Volume 48 — Georgia Reports

<p>Debtor and creditor. Commissions. Usury. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Attachment. Practice. Before Judge Harvey. Floyd Superior Court. July Adjourned Term, 1872. Black sued out an attachment against Scanlon, returnable to the July term, 1870, of Floyd Superior Court. The affidavit was as follows: “GEORGIA — Froyd County. (“Nine hundred and nineteenth District, Georgia Militia.) “George S. Black comes before the undersigned, and on oath saith that John Scanlon is indebted to deponent, to the best of deponent’s belief, in the sum of $1,000 00.

Notice. Service. Set-off. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. Whitaker, for the use of Emmett D. Dodge, brought complaint against Pope, on an account for $6,962 25.

Criminal law. Change of Court. New trial. Before Judge Harvey. Floyd Superior Court. July Term, 1872. Bib Sharpe was placed on trial for the offense of an assault with intent to rape, alleged to have been committed upon the *person of Georgia A. Watters, on March 26th, 1872. Fie pleaded not guilty. The following evidence was introduced: Georgia A. Watters, sworn: I felt something at my back; thought it was my aunt; asked who it was, but no answer was made.

<p>New trial. Verdict. Discretion'. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>Execution. Relief Act of 1868. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.</p> <p>This case arose upon the following facts:</p> <p>D. FI. Baldwin & Company, for the use of D. H. Baldwin, recovered a judgment in the Superior Court ■ of Muscogee county, on the 3d day of May, 1867, against James T. Flewellen, for $18,233 93, principal, and $1,788 08, interest to the date of judgment, with the accruing interest, upon which an execution was issued. This execution was assigned to William M. Moses. It was levied upon certain property of defendant, which sold for $7,000 00, $4,700 88 of which amount was held up by the sheriff, under a notice from Edward Bradley that he claimed such sum as due to him on an execution in his favor, recovered against Abner H. Flewellen, as principal, and James T. Flewellen, as security, in the County Court of Muscogee county, on March 15th, 1867, and under an affidavit of Flewellen that he desired to suspend the payment of said last mentioned execution, under the Relief Act of 1868. On or about July 1st, 1869, whilst said fund was still in the hands of the sheriff, Moses purchased the Bradley execution at fifty cents on the dollar, and on August 27th, in the same year, the sheriff, under the impression that Flewellen’s proceedings under the Relief Act of 1868, to open the judgment upon which said execution was based, had been abandoned, paid over said $4,700 00 to said fi. fa., and it was duly satisfied. But in fact, the proceedings to open said judgment had not then been abandoned, though they were based upon grounds held by the Supreme Court to be untenable. Proceedings were also instituted to open the junior judgment, which were subsequently and before the hearing of this motion abandoned.</p> <p>Under these circumstances the defendant, Flewellen, moved the Court to direct the $4,700 00, by which the Bradley execution *as aforesaid was satisfied, to be entered as a credit on the Baldwin execution. The Court so directed, and Moses excepted.</p>

Award. Exceptions. Amendment. Before Judge Hopkins. Eulton Superior Court. April Term, 1872. On November 3, 1871, during the October term of the Superior Court of Fulton, there was returned to Court and entered upon the minutes an award in favor of the plaintiff, in the case of Lewis Tumlin vs. The Virginia Home Insurance Company. On the succeeding day, the defendant filed *exceptions.

<p>1. Dower — Injunction—Allegations of Bill. — Where the only allegation in a bill seeking to enjoin the defendant from prosecuting her claim for dower, in the lands of which her husband died- seized and possessed, was that she, "after possessing and enjoying the assets of said estate to a large amount in excess of Her lawful dower, and wasting the same by pleading and otherwise, had made application to the Superior Court to set apart her dower in said estate,” which charge was expressly denied by the defendant’s answer, it was error in the Chancellor to direct that the writ of injunction should issue. (R.)</p> <p>2. Same — Bar.—The widow of the deceased testator had the legal right to her dower in one-third part of the land of which her husband died seized and possessed at the time of his death, unless that right was barred in the manner prescribed by the law. (R.)</p>

Criminal law. Indictment. New trial. Practice. Evidence. Bill of exceptions. Newly discovered evidence. Before Judge Wright. Troup Superior Court. November Term, 1871. Robert Farrow was placed upon trial for the offense of murder, alleged to have been committed upon the person of Reuben Germany, a person of color. The defendant pleaded not guilty.

<p>New Trial — Power to Grant. — The City Court of Atlanta has no power, under the Act organizing said Court, to grant new trials, nor can that power be derived from that provision in the Constitution allowing writs of error from the judgment of City Courts.</p>

<p>Factors — Lien.*—Delivery of produce to a common-carrier consigned to factors under a contract before that time made, is such a delivery to the latter as will cause their lien to attach for advances made. (R.) ,</p>

Equity. Receiver. Before Judge Johnson. Muscogee Superior Court. October Term, 1872. John R. Screven, as receiver of the Brunswick and Albany Railroad, brought trover against William R. Clark, for eight box, railroad freight-cars, of the value of $15,000 00. The defendant pleaded the general issue.

Criminal law. Venue. Before Judge PIopicins. Fulton Superior Court. April Term, 1873. Plaintiffs in error were placed on trial for the offense of keeping a lewd house. The jury returned a verdict of guilty. A motion for á new trial was made upon the ground, amongst others, that the verdict was contrary to law. The brief of evidence fails to disclose where the offense was committed. The motion was overruled and plaintiffs in error excepted.

<p>1. Railroad Company — Charter—Condemnation of Land. — Where a railroad company claims title to land, • as having been condemned tinder the provisions of its charter, the burden of proof is upon the company to show a strict compliance with its terms. (R.)</p> <p>2. Same — Same—Same—Notice—-Evidence.—Upon the trial of the issue as to whether land was legally condemned under the provisions of the charter of a railroad company, it was error to allow a witness to testify that “the assessment was made in accordance with the provisions of the charter, and all the notices required to be served, were either served or waived by the parties,” although the original papers may have been lost or destroyed. (R.)</p> <p>3. Same — Same—Evidence—Sworn Copy of Original Proceedings.— The sworn copy of original proceedings, produced by a witness in Court, is better evidence than his oral declarations. (R.)</p> <p>4. Same — Condemnation of Land — Payment—Stock.—Where the owner of land, through which a proposed railroad will run, contracts to accept payment for his land in the stock of said company, upon the consolidation of said company with another, said land owner is not compelled to accept the stock of said new company. (R.)</p> <p>5. Instructions. — It is error for the Court to charge upon a point not in evidence. (R.)</p>

<p>(Trippe, Judge, was providentially prevented from presiding in this case.)</p> <p>1. Judgments — Jurisdiction.*—The judgment of a District Court of the United States, having jurisdiction of the parties and the subject matter of the judgment, is conclusive between the parties in a State Court, upon the merits of the matter adjudged, but the jurisdiction of the Court is always open to inquiry.</p> <p>2. Same — Same—Service.—Where there is nothing in the action of the Court to show that the defendant was notified, and the judgment upon its face shows that the defendant did not appear, and the return of the marshal is without any formal venue, and does not state where the defendant was served, it is competent for the defendant in a suit on the judgment in a State Court, to show that the service was effected out of the territorial jurisdiction of the marshal, and when he had no authority to effect service.</p>

Equity. Injunction. Usury. Judgments. Before Judge Hopkins. Fulton County. At Chambers. February 1st, 1873. Dawson A. Walker filed his bill against William R. Phillips and Edward White, making, substantially, the following case: White borrowed from Phillips, at different times, $2,090 00, for the use of which he agreed to pay him five per cent, per month.

<p>Landlord and tenant. Vendor and purchaser. Before Judge Wright. Fayette Superior Court. October Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>Possessory warrant. Certiorari. Attorney and client. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.</p> <p>Swift, Murphy & Company filed their petition for certiorari to the decision of Thomas J. Shivers, a Notary Public and ex ofhcio Justice of the Peace, upon the trial of a possessory warrant for three bales of cotton, in favor of Mary F. McLemore, *against petitioners. The application was sanctioned and the writ issued. The answer of the Justice showed that, upon the trial of the case, it was proved by F. M. Reese, that plaintiff and one John H. Joiner farmed together in Lee county, Alabama, during the year 1870, and were jointly interested in the crops. That Joiner, being indebted to plaintiff for money loaned, to secure the same, executed to the plaintiff a deed of trust or mortgage, with power of sale, which embraced all his interest in the crops of cotton, corn, etc., dated February 10th, 1870, and recorded on July 7th, 1870. That Jinks & Shannon, a firm of merchants at Loachapoka, Alabama, attached five bales of cotton as the property of Joiner, on the premises cultivated by said Joiner and the plaintiff. That a claim was filed by the plaintiff and a trial had before a Notary Public and a jury at Loachapoka, Alabama, which tribunal decided in favor of the claimant. That Joiner, on December 22d, 1870, sold and conveyed to the plaintiff his entire interest in the crop, except three bales of cotton, one of which was to go to Andrew Dawson, and two to J. C. Phillips. That the Alabama Notary Public ordered the officer having the cotton in charge, after it had been awarded to the plaintiff by the verdict of a jury, to deliver the same to Joiner, who claimed it as exempt, under the laws of Alabama. The warehouseman refused to deliver up the cotton, on the ground that it had been awarded, by the verdict of a jury, to the plaintiff, and he had been instructed by witness not to deliver said cotton unless so ordered by the plaintiff’s attorneys. That Joiner then saw Mr. Willis, one of the plaintiff’s attorneys, who went with him and instructed said warehouseman to deliver said five bales of cotton to Joiner, upon his paying all charges. That Joiner paid the charges, took possession of the cotton and sold the same to Plollifield & Jinks. That this last transaction, to-wit: the delivery of said five bales of cotton to Joiner, was proved to have occurred on the Monday subsequent to the verdict of the jury and the order of the Court that said cotton should be delivered to the plaintiff. That Hollifield & Jinks *shipped three bales of the cotton to the defendants, and two bales to Montgomery, Alabama. That Jinks, of’Hollifield & Jinks, is the same person as Jinks, of Jinks & Shannon. That he was present at the trial of the claim case, knew its result, and plaintiff’s right to the cotton at the time Hollifield & Jinks purchased from Joiner.</p> <p>The Court affirmed the judgment of the Justice, and the defendants excepted, and now assign said ruling as error.</p>

Criminal law. Murder. Indictment. Misnomer. Autrefois acquit. Charge of Court. Reasonable do'ubts. Witness. Jury. New trial. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. Isham B. Oneil was placed on trial for the ynurder of James Tittle. The defendant pleaded not guilty. The jury returned a verdict of guilty.

<p>Injunction — Discretion of Court.- — The granting or refusal to grant an injunction is vested by law in the discretion of the Judge of the Superior Court, to whom the application is made, and being so vested, it was manifestly intended that he should exercise that discretion, on the statement of facts exhibited to him, and the Supreme Court will not interfere unless some well established rule of law, or principle of equity, has been violated. (R.)</p>

Pleading. Contracts. Negligence. Ratification. Statute of limitations. Before Judge Johnson. Muscogee Superior Court. May Term, 1873. *S. & J. Palmer & Company brought case against the Southern Express Company for $1,000 00 damages.

<p>1. Warehouseman — -Liability for Storage — Principal and Agent.— The purchaser of cotton, who stores the same with a warehouseman, is liable for the storage, notwithstanding he is the agent of a third party in making the purchase, unless he disclose the fact of his agency, and his principal to the warehouseman.</p> <p>2. Same — Same — Same — Election — Instructions. — If, after such storage, the bailee ascertained the agency, and elected to go on the principal for his claim for storage he would be bound by such election; and when the Court charged this principle, and further charged, that, “To make inquiries as to whether the principal be liable, to request that his accounts be forwarded to the principal to ascertain if he will pay them, will not be an election, there must be an intent to look to an ascertained principal alone for payment to constitute an election,” it was not error — the more especially when the whole charge is looked to in connection with the evidence on this point in this case.</p> <p>3. Same — Same—Same—Evidence.—-When the Court fully and distinctly leaves the questions as to agency and election to the jury, it Was not error — at least not such error as to authorize a new trial, for the Court to have refused to allow a witness to testify: “That after the presentation of the account to A. B. (the alleged principal) by the attorney of defendant, which fact was known to the executor of the purchaser of the cotton, the executor paid to A. B. about $8,000 00 due by the testator to A. B. on a guaranty.”</p> <p>4. Same — Same—Same—Same.—Such evidence may exhibit the equity of the principle why an election should discharge the agent, but it would not tend to establish the point in issue, as against the creditor, to-wit: Had he made an election?</p> <p>5. Same — Same—Tien of Warehouseman. — Under a warehouseman’s receipt as follows: “Received from W. U. Gerrard, one hundred and twenty-seven bales of cotton, marked, numbered, etc., as per margin, (the marks, etc., being given) subject to this receipt only on paying customary charges and all advances, acts of providence and fires excepted,” the warehouseman has not only a lien on the cotton, but the consignor is liable for the customary charges that may accrue, and his liability continues until he may sell and give notice to the warehouseman, unless he be discharged by the act or consent of the warehouseman.</p>

<p>United States Court. Attachment. • Judgment. Marshal’s sale. ■ Waiver. Before Judge Robinson. Morgan Superior Court. September Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Estoppel. 'Title. Confederate States. In pari delicto. Railroads. Before John Peabody, Esq., an attorney at law, presiding by consent. Muscogee Superior Court. May Term, 1872.

<p>*Railroads. Charter. Stockholders. . Waiver. Before Judge Harvey. Floyd Superior Court. July Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>Criminal law. Continuance. Juror. Challenge. Witness. Evidence. Arson. Occupied dwelling house. Verdict. Commutation. Recommendation to mercy. Before Judge Core. Bibb •Superior Court. April Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>New Trial — Conflicting Evidence — Discretion of Court. — Where there has been a jury trial and a verdict, and the evidence is conflicting, it is for the jury to determine upon the credit to be given to the-witnesses, and if the Judge below, in the exercise of his legal discretion, refuses a new trial, there is no legal ground for the interference of this'Court to grant a new trial.</p>

<p>“GEORGIA — Henry county.</p> <p>(Signed) “S. C. McDaniel,</p>

When this case was called, counsel for defendants moved to dismiss the writ of error, upon the ground that the bill of exceptions showed the following facts: That on August 27th, 1872, the Chancellor had refused an injunction on the bill presented to him by complainant; that this decision was carried by writ of error, to the July term, 1872, of the Supreme Court where if was reversed; that on March 1st, 1873, a motion was made to dissolve said injunction, and «overruled by…

<p>Principal and agent. Overseer. Damages. Recoupment. Evidence. Burden of proof. Before Judge Hopkins. DeKalb Superior Court. March Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Eminent domain. New trial. Before Judge Harreee. Terrell Superior Court. June Term, 1872.

<p>1. Constitutional Provision — Removal of Defaulting Tax Collector. —Section 918, Revised Code, authorizing the Governor to vacate the commission of defaulting tax collectors, is not “inconsistent with” Article IX. of the Constitution, which provides that county officers “shall be removable, on conviction, for malpractice in office, or on the address of two-thirds of the Senate,” so as to be annulled by said Article, or by section 3, Article XI., of the Constitution.</p> <p>2. Same — Same.—Article II., section 4, of the Constitution provides, that “no holder of any public moneys shall be eligible,” etc., and section 120, Revised Code, makes the failure or refusal by all holders or receivers of public money of the State to account for or pay over the same, after reasonable opportunity, “a sufficient reason for vacating any office held by such person.” Section 918 of the Code provides, that the Governor may so vacate a commission in case of a defaulting tax collector.</p>

Witness. Consideration. Rebellion. Evidence. Admission. Before Judge Wright. Meriwether Superior Court. August 'Term, 1872. 'Lewis H. Edwards brought complaint against John L. Dixon, as administrator upon the estate of George A. Hall, as principal, and said John L. Dixon, as security, on a promissory note, dated August 29th, 1861, due one day after date, for $200 00, payable to the plaintiff or bearer.

Homestead. Removal of incumbrance. Mortgage. Before Judge Harreee. Clay Superior Court. September Term, 1872. Griffin & Clay foreclosed a mortgage, executed by John F. Treutlen, on nine head of mules, to secure the payment of a promissory note for $1,407 55, on April 8th, 1871, and had the execution issuing therefrom levied upon the mortgaged property. The mules had been exempted, under the homestead law, prior to the levy.

Administrator. Returns. Confederate money. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872. J. J. Newton et al., the heirs-at-law of William Newton, deceased, on June 9th, 1871, cited Alfred J. King, the administrator upon the estate of said deceased, to appear before the Ordinary of Floyd county for a final settlement. The Ordinary rendered a judgment in favor of the administrator. The plaintiffs carried the case by appeal to the Superior Court.

<p>Presumptions. Corporations. Principal and agent. Notice. Before Judge CoEE. Bibb Superior Court. April Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>Executor de son tort. Before Judge Harreee. Terrell Superior Court. May Term, 1872.</p> <p>Alfriend & Coleman brought complaint against John H. Daniel, as executor in his own wrong upon the estate of Westley Daniel, deceased, on an account for medical services rendered to said Westley Daniel, amounting to $176 00, besides interest. The record fails to disclose any plea as filed by the defendant. *The evidence for the plaintiffs made the following case: The account was admitted to be correct as against Westley Daniel. Westley Daniel died about January 1st, 1870. His property, exceeding largely the debt sued, for, went into the possession and control of his widow. She died during the last of 1870 or first of 1871. The defendant took possession, as her administrator, of what property she left, but did not know whether any of said property ever belonged to Westley Daniel, deceased. Two mules, of the value of about $140 00, which the widow had at the time of her death, had been worked by Westley Daniel during his life, and were under his control at the time of his death. He treated them as if they belonged to him.</p> <p>Upon motion, the Court awarded a non-suit, and plaintiffs excepted, and now assign said ruling as error.</p>

Promissory notes. Duress. Before Judge Green. Pike Superior Court. October Term, 1871. Jefferson Hogan brought complaint against David H. Moore, principal, and John A. Jackson and Thompson Graham, securities, on a note made by said defendants on September 22d, 1865, payable twelve months after the date thereof to J. B. Stafford, or bearer, for $604 55. On the note were the following entries: “.For value received, I indorse the within note, not liable in the first instance.

<p>1. Criminal Law — Instruction—Impeachment of Witnesses.*— Where the Court charged the jury, “that every witness in the case is to be believed until impeached in some one of the modes known to the law. A jury cannot arbitrarily, of their own motion, set aside the evidence of any witness; the presumption of innocence attaches to witnesses which remain until removed by proof,” and there was no impeaching evidence, unless the statement of the defendant not under oath shall be considered as such, in reference to which the Court charged the jury, “that they were the exclusive judges of the weight that was due to such statement,” the charge was not erroneous. (R.)</p> <p>2. New Trial — Newly Discovered Evidenced †— Newly discovejed evidence which would not probably have produced a different result is no ground of new trial. (R.)</p>

<p>Ejectment — Vendor and Purchaser — Attornment.*—Whilst, as a general rule, it is true that one who goes into possession of land under a contract or purchase, cannot, at law, dispute the title of his vendor, so long as his possession is undisturbed, yet if the vendor himself parts with the title, or if it be sold under execution against him, the vendee may, in good faith, attorn to the purchaser, and in an action of ejectment by the vendor against the vendee, the vendee may, though the purchase money is'still unpaid, show such sale and attornment as a defense to the action.</p>

<p>Criminal Law — Perjury—Evidence.—Where the issue on a trial of an indictment for perjury was whether the defendant swore willfully, absolutely, knowingly and falsely, in swearing that he did not make and deliver a promissory note to the prosecutor, nor authorize any one else to make the note for him, and it was in evidence that the defendant could not read or write, and that the note was written and signed by a third party, though at the request of defendant, and read to him, it was error in the Court to refuse to permit the defendant to prove that “it was the understanding of the parties to the paper which was executed that the same was not intended as a note, but simply as a memorandum of an agreement to submit a controversy to arbitration.”</p>

<p>*Landlord and tenant. Distress warrant. Recoupment. Before Judge Cowart. City Court of Atlanta. June Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Forcible entry and detainer. Possession. Before Judge Har-REle. Randolph Superior Court. November Term, 1872. Richard V. Carter made affidavit before Thomas Coleman, Justice of the Peace, that Lorenzo D. Monroe and Eugenius L. Douglass had forcibly entered and detained a certain lot of-land with a dwelling house and mill thereon in the county of Randolph, of which deponent had had the peaceable, possession.

<p>Transfer of Tax Execution — Levy and Sale.* — Before the passage of the Act of August 24, 1872, there was no authority in any officer to transfer an execution for taxes so as to entitle the transferee to enforce the same by levy and sale of the property of the defendant.</p> <p>Illegality. Tax. Execution. Before Judge Robinson. Jones Superior Court. April Term, 1872.</p>

<p>Ejectment. Deed. Mistake. Evidence. New trial. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.</p> <p>*For the facts of this case, see the decision.</p> <p>1st. Proof necessary to establish mistake in deed. Gamble vs. Knott et al., 40 Ga. R., 199; Adair vs. Adair, 38 Ibid., 46; Wyche vs. Green, 16 Ibid., 63; Administrator of Ligon vs. Rogers, 12 Ibid., 288; Reese vs. Wyman et al., 9 Ibid., 436.</p> <p>2d. Mistake must be made at time of execution. Reese vs. Wyman et al., 9 Ga. R., 436; Administrator of Ligon vs. Rogers, 12 Ibid., 288; Wyche and wife vs. Green, 16 Ibid., 63.</p> <p>3d. Verdict must show on which plea rendered. Code, sec. 3502; Tompkins vs. Covey, adm’r, 14 Ga. R., 119.</p>

Injunction. Illegal sale. Mortgage. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872. On October 30th, 1871, an alias mortgage execution in favor or Horton & Rikeman, against John G. McKenzie, was levied upon the west half of lot number forty-six, in the Coosa division of the city of Rome, with the improvements thereon, as the property of the defendant. A claim was filed to the land levied on by Morris Kohn.

New trial. Payment. Before Judge Robinson. Jasper Superior Court. August Term, 1872. Richmond A. Reid brought complaint against John B. Whitfield and Elbert W. Baynes upon the following note: “On or before the 3d day of November next, we or either of us promise to pay H. J. Dennis or bearer two hundred and seventy-five dollars, for value received. October 20th, 1868.

<p>Stamps. Evidence. New trial. Ordinance óf 1865. Before Judge Hopicins. Fulton Superior Court. April Term, 1872.</p> <p>Johnson brought complaint against Kile on an account for twenty boxes of tobacco, weighing twenty-one hundred pounds, alleged to be worth $3,150 00, with interest from June 12th, 1864, and on a ’due bill for $1,488 00, dated June 15th, 1864. The record fails to disclose the plea of defendant.</p> <p>The following evidence was introduced on the trial:</p> <p>John G. Johnson, the plaintiff, sworn: The debt, the subject matter of this suit, has been regularly given in for taxes, and the taxes on it paid, except for the year 1865, and no taxes were required to be paid for that year. Plaintiff only placed a five cent revenue stamp oh the note, as he did not regard it as worth more than $100 00. In 1864, sold to defendant twenty boxes of tobacco for $6,000 00 in Confederate *money. Defendant paid him between $1,800 00 and $2,000 00, in Confederate Treasury, notes, and turned over as collateral security, twenty-eight seven-thirty notes or bonds, to secure the payment of $2,800 00, and gave his note for the remainder of the purchase money, $1,400 00. The reason plaintiff would not receive the notes or bonds as payment, was because he wanted the "new issue,” and these notes or bonds were only worth sixty-six and two-thirds cents in the dollar, and had to be funded in four per cent, certificates by a given time, or depreciate one-third in value. Besides, defendant told plaintiff he wished to get them back, as they were interest bearing notes. The tobacco, since the war, would have been worth from seventy-five cents to one dollar per pound. Tendered these notes back just before this suit was commenced.</p> <p>The due bill sued on was placed in evidence, having on it a five cent revenue stamp.</p> <p>Thomas Kile, the defendant, testified as follows: In 1864,</p> <p>bought of plaintiff two boxes of tobacco, and paid him about $4,800 00 in Confederate money, and gave his (defendant’s) note for the balance. The seven-thirty notes were not given as collateral security, but were delivered in part payment. These notes were worth as much as the new issue, and the only effect the Funding Act had, was to make them worth a premium. Might have said to the plaintiff at the tim.e he paid them to him, that he . would give him new issue- for them when he got it, or that he wanted to keep them because they were interest bearing notes. This was a Confederate transaction, and at the time $1 00 in gold was worth from $19 00 to $20 00 in Confederate money.</p> <p>Four witnesses testified that the seven-thirty notes or bonds-were not included in the Act requiring what was known as the old issue, to be funded within a specified time. At all times these notes were at par, and worth fully as much as the new issue. '</p> <p>Barber’s tables were, by consent, considered in evidence, by which from June 1st, to July 15th, 1864, $1 00 in gold was worth $18 00 in Confederate money.</p> <p>*The jury returned a verdict for the plaintiff for $258 00 principal, and $139 55 interest.</p> <p>The defendant moved for a new trial upon the following grounds:</p> <p>. 1st. Because the Court erred in admitting in evidence the note, having but a five cent revenue stamp thereon, the defendant objecting thereto.</p> <p>2d. Because the Court erred in admitting, over the objection of defendant’s counsel, evidence which would-authorize the jury to find more than $100 00 as due on the note.</p> <p>3d. Because the verdict was contrary to the evidence.</p> <p>The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.</p>

Criminal law. Seduction. Indictment. Presumption. Witness. Charge of Court. Res geste. Adultery and fornication. Before Judge Hopkins. DeKalb Superior Court. March Term, 1872. *Myron D. Wood was placed on trial for the offense of seduction. The indictment contained three counts.

Municipal corporation. License. Before Judge Robinson. Baldwin Superior Court. August Term, 1872. The above cases, involving the same questions; were argued and decided together.

<p>1. Criminal Law — Continuance.—Where the defendant was indicted for having used obscene and vulgar language in the presence of a female, without provocation, the absence of a witness -by whom he expected to prove that the female was at one time pregnant and absented herself from the community in which she lived on that account, was no ground of continuance, as such proof, if introduced, would constitute no defense. (R.)</p> <p>2. Same — Obscene Language — Presence of Female. — When obscene and vulgar language is used in the hearing of a female, the words are used in the presence of a female, as contemplated by the statute. (R.)</p>

<p>1. Deed — Monomania—Improper Influence — Evidence.*—Where the issue upon trial was, whether a deed made by the grantor under which property acquired by his first wife, is conveyed away to the exclusion of his child by her, and under which the fee simple title is conveyed to his daughter by his second wife and the children 'of his brother, was the result of monomania and the improper influence exercised by his brother, which deed the grantor subsequently had taken up, and which he again confirmed, it was not error in the Court to allow a witness to testify that some time between the execution of the deed and the death of the grantor, he had heard him (the grantor) say that his brother was trying to get him to convey to the brother’s children said property, which came by his first wife, and that he asked witness’ advice about it; that at the time the brother was present with some papers he was endeavoring to induce the grantor to sign. (R.)</p> <p>2. Same — Same—Instruction.— Upon such an issue it was not error for the Court to charge the jury that if the grantor, at the time of the execution of the first deed was laboring under monomania, caused by the marriage of his daughter, and the deed was the result of that monomania, they should set it aside. (R.)</p> <p>3. Verdict. — The verdict of the jury being the decision of a tribunal appointed by law to pass upon facts, and being not contrary to, but rather supported by the evidence taken altogether, ought not to be disturbed. (R.)</p>

<p>New trial. Before Judge Core. Bibb Superior Court. April Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Ejectment. Deed. Recitals. Evidence. Statute of limitations. Prescription. Minors. Before Judge Harree. Terrell Superior Court. May Term, 1872. *For the facts of this case, see the decision. The defendants did not claim under Delay and had no right to complain. Code, sections 2520, 3732, 3733; 11 Ga. R., 460; Ibid., 520; 8 Ga. R., 12 Ga. R., 52.

Gift. Presumption. Statute of limitations. Distribution. Evidence. Before Judge Johnson. Muscogee Superior Court. May Term, 1872. James McKee and others, the heirs-at-law of Hockley C. McKee, brought ejectment against John G. McKee for parts of city lots numbers five hundred and twenty-three and five hundred and twenty-four, in Columbus, the declaration containing a count for mesne profits. The defendant pleaded the general issue.

Criminal law. Fine. Execution. • Before Judge Harvey. Polk Superior Court. August Term, 1872. The issues involved in this State arose upon a rule nisi, calling upon McMeekin to show cause why execution should not issue against his property for the purpose of collecting a fine of $300 00 and costs, imposed upon him by the Court, upon his having been convicted of the offense of keeping open a tippling house on the Sabbath day.

<p>1. Homestead — Exceptions—Rent—The rent of a house and lot wholly disconnected from the homestead is not one of the exceptions mentioned in the Act of 1869, for which the produce, rents or profits of the homestead is liable. (R.)</p> <p>2. Same — Necessaries.*—The term “necessaries,” as used in said Act, refers to such necessaries as have been furnished to the family in connection with the enjoyment of the homestead property, such as were necessary for them in the cultivation of the crops raised thereon, and for the support of the family whilst so doing. (R.)</p>

Trusts. Rife estate. Forfeiture. Statute of limitations. Before Judge Core. Bibb Superior Court.

Injunction. Fraud. Notice. Lis pendens. Before Judge Buchanan. Meriwether county. At Chambers. May 15th, 1873. Jasper N. Smith, as administrator de bonis non cum testamento annexo upon the estate of John Malcolm, deceased, filed his bill against William Malcolm, making, substantially, the following case: Defendant was the sole surviving executor of the will of deceased, and was in possession, as such, of the entire estate.

<p>1. Practice in Superior Court — Entries on Docket. — It ' is the province and duty of the Court to control the entries on its own docket, and if incorrectly made, to have the same corrected. (R.)</p> <p>2. Same — Same—Reinstatement of Case Dismissed. — The defendant is not concluded on the trial of a case by the action of the Court in reinstating it on the docket, from pleading and proving an alleged agreement and settlement, and that it was to be dismissed in pursuance of the alleged agreement, and that the entry of dismissal was in fact made in accordance with such contract. (R.)</p>

Attorney at law. Pauper. County funds. Before Judge Harvey. Floyd Superior Court.' January Adjourned Term, 1872. William D. Elam petitioned the Superior Court for a rule nisi requiring H. J. Johnson, as Ordinary of the county of Floyd, to show cause why the writ of mandamus should not *issue directing him to draw his draft on the county treasurer for the sum of $150 00, alleged to be due to relator for professional services rendered to a pauper.

Corporation. Garnishment. Affidavit. Before Judge Harvey. Whitfield Superior Court. October Term, 1872. Tyson sued out an attachment against A. D. Breed, returnable to the Justice Court for the eight hundred and seventy-second district, for $25 00. Process of garnishment directed to the Selma, Rome and Dalton Railroad Company, was served on O. J. Cunningham, its agent at the city of Dalton. Judgment was obtained against the defendant.

Continuance. False imprisonment. Justice of the Peace. Juries. Malice. Presumption. Before Judge Schley. McIntosh Superior Court. April Adjourned Term, 1872. Tunis G. Campbell was placed on trial for the offense of false imprisonment under color of legal process, alleged to have been committed upon the person of one John M. Fisher. The indictment set out the warrant under which the imprisonment was charged to have been committed.

<p>Deed. Consideration. Duress. Before Judge Green. Spalding Superior Court. February Term, 1872.</p> <p>The Southern Express Company, brought complaint against Elizabeth Duffey for a lot of land situated in the city of Griffin, and for mesne profits from March 13th, 1869. To the declaration was annexed, as an abstract of title, a statemept of a deed purporting to have been made by defendant on the 13th of March, 1869, conveying the premises in dispute to plaintiff.</p> <p>The defendant pleaded that she was not in possession of any land in the city of Griffin, to which the plaintiff had a legal title; that the pretended deed under which the plaintiff claimed was obtained by duress, fraud and misrepresentations; that said deed was executed for no consideration; that it was made for the purpose of compromising a felony; that plaintiff, under its charter, was not authorized to hold real estate.</p> <p>The evidence made the following case:</p> <p>In April 1866, W. J. Duffey, the son of the defendant, was in the employ of plaintiff as messenger on the Macon & Western Railroad. Whilst acting in this capacity, he appropriated *to his own use moneys intrusted to his care to be delivered at Atlanta and Macon, Georgia, to the amount of $1,766 30, which sum the plaintiff was compelled to pay. He escaped to Texas, but was brought back to Atlanta by the superintendent of the southern division of plaintiff, under a requisition from the Governor of Georgia upon the Governor of Texas. He arrived at Atlanta in irons. After his arrest in Texas, propositions were made by the officers and agents of plaintiff to the defendant, that if she would pay the amount of money he had appropriated, he should be released, stating, at the same time, that they could not, under the law, settle the criminal prosecution, as that matter would have to be left to the civil authorities. These negotiations were pending for some six weeks. W. J. Duffey was arrested in February, 1869. At length, on March 13th, 1869, the defendant executed to the plaintiff a deed to the premises in dispute, purporting to have been made in consideration of $2,126 94, the principal and interest due to plaintiff by her son. Plaintiff gave to defendant a receipt in. full for said indebtedness. W. J. Duffey was then released.</p> <p>The jury returned a verdict in favor of the defendant. Whereupon the plaintiff moved for a new trial upon the following grounds:</p> <p>1st. Because the Court erred in charging the jury as follows: “That if you believe from the evidence that the agents of the company went to Mrs. Duffey and told her that W. J. Duffey was in the power of the company, and that they could send him to the penitentiary, and by doing so, so overwhelmed her as to put her in duress, so as to prevent her free and voluntary action in the making of the deed, and the plaintiff afterwards book advantage of this, and received a benefit by it in the making of this deed, then the same is void, and the plaintiff is not entitled to recover.”</p> <p>2d. Because the Court erred in the following charge: “That if Mrs. 'Duffey made this deed understanding it to be for the purpose of procuring the release of her son, W. J. Duffey, and, the other party had reason to believe she so understood it, the deed is void.”</p> <p>*3d. Because the Court erred in the following charge: “Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will,” the same being inapplicable to the case; and in the same connection, in charging as follows: “That duress might exist when the free will of the party is restrained; or her consent induced by threats or other acts. That if such were the facts in the case, the deed procured under such a state of facts was void.”</p> <p>The motion for a new trial was overruled and the plaintiff excepted, upon each of the aforesaid grounds.</p> <p>-.1st. Charge of Court on duress not error: Code, sections 2595 2710 2714.</p> <p>' • 2d. Deed void: _ Sections 2999, 2703, 2707 ; 39 Ga. R., 85.</p> <p>_ 3d., Verdict is right; no necessity for a new trial: 10 Ga. R.,' 429; 14 Ibid., 153; 15 Ibid., 155; 16 Ibid., 368; 30 Ibid., 278, 958. Judicial discretion not abused.</p>

Certiorari. Statute of limitations. Before Judge Harreee. Early County. At Chambers. July 1st, 1872. Humphrey Grimes petitioned for the writ of certiorari in the case of P. B. & J. F. Jones, against petitioner, tried in the Justice Court of the eight hundred and sixty-sixth district. The petition was sanctioned and the writ issued.

<p>Trusts. Judgment. Injunction.' Illegality. Before Judge Sessions. ' Camden Superior Court. April Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Injunction. Inferior Court. Contract. Roads and bridges. Before Judge Harvey. Floyd county. At Chambers. December 11th, 1872. Held: that the grant was a transfer of their corporate power, and therefore void. That the city of O., which succeeded to the town of O., could have the grant canceled and the wharves surrendered by A B:” 13 Cal., 540, Oakland vs. Carpentier; U. S. Dig., 1860, 225.

<p>Sheriff’s sale. Bond for title. Lien. Execution. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.</p> <p>T. W. Brunson filed his bill against John J. Grant and S. C. Lindsay, making the following case:</p> <p>On June 5th, 1869, Grant sold to complainant a certain tract of land in Muscogee county for $2,500 00, complainant paying $1,500 00 in cash, and giving two notes for $500 00 each, the first payable on September 1st, 1870, and the second *on November 1st, following, Grant executing to complainant his bond, conditioned to make him a valid title to said property, on the payment of the aforesaid notes. When the notes became due, complainant was ready and willing to pay off and discharge them, if Grant would execute to him a title to said land in accordance with the condition of said bond, but Grant failing to comply with his contract, the notes were not paid. At the May term, 1871, of Muscogee Superior Court, Grant obtained judgment against complainant for the principal and interest due on said notes, and had an execution levied upon the aforesaid land, under which the same was sold on the first Tuesday in November, 1871, to S. C. Lindsay, for $1,400 00, who was informed as to all the facts aforesaid, and was combining with Grant to defraud complainant. The property was worth a much larger sum than that for which it was bid,off, but the public, knowing the title to the same to be still in Grant, would not pay the market value. On December 7th, 1871, the sheriff executed a deed to Lindsay, ejected complainant therefrom, and placed him in possession. In pursuance of said fraudulent combination, on January 6th, 1872, Grant executed a fee simple title conveying said land to Lindsay.</p> <p>Prayer, that on complainant’s paying to said Grant the $1,000 00, with interest, due on said notes, the deeds aforesaid be canceled, and Grant compelled by decree specifically to per-from the obligations assumed.in said bond; that Lindsay be decreed to account to complainant for the rents and profits of said land; that the writ of subpoena may issue.</p> <p>■ The defendant moved the Court to dismiss said bill for want of equity. The motion was sustained, and complainant excepted.</p>

<p>Executors and administrators. Pleading. Title. Evidence. Before Judge Sessions. Wayne Superior Court. October Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Bail. Sheriff’s bond. Before T. W. Alexander, an attorney at law, presiding by consent. Floyd Superior Court. July Term, 1872.

Equity. Specific performance. Before Judge Johnson. Mucogee Superior Court. May Term, 1872. Forsyth filed his bill against. McCauley for specific performance, making the following case: .

<p>l; Factor’s Lien — Enforcement—Affidavit.*—To create a lien under the 1977th section of Irwin’s Revised Code, and to have the same enforced upon the growing crops of farmers, the plaintiff must allege in his affidavit, that he is either a factor or a merchant, and that as such, he has furnished either provisions or commercial ’manures, or both, upon such terms as may have been agreed upon by the parties. (R.)</p> <p>2. Same — Same—Same—Execution—Levy—Trespass—Damages.-†— An execution based upon an affidavit not containing i the aforesaid allegations, is void, and the plaintiff who directed the levy, and the sheriff who levied the same upon the property of defendant, were trespassers, and liable for damages as such. (R.)</p> <p>3. The verdict of the jury is not excessive. . (R.)</p>

<p>Forcible entry. Before Judge Sceirey. McIntosh Superior Court. November Adjourned Term, 1872.</p> <p>On January 15th, 1870, there came on for trial, before W. T. Thorpe, Esq., a Justice of the Peace for the twenty-second *district, the case of W. J. Wallace, administrator, vs. Margaret DeLagal, upon the following warrant:</p> <p>“STATE OF GEORGIA — McIntosei County:</p> <p> "To Margaret DeLagal: </p> <p>“Whereas, on the 4th day of January, instant, W. J. Wallace, administrator, appeared before the undersigned and made oath that on or about the 1st day of January, 1867, you, the said Margaret DeLagal, did forcibly enter into two tracts or parcels of land * * * and violently, and without authority of law, took possession of said land, the same being the property of the heirs of Bright B. Harris, deceased, with mehace, force and arms, and that you, the said Margaret DeLagal, still keep and retain possession of said lands, contrary to the láws of said State, the good order, peace and dignity thereof: Wherefore you are required to appear, etc.</p> <p>“Witness my hand and official .signature this 4th day of January, 1870.</p> <p>(Signed) “W. T. Thorpe, J. P.” [R.s.]”</p> <p>When the case was called for trial, the defendant moved to dismiss the warrant, because it showed upon its face that the defendant had been for three years in peaceable possession of the property in .dispute. The motion was overruled and the defendant excepted.</p> <p>The jury awarded the premises to the plaintiff. The defendant carried the case, by writ of certiorari, to the Superior Court, upon the above ground of exception. The Superior Court sustained the judgment of the magistrate, and the plaintiff in certiorari excepted.</p>

*Judgment. Lien. Purchaser. Before Judge Wright. Troup Superior Court. May Term, 1872. An execution in favor of Abner Glanton, against Plenry T. Heard, was levied upon a house and lot in the town of LaGrange, in Troup county, which was claimed by F. A. Frost.

New trial. Before Judge McCuTchen. Whitfield Superior Court. July Adjourned Term, 1872. Charles T. Farrar foreclosed a laborer’s lien aguinst Charles E. Marshall, for the sum of $75 00. The execution issuing therefrom was levied upon a shingle mill and fixtures, as the property of the defendant. A claim was introduced by C. S. & S. Burt. The case was carried by appeal from the Justice’s Court of the six hundred and twenty-seventh district to the Superior Court.

<p>State. Party. Receiver.. Practice in the Supreme Court. .Practice in the Superior Court. Bill of exceptions. Before Judge Sessions. Glynn Superior Court. May Adjourned Term, 1872.</p> <p>Rufus B. Bullock, as Governor of the State of Georgia, for said State, Lyon, McLendon & Company, and others, creditors of, and the city of Brunswick and others, stockholders in the Brunswick and Albany Railroad Company, suing in behalf of themselves and others standing in similar respective relations to the defendant, filed their bill against the Brunswick and Albany Railroad Company, prayiiig an injunction and the appointment of a receiver.</p> <p>*The case made by the bill, so far as it .concerns the State of Georgia, was as follows:</p> <p>The said State, in order to secure the construction of the road by the defendant, by its constitutional authorities, passed two Acts, by the first of which, under certain conditions, it obligated itself to indorse the bonds of said company for the sum of $15,000 00 per mile, and by the second of which said indorsement was extended to an additional $8,000 00 per mile. The road has been completed a distance of one hundred and seventy miles, and the bonds of said defendant have been indorsed by the State to the amount of $4,910,000 00. These bonds have been negotiated or hypothecated to various persons, some of whom are unknown to complainants, and whilst they do not admit the legality of their issue or negotiation, yet they are informed and believe that the present holders thereof will seek to render the State responsible on said indorsement. For the security of the State from liability, the defendant executed a deed of trust, conveying all its property, real and personal, to said State, and the Governor has seized said property in order to compel the defendant to pay its indebtedness, and has appointed John Screven receiver. But the counsel of numerous creditors of said road, holding executions against it, have advised their clients that such seizure is invalid, and will not be regarded when the day of sale, under such executions, arrives.</p> <p>The hill was sanctioned, and John Screven was appointed receiver by the Chancellor, and took possession of all of the property of said defendant. Pending the litigation, an Act of the General Assembly was passed declaring that the aforesaid indorsement was not binding upon the State.</p> <p>At the May term, 1872, of Glynn Superior Court, the counsel for the State moved to strike the Governor’s name from said bill, thus withdrawing the State'from the litigation. This motion was resisted by the defendant upon the following grounds, to-wit:</p> <p>1st. Because the Governor forcibly seized the Brunswick *and Albany Railroad with its equipments, and placed them in the hands of a receiver.</p> <p>2d. Because at the instance of the Governor this bill was filed, and upon the issues therein contained the defendant has joined in the pleadings, appeared before the master in chancery, and the appointment of a receiver by this Court was predicated upon the seizure and appointment by the Governor.</p> <p>3d. Because the action of the Legislature of 1872 does not change, in law, the status of the case made, for their act was an exercise of the judicial power, and the question was before a Court, to the jurisdiction of which it had been voluntarily submitted.</p> <p>4th. Because the only right the Governor could exercise would be to dismiss the bill and restore the property forcibly and illegally taken from the defendant back to those who are its owners and custodians, and who have done no act to forfeit their right to it without a judicial hearing.</p> <p>The objections were overruled and the motion sustained. Whereupon, the defendant excepted.</p> <p>In the further progress of the case, Henry Clews & Company, a creditor of the defendant, who had been made a party complainant, moved to withdraw a claim of $2,844,000 00, which had been before the auditor appointed by the Chancellor, and to substitute therefor a claim for $562,000. 00, and to go before the auditor with proof of the same. This motion was resisted by Lyon, McLendon & Company, upon the ground that it was contrary to the law and the practice of the Court to allow a claim to be withdrawn after it had been passed upon by the auditor.</p> <p>The objections were overruled and the motion allowed. Whereupon, Lyon, McLendon & Company excepted.</p> <p>Error was assigned by the Brunswick & Albany Railroad Company upon the first exception, and by Lyon, McLendon & Company, upon the second.</p>

<p>1. Executors and Administrators — Judgment.*—A judgment against an executor or administrator, where there is no plea, that the sum recovered “be levied of the goods and chattels, lands and tenements of the testator or intestate,” is sufficient, under section 3515, Revised Code, without adding the words “in the hands of, etc., to be administered.” These last words are not required by said section.</p> <p>2. Same — Affidavit of Illegality.' — When the maker and indorser of a promissory note are dead, and the administrator of the maker is also executor of the indorser, and suit is brought on the note against him in both capacities, though the judgment does not specify the relation of maker and indorser, it is good against him, at least, so far as he is the representative of the maker, and if levy be made accordingly, he cannot arrest it on that ground by affidavit of illegality.</p>

Award. Exceptions. Before Judge Gibson. McDuffie Superior Court. October Term, 1872. The seventh ground of exception to the award was submitted to a jury, and a verdict returned against the objection. The re- ■ maining facts are fully reported in the decision.

Trespass. Railroads. Statute of limitations. Charter. Before Judge Sessions. Pierce Superior Court. September Term, 1872.

<p>X. New Trials — Bill of Exceptions — Recital of Grounds.* — Whenever the bill of exceptions contains a mere recital of the grounds taken in a motion for a new trial, and the judgment of the Court below is a general judgment overruling the motion, and nothing appears in the motion, judgment or bill of exceptions verifying the grounds as true, no assignment of error - can be founded on such grounds so as to entitle them to be heard in this Court; and the more especially is this so, where the pleadings in the case do not authorize the issues raised in such grounds.</p> <p>2. Partnership — Farming on Shares-† — In 42 Georgia Reports, 226, the Court held that when a contract was made by a freedman and a landlord to make a crop for one year, by which the landlord was to furnish the land and stock, and the freedman to work the same, and to receive one-half of the crop made thereon, such a contract did not make them partners:</p> <p>Held, That this case comes within said decision.</p> <p>3. New Trials — Sufficiency of Evidence to Sustain Verdict — Case at Bar-‡ — There being sufficient evidence to authorize the verdict in this case, and the Court below refusing a new trial, this Court will not interfere on that ground.</p>

<p>Garnishment — Attorney’s Fees. — Where an attorney at law, in response to a summons of garnishment issued at the instance of a judgment creditor, answers that he has a certain sum of money in his hands belonging to the defendant, which, before he was served with such summons, he had decided to appropriate towards the satisfaction of other judgments than that upon which the process of garnishment issued, but had not actually done so, because he was awaiting the consent or refusal of the defendant to such action, it was not error in the Court to order the fund paid to the oldest execution, after allowing reasonable attorney’s fees and costs to the diligent creditors bringing the fund into Court. (R.)</p>

<p>1. Carriers of Goods — When Liability Ceases.* — Tlie liability of a common carrier ceases if the goods are taken from his possession by legal process.</p> <p>2. Same — Illegal Possession of Goods — Possessory Warrants. — A possessory warrant, which states that certain cotton having been lately in the peaceable and legally-acquired possession of A B, has been illegally taken out of his possession by some person unknown and placed on the cars of 'the Griffin and North Alabama- Railroad Company, and directing the seizure of the property and the arrest of said unknown person when found, is not a void Warrant. It is a warrant in which A B is the complainant, the railroad company the defendant, and it sufficiently charges the property to be in the possession of the railroad company, without lawful warrant. The order to arrest the unknown person, and the failure to direct the arrest of the company, do not make it_ void, if the property be, in fact, taken.</p> <p>3. Same — Seizure by Sheriff.† — -It is not the duty of a common carrier to keep his doors locked and to refuse entrance to a sheriff, who comes to seize property in the possession of the carrier, if the sheriff have legal process.</p> <p>4. Same — Same.—When goods delivered to a common carrier for transportation were seized by legal process and taken out of his possession by the sheriff, and the carrier forthwith gave notice to the consignor and consignee, and they made no reply and took no further notice of the proceedings:</p> <p>Held, That the carrier had a right to presume they had abandoned the property, as subject to the legal process which had, seized it.</p>

Garnishment. Bankrupt. Before Judge Gourd. City Court of Augusta. May Term, 1872. At the May term, 1872, of the City Court of Augusta, Neil McCallum & Brother obtained a judgment against Adolph Brandt, on an action of complaint, for $620 13, besides interest and costs. Herman Brandt was served with process of garnishment in said suit, returnable to the February term, 1872, but had failed to file an answer.

Landlord and tenant. Equitable remedy at law. Specific performance. Before Judge Harvey.' Floyd Superior Court. January Adjourned Term, 1872. For the facts of this case, see the decision.

<p>Stockholder’s Agreement to Suspend Operations — Effect.—The stockholders of a chartered loan and building association agreed unanimously, at a period long antecedent to the time when, by the rules of the company, it would close, to cease operations and settle their mutual relations on principles of equity. At the same meeting a majority of the stockholders adopted by vote a scheme of settlement, which repudiated, as a basis, the rule of crediting each stockholder with his payments and legal interest thereon, and charging him with *his receipts and legal interest, but was based upon an arbitrary compromise of the assumed rights of the borrowers and non-borrowers, under the charter, in its ordinary working. A large minority of the stockholders protested against this scheme and filed a bill in equity, seeking to enjoin the officers of the corporation from carrying out said scheme, and praying that the rights of the parties should be ascertained and the assets disposed of by the Court on principles of equity which the bill claimed simply required each stockholder to be credited with his payments and legal interest and charged with his receipts and legal interest:</p> <p>Held, 1. Even though the rules of the company under the charter were not obnoxious to the laws against usury, still as by common consent it was agreed that the company was now to wind up, and as the contracts of the parties must therefore of necessity be set aside, and the rules of the charter be disregarded, it was not competent for the majority to adopt a scheme repudiating the rate of interest prescribed by law between persons having moneyed dealings with each other, and that the injunction was therefore properly granted.</p> <p>2. Scheme of Settlement — Cardinal Rules. — The cardinal rule for the settlement among the stockholders on principles of equity will be to charge each stockholder with his receipts and interest on them from the time of the receipt, and to credit such stockholder with his payments and interest from the date of the same, according to the rules of law for such calculations, to divide the assets according to the result, subject, of course, to such equitable modification and adjustment as to expenses, losses, etc., as may appear equitable from the proof at the trial.</p> <p>3. Injunction — Effect on Stockholder’^ Debts. — The injunction prohibiting the officers from carrying out the plan adopted by the majority ought not to hinder the collection of the debts due by the forfeiting stockholders.</p> <p>4. Speedy Payment — Chancellor’s Duty. — Under the prayer of the bill it is the duty of. the Chancellor to take such order as will ensure the speedy payment of the balances due and the collection of the assets, Including any insurance policies, that the company may own or may hold as collaterals, according to the rights of the parties in each case, as well as balances due by stockholders as debts due by persons who had forfeited their stock before the date of the assessment, as will insure the speedy preparation of the whole matter for a final decree.</p>

Trusts! Sale. Parties. Infants. Before Judge Harvey. Floyd Superior Court. July Term, 1872. . Mary A. E. R. Hill and her husband, H. B. Hill, filed their bill against Daniel S. Printup to set aside a sale of property, held in trust for the said Mary, made by her father, James B. Perkins, to Daniel S. Printup, on August 25th, 1865.

Vendor’s lien. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872. Daniel S. Printup brought complaint against / Charles H. Smith, as administrator of William R. Smith, deceased, on a note' for $225 00, claiming as security therefor a vendor’s lien on the land of Richard V. Mitchell. The jury returned a verdict for the plaintiff for the amount of said note with interest, and established said lien.

<p>1. Criminal Law — New Trial — Reasonable Doubt. — This Court will not reverse the judgment of the'Judge of the Superior Court refusing a new trial, simply because, from the evidence, there may arise in a fair mind a reasonable doubt of the prisoner’s guilt.</p> <p>2. New Trial — Failure to Establish Guilt. — To authorize a new trial on this ground, the failure in the'testimony to establish guilt must be so complete as to make doubt and uncertainty inevitable. If a fair mind may, under the testimony, be satisfied beyond a reasonable doubt, the verdicj is not illegal.</p>

New trial. Deed. Registry. Ejectment. Before Judge Sessions. Appling Superior Court. March Term, 1872. ■ John C. Maund brought complaint against Charlotte Roe, for lot of land number three hundred and twenty-five, in the second district of Appling county, containing four hundred and ninety acres. The defendant plehded a prescriptive title. The facts of this case were as follows: Both parties claimed under a grant to James Phillips, dated April 27th, 1839.

<p>Criminal law. Constitutional law. Costs. Before Judge Robinson. Jasper Superior Court. August Term, 1872.</p> <p>, For the facts of this case, see the decision.</p>

Railroads. Negligence. Fences. Before Judge Robinson.' Baldwin Superior Court. August Term, 1872. Gaston Vaughn brought complaint against the Macon and Augusta Railroad Company for $250 00 damages, alleged to have been sustained by reason of the killing of a mule by defendant. The defendant pleaded the general issue, and that the killing of the mule was the result of an unavoidable accident.

<p>1. Mortgage — Lien for Amount Advanced. — A gave B an obligation to pay a certain amount of money, and also to assume and discharge the debts owed by B, and by B and A, as contained in a schedule therein referred to, and at the same time executed to B a mortgage to secure him for said certain sum, and also for the payment of said debts, reciting in the mortgage the fact that said obligation was given, and its substance:</p> <p>Held, That the lien of said mortgage is good to indemnify B for whatever amount of said debts he may have to pay.</p> <p>2. Injunction. — That the wife of A, who sets up a purchase of the mortgaged property from her husband after the execution of the mortgage, and with notice of it, cannot enjoin B from enforcing his rights under the mortgage, on the ground that said debts were not included in the mortgage, or that she had no notice of their amount.</p>

<p>1. Equity — Answer.—Defendants in equity cannot, at the same time, charge and discharge themselves by their answer. (R.)</p> <p>2. Responsive Answer — Instructions__The Court should instruct</p> <p>the jury as to what was, and what was not responsive to the bill, in order to make it evidence for the defendants. (R.)</p> <p>3. Trusts and Trustees — Investments.—Where a trustee received a large sum of money in April, 1860, and in February, 1864, obtained an order from the Judge of the Superior Court, authorizing him, as trustee, to invest the fund then in his hands in Confederate money, in Confederate bonds, which was. done, and the same became worthless, it was error to charge that the order . of the Judge of the Superior Court was conclusive proof that it was trust money which was so ordered to be invested. (R.)</p> <p>4. Same — Evidence.—When a trustee has received Confederate money during the war in the discharge of his legal duty, when it was the common currency of the country, in good faith, when prudent business men were receiving it, he will be protected, but the facts and circumstances under which it was received, must be clearly and satisfactorily shown as evidence of that good faith and the fairness of the transaction. (R.)</p> <p>5. Trustee^ — Liability of.* — If a trustee violates the law in the discharge of his duties, he is responsible for such violation, no matter how honestly he may have acted. (R.)</p>

<p>Supersedeas. United States Courts. Jurisdiction. Illegality, Before Judge Twiggs. Richmond Superior Court. January Term, 1872.</p> <p>Injunction. Illegality. Before Judge Gibson. Richmond county. At Chambers. August 21st, 1872.</p> <p>Henry F. Russell, Mayor of the city of Augusta, for the use of Harper C. Bryson, brought an action of debt against Clarence V. Walker, principal, and William C. Jones and Michael O’Dowd, securities, on a bond executed by said Walker as vendue master of said city. Three other suits of a precisely similar character were brought by said Mayor for the use, respectively, of Wik liam Glendenning, administrator, the Georgia Railroad and Banking Company, and of the Assignee of Swift & Horsey, bankrupts. Upon the verdict obtained against the .securities in Bryson’s case, judgment was entered, execution issued and was levied upon the property of Michael O’Dowd. An affidavit of-illegality was filed thereto. The issue thus formed was submitted to the Court upon the following agreed statement of facts:</p> <p>“Clarence V. Walker was elected, gave bond, and qualified as auctioneer of the city of Augusta, under the Act of December 24, 1827. Four suits were brought on his bond, in Richmond Superior Court, for money collected from the sale of goods, which was not paid over.</p> <p>“At January term, 1871, of that Court, the first case, in favor of William Glendenning, administrator, was tried. Defendants *pleaded in this case the discharge of Walker as'a bankrupt, and a release thereby of the securities.</p> <p>“On a hearing thereof, the Court discharged Walker, holding the securities liable under the 33d section of the Bankrupt Act, and a verdict was entered against them.</p> <p>“In the other three cases no plea was filed, counsel for the plaintiff recognizing the fact that the defense was the same in all the cases, and waiving the filing of pleas.</p> <p>“The Judge allowed verdicts to be taken against the securities in these other three cases, but ordered as follows: ‘That execution be stayed for thirty days from the final adjournment of the Court, and if a bill of exceptions is filed therein, until the decision of the same in the case of Henry F. Russell, for the use of William Glendenning, vs. C. V. Walker et al., in the Supreme Court, be made in that Court, the parties to the said cases reserving the same rights as if each and all of these cases had also been taken up under bills of exceptions, and a decision of the Supreme Court in the Glendenning case to control each case.’</p> <p>“To the decision in the Glendenning case both parties to that suit excepted, O’Dowd giving as security on his supersedeas bond in that case, Peter Sheron and Pattrick H. Primrose, but filing no supersedeas bonds in the other cases.</p> <p>“The case was heard at the July term, 1871, of the Supreme Court, J. P. Carr and James C. C. Black, Esqs., appearing of counsel for O’Dowd, H. W. Hilliard, Esq., of counsel for Glendenning, administrator, and Frank PI. Miller, of counsel for H. C. Bryson, Georgia Railroad and Banking Company, and the Assignee of Swift & Plorsey, the three plaintiffs whose executions were suspended until the decision by the Supreme Court of Georgia.</p> <p>“On the 31st day of October, 1871, the Supreme Court of Georgia affirmed the decision of Richmond Superior Court, holding the securities liable, but reversed the decision relieving Walker. The remittitur from the Supreme Court was filed in Richmond Superior Court, November 3, 1871.</p> <p>“On the 10th of November, 1871, in the Glendenning case, *Jones & Walker having declined to join therein, Michael O’Dowd filed in the Supreme Court of Georgia a writ of error to December terra, 1871, of the Supreme Court of the United States, and a bond, dated November 7th, 1871, approved by Chief Justice Lochrane, for $913 46, purporting to be in conformity to section twenty-second of the Act of Congress, of September 24th, 1789, which was executed in Richmond county, Georgia, in the presence of James C. C. Black, Esq., one of the counsel of O’Dowd, in this Court, who acted as a Notary Public in taking the bond whereon Peter Sheron and Patrick H. Primrose signed as securities. A copy of the writ of error was filed in the clerk’s office of Richmond Superior Court, November 16th, 1871, and one in the Supreme Court of Georgia, November 10th, 1871.</p> <p>“No writ of error or bond was filed by O’Dowd in, or reference made in the proceedings had by him, to the other cases in which executions, by order of Richmond Superior Court, were to be stayed until the decision of the Supreme Court of Georgia. No bond or writ of error has ever, in any case, been filed in Richmond Superior Court.</p> <p>“A motion has been made in the Supreme Court of the United States to docket and dismiss the Glendenning case, which has been argued, but not decided. On the 16th January, 1872, judgment was entered against C. V. Walker, pursuant to remittitur from the Supreme Court of Georgia, and a return of nidia bona had thereon.”</p> <p>Counsel for plaintiff moved to dismiss the affidavit of illegality, under tire law and the facts agreed on:</p> <p>1st. Because no bond had been filed with the affidavit.</p> <p>2d. Because the order of Richmond Superior Court, set forth in said affidavit of illegality, only suspended the enforcement of the above H. fas. until a decision of the Supreme Court of Georgia in the Glendenning case.</p> <p>3d. Because the order of the Superior Court of Richmond county, set forth in the affidavit of illegality, (the decision of the Supreme Court in the Glendenning case having been pronounced,) is now void and of no effect.</p> <p>*4th. Because the said order of the Superior Court of Richmond county was entirely unwarranted, without authority of law, and a usurpation of authority, except so far and for such length of time as the plaintiffs chose to abide by it.</p> <p>5th. Because said order of Richmond Superior Court was a virtual denial of the right of plaintiffs to have security on stipersedeas bonds, while the case of Glendenning was pending in the Supreme Court, and can no longer be enforced.</p> <p>6th. Because the persons signing as securities on the supersedeas bond, dated November 7, 1871, and filed in the clerk’s office of the Supreme Court, at Atlanta, November 10th, 1871, are the same persons who are sureties on the supersedeas bonds filed in the Glendenning case in the clerk’s office of Richmond Superior Court, April 28th and May 16th, 1871, and being already bound by the judgment of the Supreme Court of Georgia, the new bond signed by them is a nullity.</p> <p>7th. Because no copy of the writ of error to the Supreme Court of the United States was filed in the clerk’s office of Richmond Superior Court, where the records in the case are kept, until Tuesday, 16th of- November, 1871, when the same should have been filed within ten days, (Sunday exclusive,) from October 31, 1871, pursuant to section.22. Act of Congress of September 24, 1789.</p> <p>8th. Because no citation was served on Glendenning, administrator, twenty days prior to the December term of the Supreme Court of the United States, as required by section 22, Act of Congress, September 24, 1789.</p> <p>9th. Because executions can issue at any time in Georgia, (Code, 3569,) and where cases are affirmed by the Supreme Court, on filing the remittitur: Code, 4224. The Act of Congress of September 24, 1789, section 23, relating only to practice in the United States Court.</p> <p>The Court (Judge Twiggs) sustained the affidavit of illegality, and overruled the motion. Whereupon, plaintiff in execution excepted.</p> <p>Upon the verdicts rendered in the cases of the Mayor, for the use of the Georgia Railroad and Banking Company, and *the Mayor, for the use of the assignee of Swift & Horsey, bankrupts, judgments were entered, and executions issued and were levied upon the property of O’Dowd. He filed his bill, setting forth, substantially, the same facts as were agreed upon on the trial of the issue formed upon the affidavit of illegality in the Bryson case, praying that the aforesaid plaintiffs in fi. fa. be enjoined from enforcing said executions, or either of them, until the case of the Mayor, for the use of William Glendenning, administrator, shall have been finally heard and adjudicated.</p> <p>The Chancellor (Judge Gibson) refused the injunction, and complainant excepted.</p> <p>These two cases were argued and decided together in the Supreme Court.</p>

Bailment. Partnership. Pleading. Evidence. Jurisdiction. Immaterial error. Jury. New trial. Before Judge Gourd. City Court of Augusta. May Term, 1872. *Mary A. Brummel brought assumpsit against Wilson C. Plewitt, on an account for $950 00 in gold coin or its value in currency, received from her for safe keeping on May 21st, 1869. ' The declaration also contained a count for money loaned, and one for money had and received.

<p>Illegality. Tax-affidavit. Evidence. Principal and surety. B.efore Judge Core. Crawford Superior Court. September Term, 1872.</p> <p>This case will be found fully reported in the motion for a new trial here given, and decision of the Court.</p> <p>The defendant moved. for a new trial upon the following grounds:</p> <p>1st. Because the Court erred in refusing to dismiss the levy because no affidavit of the payment of taxes had been filed.</p> <p>2d. Because the Court erred in excluding all testimony going to show the consideration of the note which was the basis of the judgment from which the execution issued, to have been Confederate money.</p> <p>3d. Because the Court erred in permitting to be read to the jury the following entry upon the execution, to-wit: “There was paid on the judgment upon which this ü. fa. is founded, $63 10. December 3d, 1870.” This entry was not tendered in evidence. Hugely, the plaintiff, when testifying, stated that the amount mentioned in said entry was the same as was *set forth in the receipt which was in evidence, except that there was a mistake of one dollar in the amount.</p> <p>4th. Because the Court erred in holding and charging the jury, “That the only question made by the affidavit of illegality was, whether or not the ñ. fd. had been paid off or settled,” and in not submitting to the jury the discharge of the security, Sullivan, further than by payment or settlement of the judgment.</p> <p>5th. Because the Court erred in refusing to charge the jury,. “That if Hugely, at any time after the making of the note or due-bill, accepted it as payment, the judgment was satisfied.”</p> <p>The motion for a new trial was overruled, and the defendant excepted upon each of the grounds aforesaid.</p>

Guardian and ward. Jurisdiction. Illegality. Waiver. Service. Before Judge Robinson. Greene Superior Court. September Term, 1872. The petition of Samuel C. Hitchcock, former guardian of the person and property of Irby Hudson,. „a minor, to the Superior.

New trial. Partnership. Set-off. Before Judge PIarrell. Terrell Superior Court. May Term, 1872. Wrigley & Knott brought complaint against Roddy T. Harper upon a note dated July 15th, 1868, and due sixty days after date, for $222 and on an account for *$26 34.

<p>Court and counsel. Practice. Statute of frauds. Contracts. New trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.</p> <p>*For the facts of this case, see the decision.</p>

<p>1. Written Contract — Latent and Patent Ambiguity — Parol Testimony.* — When a suit was pending on a promissory note dated January 1st, 1860, for $240 00, due one day after date, made by C. McCalla, with a memorandum on the back thereof as follows: “The within note to be paid when C. McCalla collects a certain note on Thomas Pledger for $251 00.” And it was in proof, by a wit,ness, who was present *when the note was made, that it, “the note, was given for a note the payee had on Pledger, which C. McCalla was to collect; when collected he was to pay the note sued on. The payee was to pay C. McCalla for his services. The memorandum was made at the same time as the note:</p> <p>Held, That these facts were proper to be considered by the jury in determining what the parties meant by the note and memorandum, and that it was error in the Court to charge the jury that they could only consider it as it tended to show fraud or want of consideration.</p> <p>2. Same — Same—Intent of Party. — If the facts show that it was the intent of the parties, by this note and memorandum, simply to make C. McCalla an agent to collect the Pledger note, then his liability would depend on whether he did collect it, and if not, whether he failed to use that diligence which it is the duty of a paid agent to use'.</p>

Criminal law. Burglary. Indictment. New trial. Before Judge Buchanan. Coweta Superior Court. September Term, 1872.

<p>Landlord and Tenant — Statute of Frauds. — Where a parol contract was made in November, 1865, for the rent of a plantation for the year 1866, and the defendant went into possession of the place, in pursuance of the contract, and cultivated it for the year 1866, this is such a part performance of the contract as will take it without the operation of the statute of frauds. (R.)</p>

Railroads. Damages. Evidence. New .trial. Compromise. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872. Fleming brought suit against the Selma, Rome and Dalton Railroad Company for damages sustained by him, resulting from the killing of his cow by the defendant. The defendant pleaded not guilty. The expenses of litigation were claimed by the plaintiff as a part of the damages. The jury returned a verdict for the plaintiff for $60 00 and costs.

New trial. Principal and agent. Before Judge Harrell. Terrell Superior Court. May Term, 1872. James R. Knott & Company brought complaint against the Southwestern Railroad Company, upon an account for cross-ties furnished, amounting to $743 75, with interest from February 25th, 1871. The defendant pleaded the general issue.

<p>Rule against Sheriff. — Two attachments were placed in the hands of a sheriff and levies made, and whilst the property was in the possession of the sheriff the defendant gave replevy bonds, the security justifying, and stated in the answer of the sheriff, to have been at the time a citizen of the State of Georgia, and no exception was taken to the bonds at the return term of the attachments; at the trial term, judgments were rendered against the principal and security, and executions placed in the hands of the, sheriff, who made returns of nulla bona; the plaintiff petitioned the Court for a rule against the sheriff, who set up the above stated facts in his answer, and also that he had acted in good faith; the answer was not traversed. The Court did not commit errpr in refusing to make the rule absolute. (R.)</p>

Railroads. Roads. Before Judge Twiggs. Washington Superior Court. March Term, 1872.

Will. Equity. Before Judge Buchanan. Coweta Superior Court. September Term, 1872. Armsted B. Hill, as executor of the last will of Major B. Clark, deceased, filed his bill against the legatees under said will, making the following case: Testator bequeathed to his wife, Elizabeth M. Clark, a special legacy of a horse and rock-away, and an annuity of $500 00, to be paid annually by complainant as executor, out of the net annual income of- said estate.

<p>Warehousemen. Diligence. New trial, Before Judge Gourd. City Court of Augusta. May Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>1. Railroad — Nonresident Lessee — Liability of.* — A non-resident of this State, who is the lessee of a railroad in this State, and therefore liable to be sued as was the railroad company, is none the less liable to be proceeded against by attachment as other non-residents are.</p> <p>2. Carriers† — Goods Damaged by — Duty to Repair. — Where goods arrive at their point of destination and the packages or casks are, by the fault of the carrier, in a damaged condition, so that they cannot be handled without loss and further damage, it is the duty of the carrier to repair the casks, if possible, before the owner can be compelled to receive them, and if he refuse to do this the owner may refuse to receive the goods and may recover the value, and this without offering to pay the freights, since the carrier has not completed his undertaking.</p> <p>3. Same — Reception—Presumption, Prima Facie Good Order, — - Goods are prima facie presumed to have been received by a carrier in good order for shipment, and if they were not so, it is for the carrier to show it.</p>

<p>Abatement of Action — Marriage Settlement — Ejectment by Trustee — Death of Cestui Que Trust.* — By a marriage settlement a trustee was appointed and the property vested in him for the use of the wife, with power in the wife to dispose of the property by will, and if she ■died leaving children and without executing a will, then to those children and their legal representatives in equal degree. The trustee brought ejectment for a portion of the trust property laying a demise in his name as trustee for the wife and children. Pending the action the wife died:</p> <p>Held, That the action did not abate, but that the same may be prosecuted for the recovery of the property, so that the trustee may be enabled to execute the trust by turning over the possession to those who may be entitled, and to that end may make such amendment and add such demises as may be necessary to make the children formal parties.</p>

<p>1. New Trial — Grounds—No Jurisdiction — Bill of Exceptions.*— A motion for new trial was overruled, and the decision affirmed by the Supreme Court; the defendant then moved to set aside the judgment upon the ground that it was rendered by a Court having no jurisdiction *of the case; this ground was one of the points made upon the motion for a new trial; the motion was overruled, and defendant excepted. The Court committed no error in refusing to certify the bill of exceptions. (R.)</p> <p>2. Same — Arrest of Judgment. — Where a motion was made for a new trial on the ground that no jurisdiction was shown on the face of the indictment, this Court will treat that ground as a motion in arrest of judgment. (R.)</p>

<p>Award. Exceptions. Evidence. Before. Judge Hopkins. Fulton Superior Court. April Adjourned Term, 1872.</p> <p>Two suits were pending in Fulton Superior Court against J. L. Richmond & Company, one in favor of Phillips & Flanders, and the other in favor of William R. Phillips. They were referred to arbitration and awards made in both cases against the defendants. Exceptions were filed to the awards, containing all the evidence submitted to the arbitrators, except the books of account which were used by consent at the hearing without being incorporated therein. Reference is made to the evidence in the various exceptions as sustaining them. The exceptions were overruled, and the awards made judgments of the Court. Neither the books of account, nor any abstract therefrom were embraced in the exceptions passed upon by the Court below, nor in the bill of exceptions by which the case was brought to this Court.</p> <p>Richmond & Company excepted to the decision making the awards the judgments of the Court.</p>

<p>1. Carriers — Negligence—Loss by Fire — Liability for. — Under the Act of Congress, passed March 3d, 1851, entitled, “An Act to limit the liability of ship owners and for other purposes,” the owners of a steamer, which was a “first-class freight boat,” and “a seagoing vessel,” engaged in the carrying trade between Baltimore, Norfolk and Portsmouth, are not liable for the loss of goods by the destruction of the vessel and cargo by fire, unless caused by the design or neglect of the owners. Nor does the fact that such owners have formed an association with other companies as carriers, extending their business as carriers into the interior, affect the question of liability for such loss.</p> <p>2. Charge to Jury — Specific.—When the general charge of the Court as to the negligence was_ correct, an omission to charge as to any particular fact in the testimony connected with that question, was not error. If a more specific charge had been desired, it should have been requested.</p>

<p>Sheriff’s Bond — Death of One Surety and Sheriff — Effect.—Where, pending an action on a sheriff’s bond, the sheriff and one of the securities die, the plaintiff may proceed against the surviving securities. (R.)</p>

Practice. Pleading. Before Judge Hopkins. Fulton Superior Court. Craig brought assumpsit against Pope on an express contract. The defendant filed a plea of the general issue, under *oath. When the case was called for trial, the defendant withdrew the plea which had been entered, and filed the same plea not under oath.

<p>1. Guardian and Ward — Resulting Trust in Favor of Ward.* — If a guardian purchase land, intending to receive a promissory note on other parties, from an administrator in whose hands is the estate in which his ward has a share, and to pay for the land with such note, the consideration of which, is the purchase money of the same land when sold by the administrator, and he does receive the note from the *administrator as the portion of the ward in said estate, and pays the whole price of the land with it, and takes the title to himself, it will so charge the land as a trust in the hands of the guardian, and his vendee who purchases with notice of such facts, as to entitle the ward through her next friend to assert her right of election between the fund thus appropriated, and the land thus purchased and paid for.</p> <p>2. Same^-Husband and Wife — Compromise with Ward. — Under the proper construction of the Act of 1866, securing to the wife the property she had at marriage, or that may come to or be acquired by her during coverture, a guardian cannot make a compromise or accord and satisfaction with his female ward and her husband for her .claim against him as her guardian, she being at the time a minor and having married after the passage of said Act.</p> <p>3. Same — Compromise Pending Suit against Guardian. — If such compromise be made whilst suit is pending against the guardian in favor of his ward by her next friend, without the authority of the Court or the knowledge and consent of the next friend, it is so far a nullity that no deduction from the claim against the guardian can be allowed for what he may advance as a consideration for the compromise, unless it be shown that the same was applied for the use and benefit of the ward.</p> <p>4. Husband and Wife — -Evidence—Admissions—Construction of Statute.* — The admissions of the husband offered as evidence by the wife for the purpose of showing, in connection with other testimony, that the marriage was void, and thereby to relieve herself from any effect that his assent to such compromise might have, were properly rejected by the Court, as they are immaterial under the construction given to the Act of 1866.</p> <p>5. Guardian and Ward — Evidence—Exemplification of Returns.— An exemplification of the returns of a guardian to the Ordinary, though made several years after the actings of the guardian therein contained, and after the commencement of suit against him by his ward, are, admissible in evidence when tendered by him, and such facts are circumstances, which with the other testimony in connection therewith; may be considered by the jury in determining the weight to be given to it.</p> <p>6. New Trial — Verdict Contrary to Law and Evidence — Case at Bar. — Judgment is -reversed in this case because the Court erred in not granting a new trial on the ground that the verdict was contrary to law and the evidence.</p>

<p>1. Trover — Conversion.—Where the plaintiffs loaned seventeen shares of railroad stock to the defendants, upon which to borrow money and transferred to them the title thereto, the stock to be returned on demand; and the defendants borrowed money from certain parties, transferring to them the title to the stock as collateral security with the consent of the plaintiff, the plaintiff cannot, upon a demand on defendants therefor, maintain an action of trover for the stock, before the indebtedness to secure which it was transferred became due.' Aliter, if the defendants had failed to meet said indebtedness at maturity. (R.)</p> <p>2. Same — Same.—Mere non-feasance is not a conversion. (R.)</p>

Railroads. Roads. New trial. Damages. Charge of Court. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. Wood brought case against the Atlanta and Richmond Air Line Railroad Company, for damages alleged to have been sustained by him by reason of its negligence. The defendant pleaded the general issue.

New trial. Bill of exchange. Partnership. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. Hazen & Sons brought assumpsit against William Markham, Miles G. Dobbins, William L. Scruggs and Henry P. Farrow, as joint owners of the “Daily Opinion,” a newspaper published in the city of Atlanta, on the following acceptance: “175 00. “Knoxville, May 21st, 1867. “Sixty days after daté, pay to the order of ourselves one hundred and seventy-five dollars. Value received.

<p>Mechanic’s Lien — Steamboat Liens — Practice.—A mechanic’s lien on personalty was foreclosed under the provisions of the Cod.e applicable to steamboat liens:</p> <p>Held, That it was error in the Court to allow third persons to move to quash the execution, without its having been made to appear to the Court judicially, by affidavit or otherwise, that such persons were creditors of the defendant. The foundation of their right to contest the execution must be laid by an affidavit, as 'the Code requires, of the grounds of their denial of the validity of the plaintiff’s execution. (R.)</p>

Injunction. Judgment. Misrepresentation. Before Judge GrEEne. Henry county. At Chambers. December 4th, 1872. Thomas Hambrick filed his bill against John Dickey and Richard H.' Hightower, deputy sheriff of Henry county, containing substantially the following allegations: On December 21st, 1860, complainant purchased from Dickey a tract of land in Henry county, for $4,000 00, one-half to be paid in a few days, and the balance on December 25th, 1861.

Ejectment. Evidence. Witness. Fraud. Payment. Charge of Court. New trial. Before Judge FIopkins. DeKalb Superior Court. September Term, 1872. Lydia Smith brought ejectment against J. T. Willingham and FTamilton & Russell for the “Red Store lot” in the town of Stone Mountain. The record fails to disclose the defendant’s plea.

Possession. Notice. New trial. Before ■ Judge Harrele. Terrell Superior Court. May Term, 1872. Simon Cogan filed his bill against Nathan G. Christie, Sea-born A. Smith, and William Pemberton and Richard R. Brown, as executors of William B. Jones, for the purpose of canceling two deeds to the “Cogan Mill Place,” one from Christie to Smith, dated November 1st, 1859, and one from Smith to Jones, dated August 4th, 1863.

<p>Evidence. Settlement. Before Judge Harvey. Floyd Superior Court. January Term, 1872.</p> <p>Thomas brought assumpsit against Whitehead, as administrator of John C. Whitehead, deceased, alleging, in his declaration, that on November 1st, 1854, he loaned to said intestate $450 00, taking a bond therefor bearing interest from date; that on the 1st of July, 1858, there was paid on said obligation $100 00; that on the day and year last aforesaid, said intestate, in consideration of the surrender to him of said bond, undertook and faithfully promised to plaintiff that he would make good to plaintiff the amount due on said bond in the final division of his estate, plaintiff being his son-in-law; that, in consideration of said promise, plaintiff surrendered said bond; that said intestate, during his life, and his administrator, since his death, have failed to comply with said undertaking.</p> <p>*The defendant pleaded the general issue, payment, and the statute of limitations.</p> <p>The plaintiff sustained the allegations of his declaration by the evidence of his wife, the daughter of the intestate.</p> <p>The defendant introduced the depositions of Mrs. Martha A. Booze, a daughter of the intestate, and of her husband, Thomas Booze, who, in answer to direct interrogatories, testified as to the details of a settlement between plaintiff and the intestate, by which said bond was paid off in full when it was surrendered. But, on cross-examination, these witnesses testified that all their information on the subject of the settlement was derived from “family conversations,” and were unable to recollect whether the plaintiff was present at such conversations or not.</p> <p>This evidence was objected to by the plaintiff, and the objection overruled.</p> <p>As to this testimony, the Court charged the jury as follows: “I have admitted this testimony, but I charge you that unless you shall believe from the evidence that the plaintiff was present at such conversations, and assented to what was said, the testimony is not legal and you cannot consider it. But if you shall believe from the evidence that the plaintiff was present and assenting', then the evidence is legal, and }’ou can consider it with the balance of the evidence in the case.”</p> <p>The jury returned a verdict for the defendant. The plaintiff moved for a new trial, upon the ground that the Court erred in the aforesaid admission of testimony.</p> <p>The motion was overruled and the plaintiff excepted.</p>

<p>New Trial — Sufficiency of Evidence* — Case at Bar. — Plaintiffs m ejectment introduced in evidence a deed for the premises in dispute, from Samuel Slater to Ann Slater during her life, with remainder to her children by William Slater, and proved the death of *their mother, Ann Slater. The deed bears date January 1st, 1849. Defendant introduced a deed dated December 4th, 1849, to the same premises, from Ann Slater and William Slater, her husband, to Elmore Manes, and one from the representatives of Manes to Waters, with a transfer of the last deed to defendant. It was not in evidence that Samuel Slater was ever in possession of the premises, nor had any title in him, nor that Ann Slater ever accepted the deed from him, or that she and her husband held under him, or recognized the title as ever being in him, nor that the deed was ever in the possession of Ann Slater, or of any one under whom defendant claims:</p> <p>Held, That the evidence does not show a common propositus under whom both plaintiffs and defendant claim, and that no title is shown in the plaintiffs to entitle them to recovery.</p>

<p>Practice — Dismissal after Verdict — Knowledge of Verdict by Plaintiff.* — The plaintiff may dismiss his case at any time before the verdict is published, if unknown to him. (R.)</p>

Homestead. Before Judge Gibson. Richmond Superior Court. 'October Term, 1872.

<p>Administrators and executors. Trusts. Will. Separate estate. Before Judge Gibson. Richmond Superior Court. October Term, 1872.</p> <p>An execution in favor of Edward W. Harker against Clarke & Company, composed of Joseph S. Clarke and William J. Mealing, was levied upon “the one-fourth interest each of the said Joseph S. Clarke and William J. Mealing in a lot of land on the corner of Greene and Monument streets, in the city of Augusta.” The property was claimed by Clarke, as the executor of the last will and testament of Henry Mealing, deceased.</p> <p>Upon the trial of the issue formed, the ‘following evidence was introduced;</p> <p>1st. The execution with the levy thereon.</p> <p>2d. The will of Henry Mealing, deceased, executed on November 21st, 1839, and admitted to probate on January 6th, 1840, the only material portions of which are as follows:</p> <p>“4th. I desire and request that my two youngest children, Jane Teresa and Henry Lewis, be allowed a sufficient sum out of my estate to raise, board, clothe, and school them, to be equal to those now of age, raised and educated, which is as follows: William J., Caroline E., Mary Ann Mealing; which amount my executors may judge sufficient for them till they become of age, or get married, and the remainder of my estate to be equally divided into five equal shares, ‘after deducting a portion off of William J. Mealing and Caroline E. Mealing, part of which they have already received, and converted to their own use and benefit.’</p> <p>*“6th. My desire and request is that my executors be the guardians of my children now under age: Henry Lewis and Jane Teresa. My further will is that my executors be the trustees of all my children, William J., Caroline E. Clarke, Mary Ann, Henry Lewis and Jane Teresa Mealing, and that the same be always held for their sole and separate use during their natural lives, and to remain to their children after their death. It is my will, that if either of my daughters die without lawful issue, one-half of her estate to revert back to the surviving children, share and share alike: then their trustees may give her or them the testamentary appointment of the other half of her or their estate.”</p> <p>“7th. I request and desire and appoint Benjamin H. Warren and Philip H. Mantz to be the trustees of my daughter, Caroline E. Clarke, and that her estate be held by them for the sole use, benefit, and the heirs'of her body.”</p> <p>Also, the following agreed state of facts: “Joseph S. Clarke is the only surviving executor of Mealing’s will. That as such executor he came into possession of said lot as' the property of the testator, and that the will has not been executed as to this lot, and other property of the estate. The firm of Clarke & Company, composed of Joseph S. Clarke and William Mealing, was formed about 1855, and continued to do a large and profitable business until 1866, when they failed. Since that time, J. S. Clarke has been out of business, but William J. Mealing has been-employed, and still is, as the agent of the Georgia Masonic Lottery, from which he derives a comfortable support. W. J. Mealing has never married.”</p> <p>The Court charged the jury that the interest of William J. Mealing in the lot of land levied on was subject to levy and sale, and a verdict was returned accordingly. Clarke, as executor, excepted to said charge, and assigns the same as error.</p> <p>Harker excepted to said charge, and assigns error upon the following grounds:</p> <p>1st. Because the Court held that the interest of Caroline E. Clarke, wife of Joseph S. Clarke, under the will of Henry Mealing, did not vest in her husband, Joseph S. Clarke, and ^thereby became subject to the judgment rendered against him in favor of the plaintiff.</p> <p>2d. Because the Courts held that the language of the seventh item of the will of said Henry Mealing, whereby he directed the estate of Caroline E. Clarke to be held by trustees for the sole use,-benefit, and the heirs of her body, did not create an estate tail', but was simply an appointment of trustees to carry into effect the trust created by the sixth item of said will.</p> <p>3d. Because the Court directed the jury to find the interest of Caroline E. Clarke, under said will, not subject to the execution.</p>

<p>*Assumpsit. Insurance agents. Custom. Examination of witness. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.</p> <p>The Piedmont and Arlington Eife Insurance Company brought assumpsit against Park & Iverson for $5,000 00, alleged to have been collected by them as the agents of said company at Columbus, Georgia, from January 1st, 1868, to January 1st, 1871, for which they had failed to account. The defendants pleaded the general issue, payment, and set-off of $2,500 00 alleged to be due to them for commutation of renewal premiums, on policies obtained by them, after their discharge as plaintiff’s agents.</p> <p>Upon the trial, the plaintiff read in evidence a portion of an. answer by th.e defendants to a bill filed by the plaintiff against them, in which was set forth the following account as correct:</p> <p>“Amount received from first payments. $4,595 12'</p> <p>Amount received from renewals ...... 4,931 89</p> <p>$9,527 01</p> <p> </p> <p>Due company..................... $1,986 80.”</p> <p>The answer also contained the following admission, to-wit: "Their compensation for services, fixed by contract with the complainant, was twenty per cent, of and upon all sums collected for first year’s insurance, and seven and one-half per cent, of and upon all sums received by them for continued renewals of policies — that is, yearly renewals of policies issued through these defendants as agents as aforesaid.</p> <p>Plaintiff closed.</p> <p>John F. Iverson, one of the defendants, testified, that in April 1869, the plaintiff employed the defendants as agents *in the life insurance business, under a contract to pay twenty per cent, on policies issued by said company on applications made through the defendants, and seven and onelialf per cent, on renewals on said policies; that in said contract, nothing was said about the interest of defendants in renewals made on said policies after the discharge of defendants. The following questions were then propounded successively to the witness, and upon objection made by counsel for plaintiff, the objection was sustained, and exception on the part of defendants noted.</p> <p>1st. “Whether he knew of any custom in the life insurance business as to the commutation of the value of renewals on discharging agents?”</p> <p>2d. “Whether he knew of any custom of the plaintiff in the life insurance business to allow discharged agents the commuted value of renewals?”</p> <p>3d. “Whether he knew of any usage in the life insurance business as to the commutation of the value of renewals on the discharge of agents, and what such usage was, if there was any?”</p> <p>4th. “Whether he knew of any usage of plaintiffs in their life insurance business as to the commuting the value of renewals on discharging agents?”</p> <p>5th. “What was the usual and customary commissions received by agents in the life insurance business?”</p> <p>6th. “What the services of Park & Iverson as agents of the Piedmont & Arlington Fife Insurance Company were reasonably worth ?”</p> <p>7th. “Why were the defendants discharged?”</p> <p>The witness further testified that the plaintiff had sent one Meade to settle with them and to discontinue the agency; that on or about the 27th of January the defendants paid to Meade $356 00, and were to have a full settlement on the next day; that on the succeeding day they required Meade to allow them the commuted value of renewals, and on his stating that he had no authority to take such a course, the defendants declined to settle; that on the succeeding day they were discharged. That the rates of commissions were fixed by correspondence. *That the value of the renewals was about $2,500 00.</p> <p>Hampton S. Park, the other defendant, testified substantially as Iverson. The same questions were proposed to be asked him as were propounded to the preceding witness, and on objection made, were excluded by the Court.</p> <p>Other evidence was introduced, not material to an understanding of the decision of the Court.</p> <p>The charge of the Court was as follows, to-wit:</p> <p>“The defendants alleged that there was a special contract between them and the plaintiff, and so the plaintiff admitted. The plaintiff alleged that the special contract was that the defendants were to have twenty per cent, on the first year’s insurance and seven and one-half per cent, while the policies existed. The defendants, on the other hand, contended that the contract was that they were to have twenty per cent, on the first year’s insurance and seven and one-half per cent, on renewals of policies while they existed, and a commutation value in case they were discharged. This is a question for the consideration of the jury, and for the purpose of determining it they would look to the whole evidence, and if upon consideration of it they should be of opinion that the contract was as alleged by defendants, the defendants, if they had been discharged, would be entitled to have and receive a commuted value.</p> <p>“If, at the time suit was commenced, the plaintiff was indebted to the defendants, they should find for the defendants, but if the defendants were indebted to the plaintiff, then they should find for the plaintiff.”</p> <p>To which charge the defendants excepted. The defendants requested the Court to charge the jury as follows: “If the de-</p> <p>fendants were appointed agents of the plaintiff under a contract between the plaintiff and defendants, that they, the defendants, were to receive twenty per centum commissions on all policies issued by the company to persons who applied for said policies through said defendants, as agents, and seven and one-half per centum on renewals of said policies, and nothing was said in said contract limiting the interest of said *defendants in said renewals to the time said defendants continued to act as agents, and if it further appears that plaintiff has discontinued defendants as agents, defendants do not thereby lose their interest in the renewals.”</p> <p>The Court refused to charge as requested, and the defendants excepted.</p> <p>The jury returned a verdict for the plaintiff for $1,98680, with interest from March 1st, 1871.</p> <p>The defendants assign error upon each of the aforesaid grounds of exception.</p>

Criminal law. Res gestae. Evidence. Before Judge Hopkins. Eulton Superior Court. April Term, 1872. Hall was placed upon trial for the offense of an assault with intent to commit murder, alleged to have been perpetrated upon the person of one Thomas Cushman, on December 5th, 1871. The indictment also contained a count charging defendant with the offense of shooting at said Cushman, not in his own defense, nor under circumstances of justification.

<p>^Equity. Injunction. Multiplicity of suits. Before Judge Hill. Washington county. At Chambers. March 18th, 1873.</p> <p>For the facts of this case, see the decision.</p>

Continuance. Providential cause. Practice in the Supreme Court. Jurisdiction. Before the Supreme Court. January-Term, 1873. In addition to the two cases above stated, there were upon the docket of the Supreme Court thirty-seven other cases in which William Dougherty, Esquire, was either plaintiff in error or of counsel for the plaintiff in error. All of these causes were returnable to January term, 1872.

Claim. Equitable remedy. Amendment. Before Judge Mc-Cutchen. Whitfield Superior Court. July Adjourned Term, 1872. Frederick Cox levied an execution in his favor against Samuel W. Cox, on a lot of land in the county of Whitfield, which was claimed by George Wadsworth.

Bailment. Evidence. Before Judge ScpieEY. Chatham Superior Court. May Term, 1872.

Damages. Practice in Supreme Court. Before the Supreme Court. January Term, 1873. This case came up on writ of error from Muscogee county. When it was called in its order on the docket, counsel for plaintiff in error asked leave to withdraw the writ of error. Counsel for defendant in error objected, and moved that the *record be opened for the purpose of awarding damages on the ground that the case had been brought up for delay only.

<p>Release. Bond of indemnity. Covenant. Partnership. Before Judge Hopicins. Fulton Superior Court. April Term, 1872.</p> <p>Kendrick brought suit against O’Neil, Foster & Company on the following instrument:</p> <p>“Atlanta, Georgia, December 27th, 1867.</p> <p>“This writing will witness that there is a balance due of $567 31 on a note given by John W. Grantham to L. Kendrick for the purchase money of a certain gold lot, in the county of Cobb, which the said Grantham afterwards sold to us, we agreeing and binding ourselves to pay off and take up his said note to Kendrick, and giving therefor our certain obligation therefor, in writing, and having made various payments on said note, there is still due from us the balance above stated, which amount of $567 31 we promise to pay to said Kendrick,'’with interest from the 21st day of November, 1866, the date of the last credit. But it is expressly understood ¡that this promise is given and delivered to George Hillyer, Esq., as the attorney of the said Kendrick, and that John B. O’Neil, one of the undersigned partners, claims a set-off of $187 00 against said Kendrick for building a mill in the year 1860, but which, the said Kendrick-being absent, his said attorney is not authorized to allow, and this new promise is given without prejudice to either party, as to any claim of set-off the one against the other, and all former papers are delivered up and canceled.</p> <p>“J. B. O’Neil, Foster & Company, “By J. B. O’Neil.”</p> <p>The defendants pleaded the following instrument, given by plaintiff to John J. Thrasher, one of the partners composing *the firm of O’Neil, Foster & Company, as a release to all the defendants:</p> <p>“AtranTa, Georgia, August 7, 1869.</p> <p>“Received of John J. Thrasher $300 00, paid by him, to be credited on a certain written obligation of O’Neil, Foster & Company to Lemuel Kendrick, dated December 27, 1869, and now in the hands of Hillyer & Brother for collection, and in consideration of said sum, I, as agent for said Kendrick, do hereby covenant and agree that the other partners shall and will duly pay the balance due on said obligation, without further cost or detriment to said Thrasher.</p> <p>“George Kendrick.”</p> <p>Under the charge of the Court, the jury returned a verdict for the defendants. Whereupon, the plaintiff moved for a new trial, upon the ground that the Court erred in charging the jury, “that the legal effect of said receipt, signed by George Kendrick, was to release John J. Thrasher from his liability upon the instrument sued on, and that the release of Thrasher operated in law as a release of the other obligors, and that if the jury shall find that George Kendrick was the authorized agent, for that purpose, of Lemuel Kendrick, and that he, as such agent, gave the receipt referred to, then the other parties to the obligation were discharged.”</p> <p>The motion was overruled, and the plaintiff excepted.</p> <p>Hirryer & Brother, for plaintiff in error, submit that the case at bar is not within the operation of the principle contained in section 2810 of the Code, citing: 4 Ga., 185; 5 lb., 550; 3 Cowen, 155; 2 Johnson, 186; 8 lb., 58, 59; 20 Ga., 415, 676; 24 lb., 288; 30 lb., 731; 2 Story on Con., 994; 2 Parson on Con., 249, et seq.; 8 Mass., 480. The Code of Georgia a mere “compilation,” and in construing Code, old law looked to as a key: 37 Ga., 412; 38 lb., 510.</p>

<p>Will. Evidence. New trial. Offers of compromise. Before Judge Twiggs. Richmond Superior Court. October Term, 1872.,</p> <p>Sallie B. Haley, formerly Sallie B. Crocker, and Mabel E. Crocker, brought complaint against John McElrath for lots numbers forty-four and forty-five, in sub-divisions of the city of Augusta, as found on map prepared by William Phillips. The record fails to disclose the plea filed by the defendant.</p> <p>The evidence made the following case: On July 1st, 1862, David L. Roath purchased from W. J. Reed lot number forty-five, in the city of Augusta, with the improvements thereon, fronting on Ellis street sixty feet, and running back to Greene *street, of the same width. Roath resided on this lot until his death, in the fall of 1867. On March 22d, 1866, he purchased from Henry H. Cumming lot number forty-four, fronting sixty feet on Ellis street, running back of the same width to Greene street; and adjoining on the west lot number forty-five. At the time of this second purchase, there was a dividing fence between the two lots. The evidence is conflicting as to when this fence to the rear of the house on number forty-five was removed. Roath used the front portion of this last purchase as a flower garden, and the back portion as a vegetable garden. On September 22d, 1866, he made his will, containing the following provisions:</p> <p>‘■‘Item 1st. I devise and bequeath my house and lot on Ellis street, in the city of Augusta, where I now reside, to my dear wife, Frances A., for her natural life, and after her death to my two nieces, Mabel E. and Sallie B. Crocker, to be held in trust for my two nieces during their lives.</p> <p>“2d. My accounts as guardian of my nieces, Mabel E. and Sallie B. Crocker, show a considerable indebtedness from them to me. I discharge and release this indebtedness entirely.</p> <p>“3d. All the rest and residue of my estate of every kind and description, real and personal and mixed, notes, bonds, money and accounts I give, devise and bequeath to my said wife, Frances A., absolutely and forever.</p> <p>“4th. I direct that there be no inventory or appraisement of my estate made, and expressly relieve my executrix from the necessity of making annual or any other returns to the Court of Ordinary or to any other Court.</p> <p>“5th. I appoint my said wife, Frances A. Roath, executrix of this my last will and testament.”</p> <p>Sallie B. Crocker married E. W. Haley, on October 10th, 1868. Mrs. Roath built a house on lot number forty-four during the year 1868. She spent in improvements over $2,400 00, which amount she realized from the sale of railroad stock. After she completed the house she married the defendant. She died on June 10th, 1871.</p> <p>The plaintiffs sought to show by the acts and declarations *of the testator that at the time of the execution of his will he considered lots numbers forty — four and forty-five as together constituting one lot, to-wit, the lot whereon he then resided; that he treated them as one lot, and that in all the plans for the future, in connection with his house, he was governed by this idea. All of this testimony was objected to, the objection was overruled, and the defendant excepted.</p> <p>In answer to 9th interrogatory propounded to Sallie B. Haley, she stated that Mrs. Roath “remarked to her, some time after she had built the house on Greene street, that she was a fool for building it; that if she had her way she would tear it down, if she could only get her money back. She also said that she had been to see her lawyers, Barnes & Cumming, and they told her * * * She offered, if we would do this, to give up the house on Ellis street, but this was never done.”</p> <p>The defendant objected to the last two sentences of this answer. The objection was overruled and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiffs. Whereupon, the defendant moved for a new trial upon the following, among -other grounds:</p> <p>1st. Because the verdict is contrary to the law and the evidence.</p> <p>2d. Because the Court overruled the objection of defendant to the admissibility of other parol testimony than what was 'necessary to ascertain and fix the lot in dispute, the objection being that no other parol testimony was admissible in this case to aid in the construction of the will.</p> <p>3d. Because the Court erred in overruling the objection of defendant to the admissibility of the following testimony, contained in the answers of Mrs. Haley to 8th direct interrogatory addressed to her, to-wit:</p> <p>“She also said she had been to see her lawyers, Barnes & Cumming, and they told her * * * She offered, if we would do this, to give up the house on Ellis street, but this was never done;” and allowed said testimony to go to the jury, *the ground of objection being that said testimony was irrelevant, and improper to be considered by the jury.</p> <p>The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.</p>

<p>Charge of Court. Jurisdiction. Judgment. Before Judge Parrott. Bartow Superior Court. September Term, 1869.</p> <p>For the.facts of this case, see the decision.</p>

Usury. Pleading. Before Judge Core. Bibb Superior Court. April Term, 1872. *West Harris brought complaint against Siesel & Brother, upon two promissory notes, dated December 27th, 1867, payable to plaintiff or bearer, each for the sum of $450 00, one due April 15th, 1868, and the other October 15th, 1868. On the last note there were two credits, bearing date Pecember 28th, 1867, one for $216 77, the other for $62 50.