remedy in any Court of law,’ etc. Judge Nisbet, in Gledney vs. Deavors, 8 Georgia Reports, 484, in speaking of the lien of taxes on property, says: ‘The State must have her revenue at all hazards, hence these various stringent provisions of the law to restrain judgment. Prompt collection is as necessary as a lien. * * * * To collect her taxes, the State turns, with uncontrollable power, directly and instantaneously upon the property; and if, in the exercise of this stern but necessary attribute of sovereignty, the citizen is injured, his only redress is to petition to the Legisture.’ In Eve vs. the State, 21st Georgia Reports, the Supreme Court, by Judge Benning, says: ‘ Whether a claim for taxes is to be exacted or not, is a question everywhere, so far as I know, for the Executive, not for the judiciary. If the Executive exacts the claim and collects the money and it turns out that the claim was unfounded, the government itself gives redress — sometimes provides a mode by which redress may be obtained through the Courts. In every case, however, the money claimed or tax has first to be paid. If this is not uuiversally true it certainly is generally true.’</p> <p>“But suppose, although it should appear, as it does in this case, that the Comptroller General has jurisdiction of the person and subject-matter, still the Courts can interfere with the execution, and determine whether that officer proceeded regularly to the exercise of the jurisdiction, that is, that he ascertained the amount in the proper manner. It must be remembered that no complaint is made that the amount claimed is not due from Blodgett. That is not denied in the bill. There is no direct, unequivocal denial of the indebtedness in the affidavit of illegality. Then did the Comptroller General ascertain the amount in a legal manner?</p> <p>“Execution has been issued. It recites that it is done on the authority of a statement of Blodgett’s account, ascertained and made out by a committee of the Legislature. Complainants in that bill allege a want of authority on the part of the committee to ascertain and report the state of the superintendent’s account. One of the resolutions passed by the Legislature is in these words:</p> <p>“ Resolved, etc., That the committee appointed to investigate the management of the Western and Atlantic Railroad be directed to ascertain and state the accounts of the agents and other persons dealing with the Western and Atlantic Railroad and compel settlement of the same, and upon an amount being ascertained as due the Western and Atlantic Railroad, the State Treasurer be authorized to receive and receipt for the same.’</p> <p>“That committee states an account containing seven items in this manner:</p> <p>“Mr. Foster Blodgett, superintendent of the Western and Atlantic Railroad, for the year 1870, debtor to the State of Georgia, 1870, June 3d, to amount collected of the Scofield Rolling Mill Company, on account of old iron sold them belonging to the "Western and Atlantic Railroad.</p> <p>"Five of them are of a similar character, differing only in amount. Another is for amount collected of the Post Office Department, United States; and the remaining item is 'to amount received of I. P. Harris, Treasurer, etc., of the funds belonging to the Western and Atlantic Railroad, on pass bill seventy-one, July 1870, in the name of J. C. Smith.’</p> <p>"They transmit this account to the Comptroller General of the State, and certify, ' it is ascertained by the committee of the General Assembly, etc.; that there was due on the 1st day of January, 1871, and is yet due the State of Georgia from Foster Blodgett, superintendent of the Western and Atlantic Railroad, for the year 1870, of the funds of said Western and Atlautic Railroad, in his hands unaccounted for, the sum of $23,331 67,’ on the foregoing statement of account; that said sum was received by the said Foster Blodgett, as superintendent aforesaid, during the year 1870; that said Foster Blodgett absconds and prevents a settlement of said indebtedness. This statement of indebtedness is hereby transmit-ed to the Comptroller General that execution issue, according to the statute in such case provided, etc.’</p> <p>"The resolution required two things of the committee: They were first to ascertain the state of the aeeounts of agents and other persons dealing with the road, and second, to compel settlement of the amount ascertained to be due. How were they to ascertain the state of the accounts, and in what manner were they to compel settlement?</p> <p>" Accounts were to be kept on the books of the road — the law required that. It does not appear from this bill that the committee changed a figure on those books) or that they heard a word of testimony other than that furnished by the books and papers of the road. It is argued that they did. It is said by counsel that ex parte examinations of witnesses were had, and that hearsay testimony and unauthorized opinions were received and acted upon by the committee. It is not for me to inquire what effect, if any, such allegation, had it been made, would have had. It has not been made. There is no intimation in the bill of how the committee ascertains the amount. The presumption of law is that it was done rightly and properly, and nothing whatever is alleged to the contrary. The certificate and account disclose nothing more than an ordinary account of a business tranaction. There is on the face of these papers no other appearance of fraud than that which may exist in law where one person withholds the money of another.</p> <p>“ How were they to compel settlement ? By legal process. Just such means as the law had provided, they were to adopt. They could resort to the Comptroller General’s execution or to suit on the official bond. By the Code, section 943, the bond of the collector is not to be sued unless some emergency should make it necessary. The execution is the usual remedy and must be employed, unless somo emergency makes it necessary to resort to suit on the bond.</p> <p>“It is said that this is a hard case, and that by suffering this process to run its course, it may do great injustice to complainants.</p> <p>“ The remedy is a severe one, but every citizen of Georgia since the year 1804 has been subject to it. That it is for a large amount, does not affect the principle. The remedy lies with the Executive.</p> <p>“Complainants have failed in the bill to make a case that entitles them to an injunction.” To which ruling plaintiffs in error excepted, and now assign the same as error.</p> <p>B. H. Hill & Sons ; D. F. & W. R. Hammond ; Pope & Brown; A. B. Culberson; Gartrell & Stephens; Peeples & Howell, for plaintiffs in error, submitted the following brief:</p> <p>I.</p> <p>1. The resolutions organizing the Western and Atlantic Railroad committee, and defining its duties, did not empower the committee to adjust the account of the superintendent; the first one is confined to the investigation of “frauds and embezzlements,” etc., and the second one only authorizes the committee to adjust the accounts of “agents and other persons dealing with the road :” Acts 1871 — 2, pages 257, 329. (a) The terms, “agents and other persons dealiug with the road,” do not include the superintendent, because such is not the ordinary meaning of the language used: Code, sec. 4; and see Code, sec. 997; Acts 1858, p. 623; Acts 1871 — 2, p. 253. (6) And because the superior (superintendent) is not included in the inferior (agent:) 1 Blackstone’s Com., 88; 5 Comyn’s Digest, 328, 331. (e) And because, this being a proceeding in derogation of common right, every act making part of the system must be strictly construed: 31 Ga., 700, 710; Potter’s Dwarris, 146; 18 Ga., 340; 7 Ga., 514, 515; 1 Brock., 520; 5 McLeon, 185; 2 Wh., 203; 4 Wh., 241; 10 Peters, 524, 525-6-7; 2 Dallas, 316; 4 Hill’s N. Y., 76; 10 Modem, 283; 9 Bac. Abr., 250; 16 Ga., 111; 33 Ga., 612; 2 Brock., 448, 480, 484.</p> <p>2. It was not in the power of the Legislature to organize a committee with authority to state an account against the superintendent for proceeds of iron at private sale, without advertisement, (a) Old iron must b!e advertised and sold at public outcry, and if note is taken, it must be deposited with the treasurer: Code, 1008, 1009. (6) Therefore, Blodgett, in selling iron at private sale, without advertisement, acted without authority, and was a tort fectser; to ascertain these facts and pronounce the judgment of law upon the same is a judicial question, and not a mere ministerial duty: 34 Ill., 362, 363; 2 Brock., 476,480, 485, 486; 21 Wend., 218; 3 N. Y., 407; Cooly on Lim., 90, 91, 410. (c) But this legislative committee, not being of the judicial department, cannot perform any judicial function; it can only perform ministerial acts: Code, see. 5106.</p> <p>3. Again, if this legislative committee has power to adjust the superintendent’s accounts, and compel payment of the same, it must proceed according to the usual modes unless expressly authorized to resort to extraordinary remedies for reasons already given.</p> <p>II.</p> <p>1. Is the account on which this execution issued the kind of a claim for which it was designed to use the process of the Comptroller General ? It is not, for the following reasons: (a) It is not for “frauds of the road unaccounted for:” Code 907. (b) Nor is it for the “earnings of the road:” Code 1008-9. (c) Nor is it for moneys in the hands of a duly appointed financial agent of the road, or a designated depository of the funds of the road : 2 Brock, 480-484. (d) This process is designed to be used only against officers or ageuts of the kind above enumerated for balances ag>pearing in cash on the face of the boohs, that can be stated by a mere ministerial officer or clerk: 2 Brock., 484; 5 Ga., 193; Code, 907, 911.</p> <p>2. The law under which this execution pretends to proceed cannot be strictly pursued, and therefore the summary remedy cannot be used : Code 996 ; 9 Ga., 187.</p> <p>3. But the Code does not give a summary remedy against the sureties of the superintendent in any case. When an execution issues summarily against a tax collector it issues also against his sureties; but when it issues against a tax receiver the sureties are not included. The section providing for a summary remedy against the superintendent, auditor, treasurer, etc., of the Western and Atlantic Railroad does not attempt to subject the sureties of these officers to the same process: Code 907, 911, 991; 2 Brock, 481-2; 21 Ga., 55, 56.</p> <p>4. By the rule of strict construction we are forced to adopt interpretation of the statute which would restrict rather than extend the language used.</p> <p>5. But if this kind of remedy was ever authorized against the superintendent and his sureties, it cannot be employed now, because recent legislation was intended to substitute new modes of proceeding entirely: Acts 1871-2; pages 72, 77, 253, 256-7, 329. If this was not the legislative purpose, these recent Acts show that the Legislature considered the summary execution inapplicable to any but plain accounts.</p> <p>III.</p> <p>Have complainants the right to resist this summary remedy by illegality or bill ? They have for the following reasons :</p> <p>1. This is not a claim for taxes, nor in the nature of such a claim (nor for funds in the hands of a duly appointed financial agent.) • The defense is not denied by the Code, section 3618.</p> <p>2. Section 914 of the Code does not attempt to deny the right of judicial interference to any execution except those issued under sections 907 and 911. So that if section 991 or any other law really authorizes this summary remedy against the superintendent and his sureties, it does not undertake to deny the usual defense given by law in other cases against executions issuing or proceeding illegally: Code 914, 907, 911, 915, 991; 3 Mason, 331.</p> <p>3. But if the law did undertake to deny complainants a hearing in this case before a sale of their property, it would be unconstitutional, because: (a) “ No person shall be deprived of life, liberty or property, except by due process of law:” Code 5078; Cooly on Lim., 353; 4 Wh., 244; 1 Kent’s Com., 620-1, note; Sedgwick on C. and L. L., 537-8-9. (6) “The right of trial by jury, except where it isotherwise provided in the Constitution, shall remain inviolate :” Code 5207, 5174; 5 Ga., 193. (c) “Legislative Acts in violation of this Constitution, or the Constitution of the United States, are void, and the judiciary shall so declare them:” Code 5107; 27 Ga., 357-8 ; 42 Ga., 424, 428.</p> <p>4. Even in cases of distress for taxes the Courts always had the right to interfere, unless, (a) The proceeding was under the Act of 1804, or under the Code: Code 3618; 27 Ga., 357; 42 Ga., 428 ; (5) and for taxes exclusively; same authorities and Cooly on Lim., 487-89, 490 ; (c) and under a law authorizing the proceeding; 27 Ga., 357-8; 42 Ga., 428» Conclusions. The Court below should have granted the injunction if either of the following positions is true:</p> <p>1. If the legislative committee either were not or could not be authorized to adjudicate a claim like the one in question.</p> <p>2. Or if the statute did not originally authorize this summary remedy against the sureties of a superintendent, or if the law to that effect has been repealed.</p> <p>3. Or if the right of trial by jury either has not been, or could not be, denied by the Legislature in a case like this.</p> <p>N. J. Hammond, Attorney General; J. T. Glenn, Solicitor General, for defendants, argued as follows:</p> <p>Bonds of superintendent and treasurer of Western and Atlantic Railroad are deposited with Comptroller General: R. Code, secs. 973, 984.</p> <p>The Comptroller must “audit the accounts of all agents disbursing public money:” R. Code, sec. 94, p. 13; and “collect all evidences of debt due to the State from any other source than taxes:” R. Code, sec. 94, p. 9. His means of collection is a ft. fa.: Sec. 94, p. 6 and 8; sec. 911 (T. C.) and 991, (W. & A. R. R.)</p> <p>Distress was 'common law remedy for a “debt due to the Crown:” Black. Com., 14; Bacon’s Abridg.; Distress G., Comyn’s Dig.; Distress, (D. 7.) Recognized by sec. 4 of Act of 1823: Cobb’s N. Dig., 1025.</p> <p>The revenue of the State comes from the Western and Atlantic Railroad earnings: Code, sec. 994, p. 1; and from “ the use by individuals of any other property of the State:” Sec. 94, p. 5. Revenue defined : Yancey vs. The N. M. Manuf’g Co., 33 Ga. R., 624. Revenue from the Western and Atlantic Railroad put on footing with taxes: The State vs. Dixon, 38 Ga. R., 171.</p> <p>There can be no judicial interference with the collection of the public revenue. No replevin “ for goods seized for a debt to the king, without command of the king, or of the Barons of the Exchequer:” 7 Comyn’s Dig., Replevin D. It was prohibited where county fund (“public fund”) was in hands of Judge of Inferior Court: Tift et al. vs. Griffin, (Act 1796,) 5 Ga. R., 188, 189, 192; Eve vs. The State, 21 Ga. R., 50, 51, 58, 59; (Act of 1804,) fi. fa. by Comptroller vs. T. C. securities.</p> <p>Yancey vs. The N. M. Manuf’g Co., 33 Ga. R., 622, tax for indigent widows and orphans of soldiers: R. Code, secs. 991, 914, 3618; see, also, 27 Ga. R., 354; 40th, 133; 42d, 424, 428. Tax receiver’s liability : Sec. 907, 922, 913, 914, 915, 916, 943.</p> <p>The construction of section 991, etc., Revised Code, should be controlled by the Act of 1858, of which they are the codification : See Acts of 1858; R. Code, secs. 914, 3618.</p> <p>By that Act the construction is “liberal,” and so it has ever been to effect the object of collecting public revenue. In Doe, ex clem., Gledney et al. vs. Deavors, 11 Ga. R., 84-5, “distress,” in Act of 1804, construed to mean “execution.”</p> <p>In Eve vs. The State, 21 Georgia Reports, 50, see the construction. The 16th and 24th sections of the Act of 1804 authorized the Treasurer of the State to issue fi. fa. against tax collectors: Cobb’s Dig., 1052. The Comptroller General was held competent to issue this fi. fa. by considering the 3d section of the Act of 1823, (Cobb’s N. Dig., 1025,) as amending said section of Act of 1804. The 24th section of Act of 1804 authorized fi. fa. against collector, but was held to cover his securities also by construction: Eve vs. The State, 21 Ga. R., 50. The Act of 1804 forbade judicial interference with taxes levied under that Act. By construction, it has been applied to all subsequent tax Acts; summary remedy is a necessity : Tift et al. vs. Griffin, 5 Ga. R., 190, 191; Doe, ex dem., Gledney vs. Deavors, 8 Ga. R., 484; 11 Ga. R., 81-2; Yancey vs. The N. Manuf’g Co., 33 Ga. R., 623. Can the judiciary interfere with the collection of taxes levied since the Code, because the Code only forbids interference with “ taxes under the provisions of this Code:” Sec. 3618; see 27 Ga., 359; 11 Ga., R., 219.</p> <p>It is not unconstitutional to allow this summary remedy without a judgment. It was without jury before Constitution of 1798: Tift vs. Griffin, 5 Ga. R., 189-190. So it has ever been. The new Constitution, Art. 5, sec. 13, p. 1, says — “The right of trial by jury * * * shall remain inviolate:” 33 Ga., 622; 21 Ibid., 50.</p> <p>The officers of the Western and Atlantic Railroad being abolished by Act of 1871, it was the Comptroller’s duty to collect all dues to it.. See citations ante. His mode of collection is by fi. fa. In issuing that he acts ministerially only: 5 Ga. R., 193, Tift vs. Griffin; 11 Ga. R., 217; Bassett vs. the Governor, 29th, 157; Justices Inferior Court vs. Hunt et al.</p> <p>However, he finds out the fact that a public officer is a defaulter, the Comptroller must issue fi. fa. The resolutions appointing the committee on the Western and Atlantic Railroad make them, in lieu of the superintendent, the proper authority to audit accounts and “ compel settlements.” See Acts of 1871-’72, 257 and 329 Rev. Code, sec. 975, pts. 7, 11, 15.</p> <p>The State directly has no other remedy; she cannot wait slow process of suit. She may use all remedies; they are but cumulative: Doe ex dem., Gledney vs. Deavors, 8 Ga. R., 483.</p>

Injunction. Execution against public officer. Judicial interference. Constitutional law. Taxes. Before Judge Hopkins. Pulton County. At Chambers. October 14th, 1872. These cases were argued together. The allegations contained in the bills as originally filed will be found substantially set forth in the report of the two preceding cases.

<p>1. Where a verdict is plain and unmistakable in its terms and legal effect, it is error in the Court to permit counsel for the party against whom the verdict is rendered to interrogate the jury, on the reading of the verdict by the Clerk, as to what they intended by their verdict. The verdict in such a case not being ambiguous must speak for itself.</p> <p>2. Where a legatee files a bill against the executor of the will under which the complainant claims, to compel the payment of his legacy and the executor sets up the defense of plene administravit prceter, which is controverted by the complainant and the jury found the following verdict: “We the jury find the sum of $5,000, with legal interest thereon, from the 24th day of November, 1855, for the complainant, John Anderson, to be raised out of the estate of A. H. Anderson, deceased, in the hands of Moses P. Green, executor,” the complainant is entitled to a judgment de bonis testatoris et si non de bonis propriis.</p> <p>8. The decree of the Chancellor should conform to the verdict. Where a decree was rendered by the Chancellor not conforming to the verdict and pending a motion by defendant for a new trial, complainant excepted to the decree rendered and brought the case to this Court, where the bill of exceptions was dismissed, as prematurely sued out, and at the hearing of the motion for a new trial, complainant again moved to reform the decree, so as to make it accord with the verdict, which motion to reform the Chancellor again entertained and overruled, and also granted the new trial, to all of which complainant excepted within the thirty days required by the statute, he is not estopped from assigning error upon the ruling of the Chancellor refusing to reform the decree.</p> <p>4. Where the verdict of the jury is for a sum not more than the evidence shows the complainant is entitled to, a new trial will not be granted because they may have arrived at the result by an erroneous calculation — conceding that in this case the mode of calculation adopted by the jury was erroneous.</p> <p>5. It is not error in the Court to refuse to strike from a panel of twenty-four jurors a juror somewhat deaf, at the instance of defendant, who himself struck the juror in selecting a jury, and from which refusal no damage is shown to have resulted to the defendant.</p> <p>6. That there was a substitute for the juror selected by the parties, who answered to the name of his principal, is no ground for new trial, it not appearing that both substitute and principal were unknown to.defendant and his own counsel.</p> <p>7. We find no error in the verdict.</p> <p>8. A portion of an answer which is not responsive to the bill is not evidence for the defendant.</p> <p>9. Probate of a will in common form unattacked for seven years, is conclusive, upon all parties in interest, except minor heirs-at-law.</p> <p>10. A legatee is not barred from asserting his claim to a legacy against the executor where suit is brought within ten years after the legatee arrives at age.</p> <p>11. Where a will has been proved in common form for more than seven years, a legatee does not waive the estoppel thereby created by filing his bill against the executor for an account and discovery.</p> <p>12. Where the verdict is in no view for more than the complainant is entitled to recover, an immaterial charge as to.one item claimed in the bill is no ground for a new trial, even conceding such charge to be erroneous.</p> <p>12. An executor who, by the will of his testator (probated in 1853, and by which a solvent estate of more than $200,000 is committed to his hands), is directed to move a slave to a free State, to be there manumitted, and to invest for such manumitted slave, on his arrival at age, which occurs in 1862, $3,000, cannot, after refusing to execute the bequest of his testator until the close of the war, free himself from liability by showing that the estate has perished on his hands from the results of the war and other causes.</p> <p>lá. A provision in a will probated in 1853, directing a slave to be sent to a free State and there manumitted and provided for, was not in violation of the law of Georgia at that time.</p> <p>15. The law presumes a testator, in making his will, to have had a legal intention in view until the contrary is shown.</p> <p>16. If an executor buy land of his testator at his own sale, the purchase is voidable at the election of a legatee.</p> <p>17. Where an executor relies on the defense of jplene administravit, it is not error in the «Court to charge the jury “ if you find from the evidence there has been no full and complete administration of the assets of the estate, then this plea of defendants fails, and your verdict may also be against the assets in his hands to be administered, or in default of such assets, against his personal goods.”</p> <p>18. The executor in this case, having made himself personally liable by his neglect for the payment of complainant’s legacy, before any law existed authorizing him to invest in Confederate securities without an order of Court, the charge complained of in the 33d ground for new trial is immaterial.</p> <p>19. An executor, who has willfully or negligently mismanaged the property in his charge to the injury of a legatee, cannot avail himself of the provisions of the Relief Act of October 13th, 1870, when sued by such legatee.</p> <p>20. That the name of one of the persons who tried the case is not upon the jury list of the county, as made up in conformity to the Act of the General Assembly of February 15th, 1865, is an objection propter defectum, and comes too late after verdict, though the party objecting did not know the fact until after the trial. 40 Ga. 253.</p> <p>21. Jurors cannot be heard to impeach their verdict.</p>

Vacancy. Sheriff. Revocation'of appointment. Before Judge Clark. Sumter Superior Court. April Adjourned Term, 1872.

<p>Administrator’s sale. Title. Judgment lien. Before Judge Harrell. Miller Superior Court. April Term, 1872.</p> <p>James D. Carhart and William B. Carhart brought three actions of complaint for different tracts of land situated in the county of Miller, two against Mary Vann and the third against Mary Vann and Crawford Long. The eases were submitted to the Court upon the following agreed facts :</p> <p>“ That the property in controversy was .the property of Joshua S. Vann; that Vann died some time in 1866; that his estate was regularly, administered upon, aud the land in controversy regularly advertised and sold at administrator’s sale; that the parties defendant hold under title acquired at said administrator’s sale; that subsequent to said administrator’s sale a fieri facias, issuing from the fifth Circuit Court of the United States for the Southern District of Georgia vs. Joshua Vann, was levied upon the same land; that the said fieri facias was sued out before the death of Joshua Vann, and levied as stated above upon the land in controversy after its regular sale at administrator’s sale; that plaintiffs claim title under this last sale.</p> <p>The Court held that plaintiffs acquired no title under the sale by virtue of the levy under the aforesaid execution. To which decision plaintiffs excepted and now assign said ruling as error.</p>

<p>Scaling Ordinance of 1865. Before Judge Johnson. Talbot Superior Court. March Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Distress warrant. Landlord and tenant. Before Judge Harrell. Clay Superior Court. March Term, 1872.

Jurisdiction. Remedy at law. Injunction. Before Judge Clark. Sumter Superior Court. April Term, 1872.

Pleading. Practice. Judgment by Court. Before Judge Clark. Sumter Superior Court. April Term, 1871. James J. Scarborough brought complaint against Sarah Erambert. The case being called and no response made by the defendant or her counsel, judgment was rendered by the Court for $150, with interest and costs.

<p>1. Where a will, executed in July, 1850, the testator dying in 1859, conveys property in trust, the proceeds to be applied to the benefit of certain slaves, and provides that the survivor shall receive the whole benefit, the clause is inconsistent with the provisions of the fourth section of the Act of 1818, against manumission, and therefore void, (it.)</p> <p>2. The will must be construed under the law as it existed at the time of the death of the testator. (R.)</p>

Lost note. Personalty. Delivery. Rescission. Before Judge Andrews. Oglethorpe Superior Court. October Adjourned Term, 1871. Jesse Dalton, for the use of James P. Dorough, brought complaint against William O. Cheney, Enoch Cheney and Andrew J. Watson on a note alleged to be lost, proceedings for the establishment of which were then pending.

Equity. Bill to marshal assets. Lien. Parol evidence. Before Judge Parrott. Gordon Superior Court. February Term, 1872.

<p>1. A sale of the land by the assignee of a bankrupt does not divest the lien of the State upon the land for taxes due on it, even though sold by the assignee, free of encumbrance.</p> <p>2. An execution issued by the tax collector for the unpaijl taxes against the land, which has not been returned by any one, describing it as the property of the persons who last returned it, is valid against the land, although such persons may no longer be the owners of it, and may not have owned it at the time the law fixes the liability for taxes, to-wit: the first day of April.</p>

<p>A plaintiff is a competent witness to prove the payment of taxes on the debt sued on, though the other party to the contract may be dead. (R.)</p>

Distress warrant. Feme covert. Title. Specifics. New trial. Before Judge Harrell. Early county. At Chambers. March 22d, 1872.

Railroads. Contractors. Liability to sub-contractors. Running of cars. Before Judge Cole. Bibb Superior Court. October Term, 1871. Lewis Grant and Patrick O’Hara brought sepai’ate actions on the case against the Central Railroad aud Banking Company for injuries sustained. The two oases were heard together in the Superior and Supreme Courts. The defendant pleaded not guilty.

<p>Principal and surety. Usury. Set-off. Indulgence. Accommodation drawer. Before. Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.</p> <p>I. C. Plant & Son brought complaint against R. F' Woolfolk on the following draft:</p> <p>“$1,841 71. Macon, Ga, November 21st, 1868.</p> <p>“ Marks and numbers,” Without grace, fifteen days after J. J. B. 4 to 6 date, pay to the order of I. C. Plant</p> <p>C. W. 2 to 3 & Son, eighteen hundred and forty-</p> <p>J. & H. 21 to 24 one dollars and seventy-one cents,</p> <p>J. A. E. 23 to 27 for value received, being an advance</p> <p>W.S.K. 16 to 20 on twenty bags of cotton, marked and numbered as per margin, which are conveyed to you, which cotton sell before the maturity of this draft and apply the proceeds specially to the payment thereof; if not sufficient, the balance will be paid by you, and charge to account of Yours, respectfully,</p> <p>(Signed) R. F. WOOLFOLK.</p> <p>“To Messrs. Woolfolk, Walker & Co., Macon, Ga.”</p> <p>Written across face of draft, “Woolfolk, Walker & Co.”</p> <p>Credit. — Received of J. H. Woolfolk five hundred dollars on this draft in part payment, and the receipt attached hereto marked W. S. K. is to be considered as returned to him to the extent of the above money so paid. This February 16th, 1869.</p> <p>(Signed) Lanier. & Anderson, Attorneys, etc.</p> <p>The defendant pleaded, 1st, The general issue; 2d, That his signature was procured to said draft through the misrepresentation of I. C. Plant, one of the plaintiffs ; 3d, That the firm of Woolfolk, Walker & Company has paid to plaintiffs large amounts of usurious interest, that defendant is only a surely, that said firm is insolvent, that therefore said usurious interest constitutes an equitable set-off to said claim ; 4th, That plaintiffs, after said draft became due, for a valuable consideration, extended the time of payment to Messrs. Woolfolk, Walker & Company, thereby releasing defendant.</p> <p>The jury returned a verdict for the plaintiffs for the sum of $1,353 27, with interest from February 2d, 1869.</p> <p>The defendant moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the Court erred in charging the jury that “the instrument sued on was a bill of exchange drawn by R. F. Woolfolk upon Woolfolk, Walker & Company, and that if the acceptors failed to pay it when due, the drawer was- bound to do so.”</p> <p>2d. “That if usurious interest had been paid by said Wool-folk, Walker & Company to the plaintiffs upon other transactions between them, R. F. Woolfolk could not set it up as a defense to this action, or plead it as a set-off to the draft sued on, though it was proved that Woolfolk, Walker & Company were insolvent.”</p> <p>3d. Because the Court erred in refusing to charge, as requested by defendant, that “if plaintiffs had given to Wool-folk, Walker & Company time upon the draft sued on without the consent of R. F. Woolfolk, who was only an accommodation drawer, he was relieved from liability thereby,” and in giving such charge with the qualification, “ that the time given must be a specified time, during which plaintiffs could not sue.”</p> <p>4th. Because the Court erred in refusing to charge the jury, as requested by defendant, that “ if plaintiffs sued out a possessory warrant for the cotton, under which one of the firm of Woolfolk, Walker & Company was arrested, and such warrant was dismissed without the consent of R. F. Woolfolk, he being an accommodation drawer, he was relieved from liability thereby,” and in giving such charge with the qualification, “that to relieve such accommodation drawer, it must be made to appear that the cotton had been seized under the warrant before its dismissal.”</p> <p>It was admitted that Woolfolk, Walker & Company had been declared bankrupts.</p>

Landlord and tenant. Distress warrant. Practice. Before Judge Andrews. Hancock Superior Court. April Term, 1872.

Relief Act of 1870. Tax affidavit. Partnership. Before Judge Harrell. Muscogee Superior Court. May Term, 1871. C. Lopez filed his bill against Thomas Brassill for a settlement of the partnership business of the firm of Brassill & Lopez. Pending the suit, the defendant died, and Felix McArdle, his administrator, was made a party.

New trial. Before Judge Johnson. Talbot Superior Court. March Term, 1872. The two cases above stated were argued together. All the facts necessary to an understanding of the cases are set forth in the decision of the Court. Blandford & Crawford ; J. M. Matthews, for plaintiffs in error. E. H. Worrill ; B. Hill, for defendant.

<p>1. Where goods are shipped by railway, and arrive at their destination within the usual time required for transportation, and are there deposited by the company in a place of safety and held by them ready to be delivered on demand, their liability as common carriers ceases, (unless the custom of trade is shown to be otherwise as to delivery,) and that of warehousemen commences.</p> <p>2. No notice to the consignee, where the goods arrive on time, is necessary to reduce the liability of the company from that of common carriers to that of warehousemen.</p> <p>3. If the goods arrive out of time, and after they have been demanded by the consignee, it might require notice of their arrival to the consignee, and a reasonable time after, to relieve the company from the extraordinary liability imposed by law upon a common carrier.</p>

New trial. Continuance. Before Judge Gibson. Eichmond Superior Court. January Term, 1872. George A. Weigle instituted proceedings in the Superior Court of Bichmond county to establish a note alleged to have been made by David Cohen, as follows, to-wit: “$150.

Foreclosure of mortgage. Homestead. Garnishment. Before Judge Twiggs. Jefferson Superior Court. November Term, 1871. Susan Cason instituted proceedings against William PI. Watkins to foreclose a mortgage given to secure the payment of four promissory notes, dated January 1st, 1870, due twelve months after date, and each for the sum of $>100.

<p>Railroads. Master and servant. Before Judge Cole. Bibb Superior Court. October Term, 1871.</p> <p>For the facts of this case, see the decision.</p>

Foreclosure of mortgage. Reformation. Attestation. Before Judge Johnson. Talbot Superior Court. March Term, 1872.

<p>Relief Act of 1870. Tax affidavit. Minor. Before Judge Strozier. Dougherty Superior Court. January Term, 1872.</p> <p>C. P. Heartwell, as guardian of Dollie Tarver, a minor, brought complaint against Eubanks Tompkins, James IT. Hill and Benjamin R. Smith, on a note made January 1st, 1860, payable twelve months after date “to H. A. Tarver, exeGutor of C. C. Tarver, executor or bearer,” for the sum of $1,049.</p> <p>Plaintiff’ introduced the following evidence, to-wit:</p> <p>1st. The note sued on.</p> <p>2d. C. P. Heartwell, who testified as follows, to-wit: That the note sued on is the property of Dollie Tarver, a minor; that in 1863, he, in right of his wife, had a settlement with H. A. Tarver, and received from him one-third of the estate of Paul Tarver, deceased, to which she was entitled, under his will; that the remaining two-thirds of the estate, including the note sued on, fell to the share of Dollie Tarver; that there are some outstanding debts against said estate in execution.</p> <p>3d. An award made June 23d, 1870, on a case between H, A. Tarver, executor, and C. P. Heartwell, as guardian for Dollie Tarver, a minor, showing that the note sued on, and all other notes of said estate in the hands of said executor, were awarded to said Dollie Tarver, and fully ratifying the settlement made in 1863.</p> <p>Plaintiff closed. Defendants moved to dismiss the case, upon the ground that there had been no proof of the payment of taxes on the note sued on. The motion was sustained by the Court and the case dismissed.</p> <p>Plaintiff excepted and assigns said ruling as error.</p>

Costs in Supreme Court. Before Judge Parrott. Floyd Superior Court. January Term, 1872. John D. Smith moved to enter up a judgment against P. L. Turnley, as administrator, for the costs in a case carried to the Supreme Court of Georgia, in which said Smith was plaintiff in error, and said Turnley as administrator, defendant in error. The judgment of the Supreme Court, which was made the judgment of the Superior Court, was as follows : “ John I).

Criminal law. Assault and battery. New trial. Newly discovered evidence. Before Judge Cole. Houston Superior Court. December Term, 1871. S. D. Arnold was placed upon trial on an indictment for assault and battery. The defendant pleaded not guilty.

<p>Judicial interference. Tax. Notice. Injunction. Before Judge Hopkins. Fulton county. At Chambers. May 25th, 1872.</p> <p>David A. Beatie filed his bill against James O. Harris, sheriff, and A. M. Perkerson and W. D. Brown, deputy sheriffs, praying that the sale of certain property levied on under a tax execution in the hands of the defendant Brown, be enjoined. The bill and affidavits read on the hearing of the application for injunction made the following case:</p> <p>Hannibal I. Kimball absconded from the State of Georgia, in the fall of 1871, owing to complainant $3,718 75, and has since remained absent from said State in a hopelessly insolvent condition. At the time Kimball left he owned a large amount of property in the city of Atlanta, including the hotel known as the “H. I. Kimball House.” On November 13th, 1871, complainant sued out an attachment upon the debt due to him, which was levied upon certain personal property belonging to said Kimball. Kimball had not paid his State and county taxes for the year 1871, amounting to $6,000 or $7,000, and being chiefly the taxes due upon the IT. I. Kim-ball House, which was assessed as of the value of $650,000. In January, 1872, the tax collector issued an execution which was immediately placed in the hands of deputy sheriff W. D. Brown, with instructions to collect the taxes from the first money received from the sale of Kimball’s property. On the first Tuesday in February thereafter, A. M. Perkerson, another deputy sheriff, sold the H. I. Kimball House under what were claimed to be mechanics’ liens of Healey, Berry & Co. et al., to Dr. Joseph Thompson, B. H. Hill and George Adair, for the sum of $15,010. Brown notified Perkerson before and at the sale, that the said execution was in his hands for collection, and that the money when received must first be applied to its satisfaction. Before the money was paid out Mr. Hill went to Perkerson and subsequently to the tax collector, and proposed that if Perkerson would pay out the money in discharge of the mechanics’ liens first, that he would point out other property upon which no creditor had a lien, from the sale of which the taxes could be made. The tax collector refused to make any such arrangement, as he stated he expected the taxes to be paid from the money already in hand, but Mr. Hill, by indemnifying Perkerson, or by some other means, induced him to appropriate the money to the satisfaction of the mechanics’ liens, and at once caused the tax execution to be levied upon the same property upon which complainant’s attachment had been previously levied. If the proceeds of this property is applied to the satisfaction of the tax execution, complainant will lose his debt. The bill prayed that the sale under said levy be enjoined, and that said tax execution be entered satisfied.</p> <p>The Chancellor refused the injunction and complainant excepted, and assigns said ruling as error.</p>

<p>Where an affidavit of taxes paid, as is required by the Act of October 13, 1870, was filed within the time prescribed, but the affidavit failed to say that “ the plaintiff expected to prove the same on the trial:” Held, That the affidavit is amendable at the trial.</p>

Contract with Inferior Court. Minutes. Pleading. Before Judge Harvey. Bartow Superior Court. March Term, 1872.

<p>Sale. Warranty. Before Judge Johnson. Muscogee Superior Court. November Term, 1871.</p> <p>For the facts of this case, see the decision.</p>

Garnishment. Wages. Before Judge Gould. City Court of Augusta. February Term, 1872. Butler, McCarty and Company obtained judgment against William J. Freeman and Henry N. Freeman, partners, under the firm name of Freeman Brothers, for $997 37, principal, besides interest, at the August Term, 1871, of the City Courtof Augusta. Garnishment process was subsequently sued out on said judgment, and John M. Clark & Company were served as garnishees on December 18th, 1871.

Special verdict. Practice. New trial. Before Judge Greene. Newton Superior Court. March Term, 1871. Eugenia A. Sanders and others, legatees under the will of Charles H. Sanders, deceased, filed their bill for account and settlement against Stephen Shell and Nathan Turner, executors of said will. Charles H. Sanders died in August, 1851, leaving an estate of the value of about $100,000.

Factor’s lien. Husband and wife. Separate estate. Before Judge Harrell. Randolph county. At Chambers. February 9 th, 1872. Edward McDonald levied an execution, based on a factor’s lien, on two bales of cotton as the property of Sidney Dubose. Sarah Dubose, by her next friend, filed a claim to said cotton, which was tried before the Justice Court for the Seven Hundred and Eighteenth District, Georgia Militia, and said property found subject.

Principal and security. Novation. Partnership. Before Judge Harrell. Terrell Superior Court. November Adjourned Term, 1871. George A. Guise brought complaint on the following note, alleged to be lost: “ $200. Sixty days after date, we or either of us promise to pay John A. Hiers or bearer two* hundred dollars, for value received, with interest at two and a half per cent, per month.

<p>A purchasejiy a Receiver, as agent of another, of property sold at his own sale, made under order of Court, is voidable at the election of a party having a beneficial interest in the property, and when such election is promptly made, the sale will be set aside.</p>

<p>An intruder’s warrant does not lie against one who, in good faith, claims the right to the possession of the premises he is sought to be ejected from, and if the defendant in such a warrant makes the counter-affidavit required by the Code, and it appear on the trial that he does, in good faith, claim the right to the possession, the jury ought to find for the defendant.</p>

Estoppel. Legacy. Ademption. Before Judge Johnson. Marion Superior Court. April Term, 1872. Jackson Gill, as administrator de bonis non, with the will annexed, of James Perryman, deceased, brought ejectment against E. H. Worrill, as administrator upon the estate of Anthony G. Perryman, deceased, et al., for a certain tract of landvsituated in the county of Marion. Thé decision of the Supreme Court will be fully understood from the refusal to charge and the charge as given.

<p>Jurisdiction. Award. Practice. Before Judge Gould. City Court of Augusta. May Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Protest. Rank. Days of grace. Bank check. Presumption. Before Logan E. Bleckley, Esq., an Attorney, presiding by consent. Fulton Superior Court. October Term, 1871.

Marriage settlement. Separate estate. Remainder. Before Judge Green. Butts county. At Chambers. February 16th, 1872.

Caveat to will. Admission of executor. Undue influence. False representations. Evidence. Impeachment of witness. Before Judge Johnson. Talbot Superior Court. March Term, 1872.

Set-off. Partnership. Mutuality. Before Judge Clark. Sumter Superior Court. April Term, 1872. James P. West filed his bill against Judson A. Kendrick, containing, substantially, the following allegations: That at the October Term, 1871, of the Superior Court of Sumter county, there was pending against complainant a suit in favor of defendant on a note for about $300; that complainant retained Messrs.

<p>1. The records of the Court of Ordinary are amendable so as to make them speak the truth, upon the proper steps being taken for that purpose. The fact that the Court had no jurisdiction to grant the order, ■which it is proposed to amend, cannot affect the motion to amend. If the jurisdiction did not exist, parties whose interests may be affected by the judgment can take advantage of the want of jurisdiction as well after as before the amendment, whenever and wherever it interferes with their rights.</p> <p>2. Upon a motion to amend the records of the Court of Ordinary, the only issue before the Court, is whether the amendment proposed will make the record speak the truth. -Whether the original order was legally passed or not is irrelevant and impertinent to the issue. Nor can such order, if illegal, be set aside in this proceeding. The case is not altered where the motion is to rescind an order allowing the amendment.</p> <p>3. An amendment of its records by the Court of Ordinary, upon an ex parte application, cannot affect the rights of any persons not parties to the proceedings. But if such persons afterwards come into Court and move to rescind the order of amendment, and upon hearing all the parties, it appears that the amendment was a proper one to be made, the order granting it should be permitted to stand.</p>

<p>Where a plea had been filed to the plaintiffs’ action setting up a legal defense thez’eto, and a tz’ial was had in the absence of one of defezzdants’ counsel who was alone acquainted with all the facts of the defense, which resulted in a verdict for the plaintiffs ; on its being made to appear that said counsel had leave of absence, a new trial should have been granted. (R.)</p>

Equitable defense at law. Parties. Before Judge Cole. Bibb Superior Court. November Term, 1871. William W. Chapman, as guardian of Tallulah B. Chapman, brought complaint against the Southwestern Railroad Company for the sum of $767, besides interest, dividends upon stock owned by his said ward in said company.

Attorney and client. Leave of absence. Judgment by default. Before Judge Harrell. Terrell Superior Court. November Adjourned Term, 1871. John B. Perry brought complaint against B. F. Todd and J. H. Pickett, principals, and Charles G. Farmer, security, to the May Term, 1871, of Terrell Superior Court, on a promissory note dated June 15th, 1870, due the first of November next thereafter, for the sum of $576 78.

Foreclosure of mortgage. Partnership. Survivor. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.

Secondary evidence. Disclaimer. Award. Before Judge Clark. Schley Superior Court. April Term, 1872. Stephen A. Sellars, as administrator de bonis non upon the estate of Richard Sellars, deceased, brought ejectment against Sterling J. McRory for lot of land number twenty-six, in the thirtieth district of Schley county. At the April Term* 1871, of Schley Superior Court the defendant filed a disclaimer, which was subsequently withdrawn.

Statute of limitations. Fraud. Before Judge Green. Henry Superior Court. April Term, 1872. Helen West, the widow of James West, deceased, Mary Eowan and her husband, Matilda West, ......... West, and Elizabeth West, his daughters, filed their bill against John Eodahan, George T. Connell, Allen H. Turner, James W. Vandergriff, Charles B. Smith, and Lewis M. Tye, containing, substantially, the following averments: That Elizabeth West, .........

Equity. Injunction. Guardian and ward. Before Judge Cole. Bibb county. At Chambers. September 11th, 1872.

<p>1. Where a holder of bank bills, issued before June, 1865, gives them in regularly at what he swears, on the trial, he was willing to sell them at, and pays the taxes due on that valuation, there being no contradictory evidence of the value of the bills, it is a sufficient compliance with the Relief Act of 1870.</p> <p>2. A State bank, not specially authorized by its charter to do so, could not, in 1862, issue any of its bills, intended to be used as money, redeemable otherwise than with gold or silver coin. Where it did issue bills at that date, in the usual form, it is inadmissible in a suit on them by a bona fide holder, who did not receive them from the bank, but purchased them from others, to prove that they were intended by the bank to be payable in Confederate currency, and were so understood by the community in which the bank was located. The Ordinance of 1865 does not apply to such contracts.</p>

<p>This case was returned to the July Term, 1871, of the Supreme Court. When called, the death of Samuel A. Greer was suggested, and the following order passed.</p>

<p>Before Judge Strozier. Dougherty Superior Court. December Term, 1871.</p>

Refusal of injunction. Attorney’s fees. Leave of absence. Before Judge Gibson. Burke county. At Chambers. July 15th, 1872. Francis A. Jones filed his bill against Groover, Stubbs & Company and John L. Smith, sheriff of Burke county, making the following case: On April 19th, 1870, Jones gave to Groover, Stubbs & Company his note for $7,500, secured by mortgage upon certain real estate in the counties of Burke and Emanuel, due November 20th next thereafter.

Master and servant. Before Judge Clark. Webster Superior Court. September Term, 1871. All the facts necessary to a clear understanding of this case are set forth in the decision.

<p>If land be sold, and fcbe purchaser indorse tbe note of a third person to the vendor in payment, and transfer a mortgage to him, securing said note, there is no such novation of the contract, no change in the relations of the parties to each other as to deprive the vendor of his right to enforce the payment of the purchase money by levy on the land, (which has been set apart by the purchaser as a homestead) under execution against the indorser and maker of the note. The land was the consideration given for the indorsement of the note and mortgage. Until they are paid the vendor’s claim for the purchase money is superior to the homestead, and the land may be subjected to its payment.</p>

Lien of landlord. Before Judge Harrell. Early Superior Court. April Term, 1872. On the 28th day of November, 1871, Stephen Odom executed a mortgage on all his crop of corn and cotton grown on the plantation of A. J. Mercier, in the county of Early, to secure the payment of a promissory note of same date, payable one day after date, for $270.

Steamboat lien. Affidavit. Demand. Amendment. Before Judge Schley. Chatham Superior Court. January Term, 1872. A rule nisi was issued by the Superior Court of Chatham county calling on the sheriff to show cause why certain exetious which had been lodged in his hands by Joseph F. Torrent and others had not been satisfied out of the funds arising from the sale of the steamboat Governor Worth.

Statute of limitations. Husband and wife. Separate estate. Adverse possession. Before Judge Clark. Lee Superior Court, April Term, 1872. Plaintiff in error brought ejectment on the several demisesof Elizabeth Warmick, Joseph R. Shipp, and of Joseph R. Shipp in right of his wife, against defendants in error, for lot of land number two hundred and twenty-nine, in the first district of said county, containing two hundred and two and a half acres, more or less.

<p>Where an executor is sued as such, in the county of his residence, and, pending the suit, dies, and administration, de bonis non, is granted upon the estate of his testator, who lived and died in a different county, to a citizen of the county of the testator’s residence, the suit against the executor does not abate, and a scire facias issued to made the administrator de bonis non, a party to the suit, should not have been dismissed under the facts stated.</p>

Interrogatories. Before Judge Hopkins. Fulton Superior Court. October Term, 1871.

<p>Judgment Service. Account. Before Judge Clark. ' Sumter Superior Court. October Adjourned Term, 1870.</p> <p>For the facts of this case, see the decision of the Court.</p>

Injunction. Release of lien. Multiplicity of suits. Cloud on title. Before Judge Strozier. At Chambers. June 8th, 1872.

<p>1. The written notice required by section 3987 of the Code, to be given by the plaintiff in certiorari to the opposite party in interest, neqd not appear of record, if there is a waiver in writing of the notice.</p> <p>2. Under section 3956 of the Code, a possessory warrant lies at the instance of the party injured, in two classes of cases : First, where any personal chattel has been taken, enticed or carried away, either by fraud, violence, seduction or other means from the possession of the party complaining. Secondly, where such personal chattel, having recently been in the quiet, peaceable and legally acquired possession of the complaining party, has disappeared without his consent. In the first class of cases no lapse of time will bar the plaintiff’s right to recover, if he makes out his case in other respects, where the defendant fails to show that such property has been in his quiet and peaceable possession for four years next immediately preceding the issuing of the warrant, or, perhaps, in the quiet and peaceable possession for that length of time, of those under whom he claims.</p>

Injunction. Railroads. Stock-gaps. Before Judge Johnson-. Muscogee county. At Chambers. June 8th, 1872.

Steamboat lien. Bona fide purchaser. Before Judge Gibson. Richmond Superior Court. January Term, 1872. Hillary B. Frazer instituted proceedings to enforce a lien on the steamboat Wave for personal services rendered on said boat while in the service of the People’s Daily Line, a corporation created under the laws of the State of Georgia. The lien was foreclosed and the execution levied upon said boat, which was claimed by George T. Jackson.

<p>Criminal law. Employing servants of another. Written accusation. Before Judge Stjrozier. Dougherty Superior Court. December Term, 1871.</p> <p>Plaintiff in error was put upon trial in the District Court for Dougherty county upon the following written accusation:</p> <p>“GEORGIA — Dougherty county.</p> <p>“Peter McLaren, in the name and behalf of the citizens of Georgia, charges and accuses E. L. Hudson, of the county and State aforesaid, with the offense of misdemeanor. For the said E. L. Hudson, on the 17th day of June, 1871, in the county aforesaid, did, then and there, unlawfully employ by an agent, Watkins Lee, Marshall Jackson, Morgan Hall, they, then and there, being servants and employees of the said estate of Davis Pace, said E. L. Hudson, then and there, knowing that said servants were employed on the estate of Davis Pace, and that their time with the said estate had not expired, contrary to the laws of said State, the good order, peace and dignity thereof.</p> <p>“Dougherty District Court, July Term, 1871.</p> <p>(Signed) “T. R. Lyon, District Attorney.”</p> <p>Plaintiff in error moved to quash said written accusation upon the following grounds, to-wit:</p> <p>1st. Because the name of the agent through which it was alleged he employed said servants was not set forth.</p> <p>2d. Because the executor’s or trustee’s name, who had charge of the Davis Pace estate, or the name of the party who had the servants employed was not set forth. ></p> <p>The motion was overruled. The jury, under charge of the</p> <p>Court, returned a verdict of “ guilty,” recommending plaintiff in error to mercy. Plaintiff in error carried the case by writ of certiorari, upon the above and other rulings of the District Court, to the Superior Court of Dougherty county. The Superior Court sustained the rulings of the District Court, and affirmed its judgment, whereupon plaintiff in error excepted, and assigns said decision as error.</p>

Injunction. Discretion. Affidavit. Husband and wife. Before Judge Sessions. Pierce county. At Chambers. May 19th, 1872.

Claim. Homestead. Dower. Before Judge Habeell. Stewart Superior Court. April Term, 1872. This case was tried upon the following agreed state of facts: “That Samuel Adams, at the timeof his death, about 1865, was the owner of the land now levied on; that Holland A. Adams was his widow, and administratrix, and Charles B. Adams, his administrator.

Forcible entry. Force. Evidence. Before Judge Harrell. Randolph Superior Court. May Term, 1872. Alexander B. Hendry sued out against John C. Curry the process of “ forcible entry,” for lot of land number six, in the sixth district of the county of Randolph.

<p>Quo warranto. Vacancy. Election of officers. Clerk of Superior Court ex officio Ordinary. Before Judge Clark. Sumter Superior Court. May Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>Criminal law. Circumstantial evidence. Newly discovered evidence. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1872.</p> <p>Thornton Carter was placed on trial for the offense of burglary in the night time, in breaking and entering the store room of James H. Blount, with the intent to commit a larceny. The defendant pleaded not guilty. The following evidence was introduced :</p> <p>EOR THE STATE.</p> <p>Maria Lucas, sworn : Witness identifies prisoner; went to see him on Thursday, at his house, and saw some rice and peas on the table; defendant appeared to object to witness’ entering the house; also, saw a jar of preserves, which the inmates of the house moved, together with other things, as witness entered; some of the peas were not shelled; they were speckled peas; saw some flour bread on the table; the house had two rooms; saw some bags in the back room, which defendant’s wife was ripping up; the bags appeared to be dirty with grease; the women went into the other room and whispered together when witness entered the house; defendant said there was not much fire in the room, but witness found, on entering, that there was a good fire; defendant stated that he had seen witness’ brother, who had informed him that witness had left Mr. Blount’s, or he would have been up to see witness; the store is in the basement of the house; the windows open like a door, with four horizontal pieces of plank fastened on each side, and four augur holes in each; witness went into the room on the next morning at about half past five o’clock, before the break of day; found meat, meal, rice and peas; witness lives at the house; there were speckled peas in the store room in the shell; the peas were missing; a jar of lard was gone, and also a jar of preserves; saw a jar at defendant’s house closely resembling the jar lost from the store room; it had the same name on it; witness recognized it from the rag that was on it; there were sacks in the store room, and some off of the meat box were missing; the sacks resembled those at defendant’s; defendant had been a driver at Mr. Blount’s; the corn was kept in the store room; defendant frequented the room to get corn for the horses, but was not living there at the time; witness saw defendant that day at the dirt bridge, about fifty yards from the house; the property stolen belonged to Mr. Blount; the room was broken open on Wednesday; the cloth on the preserve jar was white, tied with a black string and dirty with dust; the bags were fine corn sacks, such as corn is ordinarily shipped in; the two rooms in defendant’s ho'use adjoined; witness was at defendant’s house about one half hour, a little before four o’clock ; defendant was living at Collinsville; defendant said that he thought witness left Mr. Blount’s when Sam Perry left; Sam had left some two weeks previously; defendant had been to see witness after Sam left.</p> <p>William Taylor, sworn: Witness recollects defendant’s being placed in the guard house; witness asked him about some meat, rice and peas which were in his house on Thursday; may have asked him about flour; defendant said that he did not have them, only some flour that he had bought some time before the breaking open of Mr. Blount’s room; this occurred on the morning after defendant- was placed in the guard house; Mr. Blount resided in Bibb county; Collinsville is in Bibb county.</p> <p>Mr. Blount, sworn : Witness’ store room was broken open on Wednesday night before the last; witness had Carter arrested the next night; witness visited the guard house the next day with Lieutenant Taylor; Taylor had a conversation with defendant; defendant had been in the employment of witness, but had left during the Christmas holidays; witness had peas in the hall in his house; the articles mentioned in the indictment were gone; the breaking was done, witness thinks, by some one acquainted with the premises; the property stolen belonged to witness.</p> <p>FOR THE DEFENDANT.</p> <p>Anna Dawson, sworn: Witness lives in Collinsville, on her own lot, with her mother; Mary Lucas came to witness’ house on Thursday a week ago; she was talking to witness’ brother; witness did not hear the conversation; went, on Wednesday, with her brother, the defendant, to the Blind Asylum, at about half past five o’clock, p. m.; thence, down town to carry clothes; thence to church, and reached home by ten o’clock; Mrs. Sarah Lowe and Mrs. Harris were present when the defendant and witness arrived at home; defendant went at once to bed; there are four rooms in witness’ house; defendant sleeps in the back room, and has to pass through witness’ room to get out of the front door; saw defendant the next morning, when witness got up; witness got up first; there was an outside door in defendant’s room that led into the back yard; there was nothing on the table but witness’ ironing- things, some glasses, covered with a towel and some shirts; there was nothing eatable on the table; on "Wednesday night there was no one present except the family; defendant had been sick, but was well enough to go to church with witness; it was the first time that he had been out for three weeks; defendant had a room which he occupied with his wife; the house is weather-boarded; defendant did not leave home on Wednesday night; cannot state if any one was there while witness was away; defendant was over to Mr. Riley’s on Wednesday evening.</p> <p>Alice Smith, sworn: Defendant lives in one of the back rooms of the same house with witness; was at home on Wednesday night; no one but the family were there; defendant was at church and came home about ten o’clock; does not know that defendant went to church that night beyond what he stated.</p> <p>STATEMENT OP DEPENDANT.</p> <p>“I was sick in bed part of the week, waited on by the Ring Dove Society; Tuesday night my brother came to see me and made a fire for me; on Wednesday I felt better and walked about; Wednesday evenjng, about 5$ o’clock, I went with my sister to my mother’s at the Blind Asylum. Sister went down to Mr. Winship’s store to carry Mr. O’Neal’s shirts; when she came back to mother’s I had a fire made in mother’s room ; that was about 8 o’clock; after supper we went to church; it was very cold and, being unwell, I proposed to go home; when near Polhill’s schoolhouse I met Jane Richards and Fanny Jewett, and they said to me, “where are you going?” I replied “home,” and they induced me to go to church with them. After church my sister, Georgia Tompkins and myself started home together ; I met Alick Day in front of Mr. Wheeler’s gate and we proceeded home together.”</p> <p>The jury returned a verdict of guilty, and defendant moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because since the said trial defendant has discovered that Maria Lucas, the principal material witness for the State, made to various parties different statements as to the offense charged in the indictment, at one time alleging that she absolutely knew nothing of the facts of the case or the cause of defendant's arrest, and at another time alleging that she knew defendant committed the offense for the reason that she had tracked defendant to the house where the offense had been committed.</p> <p>2d. Because since said trial defendant has discovered that said Maria Lucas, witness as aforesaid, is a woman of desperately bad character, and that her reputation for want of veracity and truthfulness is so great and apparent that she is not worthy of credence in any Court of justice.</p> <p>3d. Because siuce said trial defendant has discovered that certain articles which said Maria Lucas has testified as having seen in the house in which defendant was at the time said witness came there, were sent by Harriet Thomas, the owner of the house, from the Blind Asylum in the city of Macon, and could have been identified by said Harriet Thomas.</p> <p>4th. Because at the time of the trial defendant, being wholly illiterate and knowing nothing of the law or the rules of evidence, he had not brought to the knowledge of counsel the fact that the room in which Maria Lucas had testified to seeing the articles which she recognized as the property of J. H. Blount, was not the place of abode of defendant, but the abode of Anna Dawson and family; that defendant lived in another part of the house, which contained four rooms occupied by different persons.</p> <p>5th. Because said verdict is contrary to the evidence and the law.</p> <p>In support of the grounds based upon newly-discovered evidence, affidavits of the witnesses, defendant and of his counsel, all in proper form, sustaining the grounds as set forth, wrere annexed.</p> <p>The motion was overruled by the Court, and plaintiff in error excepted aud assigns said ruling as error.</p>

Evidence. Damages. New trial. Before Judge Harrell. Early Superior Court. April Term, 1872. Georgia A. Mercier brought complaint against Augustus J. Mercier for one sewing machine, of the value of $150, aud of the annual value of $25.

Relief law of 1870. Tax affidavit. Practice. Before Judge Hopkins. Clayton Superior Court. September Term, 1871.

Criminal law. Verdict. Practice. Before Judge Hopkins. Pulton Superior Court. April Term, 1872. Por the facts of this case, see the decision. Farrow & Thomas, for plaintiff in error. 1st. The first verdict, though a special and partial verdict, was nevertheless valid and binding.

<p>1. A settlement between two partners, whereby one buys tbe other’s interest in the partnership property, and gives his note for the amount found to be due the retiring partner, does not estop the maker of the note from pleading and showing, when sued on the note, that it was given for too much, by mistake, arising out of an erroneous charge against the maker of the note in the settlement. The fact that the maker received the note after discovery of the mistake by him, and while it was a matter of dispute, still insisting that it existed, does not vary the rule.</p> <p>2. There being evidence in this case of the existence of the mistake, and the jury having so found, we will not disturb the verdict.</p>

<p>Attachment. Insurance. Open policy. Before Richard E. Lyon, Esq., Attorney at Law, presiding by consent. Dougherty Superior Court. June Term, 1871.</p> <p>Williajn T. Sutherlin sued out an attachment against the Underwriters’ Agency, composed of the Germania, Hanover, Niagara and Republic Eire Insurance Companies, of New York, for the sum of |742 43, besides interest and expenses. At the appearance term a declaration in attachment was filed, containing, substantially, the following allegations; that petitioner brings his suit upon the following written contract, to-wit:</p> <p>“No. 29. Underwriters’ Agency. $4,000.</p> <p>“Germania, Hanover, Niagara and Republic Eire Insurance Companies, of the city of New York.</p> <p>“'Albany, Ga., January 20th, 1866. “This is to certify that William T. Sutherlin is insured for account of whom it may concern, under and subject to the conditions of policy number seven hundred and eighty, issued by the above named companies, in the sum of $4,000, each company bearing one-fourth of the risk taken upon (20) twenty bales of cotton, marked W. T. S., on board cargo of the box number eighteen — Saucer, master- — at and from Albany, Georgia, to Apalachicola, at the rate of four per cent., which premium of $160 is hereby acknowledged to have been received. Loss, if any, payable to W. T. Sutherlin, or order hereon at New York, upon the return of this certificate.</p> <p>(Signed,) “Y. G. RUST, Agent.”</p> <p>“ Countersigned, A. S. Stoddard,</p> <p>General Agent, New York.”</p> <p>Indorsed on the face as follows:</p> <p>“The property is insured under this policy from Apalachicola to New York, by good steamers or sailing vessels, and includes twenty days fire risk at Apalachicola from the discharge of the box.” That on January 20th, 1866, petitioner shipped from Albany, Georgia, for the city of New York, via Apalachicola, twenty bales of cotton, marked W. T. S., on board of cotton box, number eighteen, whereof one Saucer was master; that at Apalachicola said cotton was, in good order) shipped on the bark J. H. McLaren for the city of New York, the point of final destination; that at the date of shipment said cotton was of the value of $4,000 ; that said bark arrived safely at the city of New York, on or about April 10th, 1866; that a survey was made by the port wardens of the city of New York, said cotton pronounced damaged by water, and a sale ordered and made by due course of trade, and under existing laws then in force, netting from said sale the sum of $2,527 16, such sale occurring on April 20th, 1866; that defendant is therefore indebted to petitioner the principal sum of $1,475 85, with interest thereon from said date of sale until paid; that petitioner has demanded, and defendant has refused payment of said claim.”</p> <p>The record fails to disclose the plea filed by defendant.</p> <p>When the case was called for trial, it was agreed between the parties that Richard F. Lyon, Esq., an attorney at law? should preside, Judge Strozier having been of counsel for plaintiff.</p> <p>Plaintiff introduced the certificate in his declaration set forth; also his own deposition, and that of W. Ii. Price, who examined the cotton upon its arrival in New York, by which the damage was proven and also efforts to obtain a settlement from defendant. Plaintiff closed.</p> <p>Much evidence was introduced by the defendant, which it is unnecessary here to set forth, as a consideration of the same is not involved in the decision of the Court.</p> <p>The jury returned a verdict for the plaintiff for the sum of $728 75, with interest from date of the sale of cotton.</p> <p>The defendant moved for a new trial upon the following, among other grounds, to-wit:</p> <p>Because said verdict is without any evidence to support it, and manifestly against the Weight of evidence.</p> <p>The motion for a new trial was overruled, and plaintiff in error excepted.</p>

<p>Homestead. Domicil. Before Judge Parrott. Gordon Superior Court. February Term, 1872.</p> <p>Clement Arnold, as next friend of Mary A. Darnell, formerly Mary A. Cobot, widow of F. M. Cobot, deceased, and of Mark Cobot, Norman F. Cobot, Frederick M. Cobot and John P. Cobot, minor children of said F. M. Cobot, petitioned the Ordinary of Gordon county to have a homestead set apart for the benefit of said widow and minors in the real estate of said F. M. Cobot.</p> <p>John Harkins, a creditor, objected, upon the following grounds, to-wit:</p> <p>1st. Because said applicant has not filed a schedule of the personal property owned by the estate of deceased.</p> <p>2d. Because said widow and minor children are non-residents of the State of Georgia.</p> <p>3d. Because said widow has had a large amount of said estate before the filing of said application, to-wit: more than, is allowed for a homestead.</p> <p>Issue having been joined upon the aforesaid objections, and the homestead allowed by the Ordinary, John Harkins appealed to the Superior Court.</p> <p>Upon the trial before the jury, it appeared from the evidence that F. M. Cobot died in 1864, leaving the aforesaid widow and minor children; that Mrs. Cobot married W. H. Darnell in 1867 or 1868, and resided in Calhoun, Georgia; that Darnell, in 1868, went to Floyd county, temporarily, for the purpose of teaching school, claiming, always, Calhoun as his home; that Darnell left Calhoun in January, 1869, and went to Lebanon, Tennessee, in response to a call from a Cumberland Presbyterian congregation ; that be was a minister of the gospel of the Cumberland Presbyterian Church; that Darnell never relinquished Calhoun as his home, but said, on the contrary, that he intended to return at the end of the year for which he was engaged by said church; that he has not yet returned, and is engaged for another year; that the aforesaid minor children accompanied him to Lebanon, Tennessee; that Darnell has written many letters to persons in Calhoun expressing his intention of returning.</p> <p>The jury returned a verdict in favor of the applicant. John Harkins moved for a new trial, upon the following grounds, to-wit:</p> <p>1st. Because the verdict is strongly and decidedly against the weight of evidence.</p> <p>2d. Because the verdict is contrary to law.</p> <p>The motion for a new trial was overruled, and plaintiff in error excepted and assigns said ruling as error.</p>