Volume 49 — Georgia Reports

<p>Injunction. Bond for title.</p> <p>For the facts of this case, see the decision.</p>

<p>1. There was no error in admitting the record of the indictment and conviction for the opprobrious words. It went to show a motive and to explain the threats and words of the prisoner. (R.)</p> <p>2. The evidence in this case is of such a character that this Court cannot say that the presiding Judge committed an error in refusing a new trial. (R.)</p>

Prescription. Land. Municipal corporation. Streets. Joint tenants. Charge of Court. Presumptions.

New trial. Interrogatories. Statute of limitations. Witness. William B. Marshall brought complaint against George Hargraves, administrator, and Mary E. Shorter, administratrix, upon the estate of James H. Shorter, deceased, on an open account for $100 00, for one fifty-saw gin. The declaration was filed in office on March 1st, 1869.

<p>Prima fade, an Ordinary of a comity has no right to settle a debt due the county by a defaulting public officer, by taking land in payment of the debt, as the property of the county, and in a suit in the name of the Ordinary to recover the land, the burden is upon the Ordinary to show that it was necessary to take the land to save the debt, or that the land was taken for some specific public purpose for which the county authorities may buy land for the county. But if this be shown, as that it was necessary to save the debt, or the land was bought for such specific purpose, and under such circumstances as would give the Ordinary the right to buy, that makes out a case where the Ordinary may sustain the action, other proper title being shown.</p>

New trial. Homestead. Sarah E. Ward, wife of Andrew J. Ward, petitioned the Ordinary of Eandolph county to have a homestead set apart for herself and her minor children, in lots of land numbers eleven, twelve and thirteen, in the ninth district of said county. Said tract contained, according to the return of the county surveyor, six hundred and seven and one-half acres.

<p>Where the evidence showed that the note sued on was turned over to the plaintiff, as guardian for the children of Hickey, and that they were all of age except the youngest, it was lawful for the plaintiffs to have a judgment against the defendants without proof of the payment of taxes.</p>

Injunction. Mortgage. Usury. William A. Gatewood filed his bill against the City Bank of Macon, Benjamin F. Adams, and James L. Wilson, sheriff of Putnam county, making the following case: Adams was indebted to complainant in large sums of money, and complainant was also liable in divers other large amounts as indorser, security and guarantor for him.

Statute of limitations. Judgment. Execution. Bond for titles. On November 22d, 1858, Akin recovered a judgment in Cass Superior Court against the Cherokee Baptist College, as principal, and John H. Rice, as indorser, for $1,000 00 principal, besides interests and costs.

<p>Injunction. Equity. Libel.</p> <p>The Singér Manufacturing Company, a corporation created under the laws of New York, transacting business in the city of Atlanta, by an agent, filed its bill against the Domestic Sewing Machine Company, a corporation created under the laws of Rhode Island, doing business in the city of Atlanta, by an agent, R. J. Wiles, the agent of said company, Alexander S. Abrams, Henry W. Grady and R. A. Alston, co-partners using the firm name of the Herald Publishing Company, and W. A. Hemphill and E. Y. Clark, co-partners, under the firm name of W. A. Hemphill & Company, proprietors of the Atlanta Constitution, a newspaper published in said city of Atlanta, making the following case:</p> <p>Complainant is engaged in the manufacture and sale of sewing machines. On October 14th, 1872, the Georgia State Agricultural Society held its annual fair in the county of Eulton, and invited all persons interested in sewing machines to exhibit them at said fair, under the regulations established by said society, and promised to award a diploma to the manufacturer and proprietor of the best family machine, a diploma to the manufacturer and proprietor of the best manufacturing machine, and a diploma to the manufacturer and proprietor of the machine with the best attachments, said diplomas to be determined and awarded by a committee appointed by said society to inspect sewing machines and to award premiums. Complainant competed foy each of the aforesaid diplomas. Many other machines were also presented, and amongst them the one manufactured and owned by the Domestic Sewing Machine Company. Said committee reported the machine of complainant to be the best family machine and the best manufacturing machine, and diplomas were awarded accordingly. Notwithstanding these facts the Domestic Sewing Machine Company has published in the Atlanta Herald, a newspaper owned and controlled by the Herald Publishing Company, and in the Atlanta Constitution, a newspaper owned and controlled by ~W. A. Hemphill & Company, that the said committee decided and reported that “the Domestic Machine, as a family machine, is the best.” Complainant, for the purpose of denying such statement, published the report of the committee as it was rendered. The defendants then published that the report of the committre as set forth by complainant was untrue, and that said committee had reported that the Domestic Machine, as a family machine, was the best. The damages to complainant resulting from the aforesaid publication are inestimable. Prayer, that the writ of injunction may issue, restraining defendants from saying by publication or otherwise that said society did not' award the first premiums to complainant for the best family machine, and for the best manufacturing machine. That the writ of subpoena may issue.</p> <p>The defendants answered the bill, but their defenses are unnecessary to an understanding of the decision of the Court, and are therefore omitted.</p> <p>The injunction was denied, and complainant excepted.</p>

<p>Homestead. Rule against sheriff.</p> <p>For the facts of this case, see the decision.</p>

New trial. Verdict. Practice in the Supreme Court. This case arose upon a bill filed by William H. Calhoun against Daniel F. Gunn, setting up that Calhoun having been in possession of certain lands under bond for titles from one Griffin, the same were sold at sheriff’s sale in 1856, under an execution in favor of Griffin, for the purchase money, Griffin having filed a deed ; that an agreement was made before the sale between Calhoun and Gunn that Gunn should buy the land for…

Equity. Injunction. Lee filed his bill against Clark, as the executor of William D. Conyers, deceased, containing substantially the following allegations: Complainant and one Turner Horton each owned tracts of land in Newton county. They agreed to exchange.

Practice. This case was called for trial at about two o’clock p. M., on the first day of Court. The plaintiff not being present, his counsel called the Court’s attention to another case which preceded it upon the docket, and which was ready for trial. The Court glanced over the docket, but could not find the case referred to, though it was in fact there, and required the plaintiff’s counsel to announce.

<p>Where a plaintiff sues for the balance due on notes for the purchase money of land, and the jury, under the Belief Act of 1868, render a verdict returning the land to the plaintiff, requiring him to pay to the defendants $3,553 27, upon which a judgment was duly entered, and the defendants, having obtained a supersedeas, carried the case to the Supreme Court, but withdrew the writ of error on the calling of the case in that tribunal:</p> <p>Held, That on a bill filed by the plaintiff stating the aforesaid facts, and that the defendants had remained in possession since the rendition of said judgment, receiving large rents and profits ; that the plaintiff had been compelled to pay a large amount as taxes upon the property to prevent its sale ; that the defendants had procured an execution to be issued on said judgment and levied on said land ; that plaintiff was ready to pay the amount required by said judgment after deducting the rents and profits, and taxes expended as aforesaid, it was noterror in the Chancellor to enjoin said execution, and to appoint a receiver to take charge of said land until the final hearing of the case.</p>

Administrator’s sale. Evidence. D. M. Stripling, F. M. Stripling, Mary J. Shepard, formerly Mary J. Stripling, and William Stripling, Julia Stripling and John M. Stripling, minors, who sue by their next friend, H. T. Ball, all children of Moses Stripling, deceased, filed their bill against Benjamin Stripling, administrator of Thomas Stripling, deceased, Robert Stripling, Sarah A. E. Gray, formerly Sarah A. E. Sandefer, Daniel F. Gunn and Wiley Leverett, making the following…

Ejectment. New trial. Evidence. Ambiguity. Warren J. Clark brought complaint against Eli J. Hulsey and William G. Mitchell for part of lot number twenty-eight, in the sixteenth district of DeKalb county, it being on the northeast corner of said lot, and on the northeast side of South river, containing three and a half acres, more or less. The defendants pleaded the general issue and the statute of limitations.

Criminal law. Continuance. New trial. Jury. Arraignment. Practice in the Superior Court. Mitchell Cogswell was placed upon trial for the offense of murder, alleged to have been committed upon the person of one Derry Womack, on January 9th, 1872.

<p>State. Constitutional law. Comity. Railroads. Amendment.</p> <p>For the facts of this case, see the decision.</p>

Sheriff. Contempt. Attachment. William D. Franklin petitioned the Superior Court of Floyd county for a rule nisi against Thomas Y. Smith, calling upon him to show cause why he should not be required to pay over the money due upon an execution in favor of petitioner against Thomas S. Burney, placed in his hands for collection.

Mandamus. District Court. Officers. Tax. Interest. These two cases, involving the same questions, were argued and decided together.

<p>1. When, on the trial of a claim case, it appears that the defendant, after the date of the judgment, had conveyed the land to the claimant, and Jackson was introduced to prove that some years previous to the date of the judgment he had bought the land from defendant and paid the consideration money, but had taken no deed or other writing, and that the deed made to the claimant by defendant was made at his (the witness’) request; that he had sold the land to the claimant and received the consideration, and the defendant had, at his request, made the deed to the claimant, in pursuance of the purchase and payment several years before the judgment:</p> <p>Held, That Jackson was a competent witness, under the Evidence Act of 1866, notwithstanding the death of defendant, the maker of the deed.</p> <p>2. The testimony was not illegal under the rule that express trusts must be in writing.</p> <p>3. When the Judge of the Superior Court has granted a new trial, on the ground that the verdict is contrary to the evidence, this Court will not interfere to reverse his judgment, even though there be some evidence to sustain the verdict, it not appearing that the Judge has abused</p> <p>' the discretion granted him by law in such cases.</p>

Constitutional law. Relief Act of 1870. Daniel R. Mitchell brought complaint against Cothrans & Elliott on a promissory note, dated February 8th, 1861, due one day after the date thereof, for $8,000 00, besides interest. Various pleas were filed by the defendants unnecessary to be here set forth. The whole case was submitted to the jury, including the question whether the taxes oii the debt had been paid, as required by the provisions of the Act of October 13, 1870.

Mortgage. Sale. Conditional deed. Debtor and creditor. Injunction. Enoch Steadman filed his bill against I).

<p>In a parol contract by an agent for the purchase of ninety-two bales of cotton then packed and pointed out, at a stated price per pound, estimating the bales at five hundred pounds each, subject to correction, on weighing, it was also verbally agreed that the seller should haul the cotton to a certain place for the buyer; that if it was burned it should be the loss of the buyer; that the agent need not pay the money, but hold it for the buyer to check on as he might want it, and no act was done by either party as to the payment or delivery, and the seller afterwards refused to deliver the cotton, and the agent returned the money to his principal:</p> <p>Held, That this did not make a case of actual receipt by the buyer, or of payment, as required by the 17th section of the statute of frauds, so as to render the seller liable in an action of trover for the cotton. No merely verbal stipulations in the contract, and as part of the contract, are sufficient to take it out of the statute.</p>

<p>Injunction. Corporations. Charter. Statute of limitations. Construction of statutes. Laws. Repeal. Contracts.</p> <p>For the facts of this case, see the décision.</p>

Equity. Damages. Venue. On the 2d November, 1860, Cochran sold a plantation to Grier, giving bond for titles and taking two notes from Grier, each for $10,625 00, one due January 1, 1861, the other January 1, 1862. Cochran owed Andrews about $3,500 00 unpaid purchase money for the land, and only had Andrews’ bond for titles. There were judgments for a considerable amount against Cochran when he sold to Grier.

<p>Ejectment. Evidence. Ancient deed. Deeds. Registry. Prescription. Charge of Court. Admissions.</p> <p>Eor the facts of this case, seethe decision.</p>

Amendment. Continuance. Mortgage. -John T. Henderson instituted proceedings against P. B. & John F. Jones to foreclose a mortgage executed by them to secure the payment of two promissory notes, each dated February 1st, 1867, for the sum of $5,333 33, one due January 1st, 1868, and the other January 1st, 1869. The petition set forth that the note last aforesaid was unpaid, and prayed that the usual rule nisi might issue. The rule nisi was in the usual form.

<p>County Courts. Certiorari. Statutes. Practice in the Supreme Court.</p> <p>"When this case was called the question was submitted to the Court whether the Solicitor General of the Albany Circuit or the Solicitor of the County Court of the county of Dougherty was entitled to represent the same. The case was tried before the County Court and the attempt made to carry it by eertiorari to the Superior Court. The Judge refused to sanction the petition for eertiorari, and petitioner excepted.</p> <p>The Court held that the Solicitor General was entitled to represent the case.</p> <p>For the facts, see the decision.</p>

Scaling Ordinance. Bond for titles. Evidence. William D. Williams brought ejectment against Littleton Phipps for the recovery of lot number one hundred and twenty-eight, in the eighth district of Baker county. Phipps filed his bill to enjoin said action.

New trial. Discretion. Bond. Municipal corporation. Auditor.

<p>The circumstances connected with the perpetration of the offense charged, as testified to by the victim of the rape — the degree of resistance on her part — the fact that no alarm or outcry was made, the place being where it could have been easily heard — no marks of violence having been exhibited, and the injury being concealed for several days after the opportunity of making complaint, and no proof of any complaint ever having been made except by the party said to be injured, together with the fact that no legal step was taken to punish the outrage until pregnancy was discovered, make this a case where the crime charged was not sufficiently proven under the law to justify a verdict of guilty.</p>

<p>Quo warranto. Election. Officers. Ordinary.</p> <p>For the facts of this case, see the decision.</p>

Claim. Damages. An execution in favor of Richard H. Hutchins against Boaz Kitchens and John S. Humphries, for the sum of {$1,311 13, besides interest and costs, based upon a judgment rendered at the October term, 1871, of Sumter Superior Court, was levied upon eight hundred acres of land in the county of Sumter, as the property of Kitchens. The land was claimed by said Kitchens as trustee for his wife and five minor children.

Constitutional law. Tax. Injunction. The tax collector of Richmond county, having assessed a license tax of $250,00 upon each of the defendants in error, as wholesale dealers in malt liquors, under section 2, paragraph 9, of the Tax Act, approved 20th of February, 1873, and executions having been issued therefor upon their failure to pay, they filed their bill to enjoin the levying and collecting of said executions — maintaining that they were not wholesale dealers, in the…

Relief Act of 1870. Constitutional law. The two cases above stated were submitted without argument. Sufficient facts are stated in the decision to render it intelligible.

<p>Injunction. Franchise. Corporations. Conditions. Street railroads.</p> <p>For the facts of this case, see the decision.</p>

Principal and agent. Factors. This was an action on the case brought by Humber against Reid, alleging that Humber, in the year 1867, delivered to Reid, at Eatonton, as the agent of Sims & Company, factors and commission merchants in Savannah, a lot of cotton, to be consigned to said factors with instructions not to sell said cotton without further orders from Humber; that Reid took possession of said cotton, sent it to said factors, and negligently failed to communicate said…

Criminal law. Murder. Mistrial. Continuance. Indictment. Grand jury. Jury. Challenge. Reasonable doubt. Drunkenness. Malice. Polling jury. New trial. Newly discovered evidence. Cumulative evidence. The defendant pleaded in abatement to the indictment, upon the ground that it was found by only ten of the original grand jurors who were drawn, the panel having been filled with talesmen summoned for that purpose. The plea was overruled, and the defendant excepted.

<p>And now comes the defendant, by his attorneys at law, and moves the Court to set 'aside the verdict rendered in the above cause, and to grant him a new trial upon the following grounds, of which he knew nothing until about September 20th, 1873, and which came to his knowledge on or about that time, to-wit:</p> <p>1st. Because he has learned that he can prove by one R. L. Turner, a citizen residing in the county of Fulton, in said State, that he was present at the house known as the “ carriage factory” on the night of the homicide, saw the whole difficulty, and knows that the defendant shot Phillips in defense of his own life.</p> <p>2d. Because he has learned since the trial that the jurors put upon him on said trial were selected, chosen and impaneled under a law of the State of Georgia, enacted and passed for the purpose of excluding from service as jurors a certain class of citizens, on account of their previous condition of race" and color, and that the purpose of said law was political, so as to deprive persons belonging to the republican party from an equal participation in the rights and privileges of other citizens, and equality before the Courts of said State of Georgia, and that the said proceedings and law are in violation of the fourteenth amendment of the Constitution of the United States, and resulted m manifest wrong- and injury to this defendant.</p> <p>3d. Because James O. Harris, the sheriff of the county of Fulton, in selecting said panel of jurors which was put upon said defendant, confined himself to a certain class of white persons, being only one thousand in number, when there were citizens of said county, amounting to four thousand seven hundred, equally liable and competent, under the law, to do jury duty, and that the same were drawn, selected and summoned by the sheriff aforesaid, to exclude from the jury and the equal participation before the Courts of the class of colored persons residing in said county, and to make up the jury in said case from the selected class, and not so as to allow equality before the Courts to all the citizens of the United States.</p> <p>4th. Because the only qualification of a juror, under the Constitution of the State of Georgia, is uprightness and intelligence, when the same should be impartiality, and by which means the defendant was denied all the tests usual in the Courts of justice, to test the fairness and impartiality of jurors selected to try him.</p> <p>5th. Because the defendant was insane at the time of the commission of said alleged offense, at his trial therefor, and is now, which facts were not known, as developed by the testimony of Dr. Charles Pinckney, in an affidavit hereto annexed, until since said trial.</p> <p>Said motion was supported by the following affidavits:</p> <p>1st. Affidavit of James G. Maull, to the effect that he was a member of the Convention which framed the present Constitution of the State of Georgia; that he represented the county of Muscogee in the first Legislature assembled under the provisions of said Constitution; that it is his belief and understanding that the clause of said Constitution organizing a jury system, known as paragraph 2, section 13, Article V-, was inserted therein for the purpose of excluding colored persons, as a class, from the jury box, and by operation of law to prevent said class from serving on juries; that the Act passed by the General Assembly for the purpose of carrying into effect the aforesaid provision, had also in view, in his opinion, the exclusion from the jury box of the colored people as a class.</p> <p>2d. Affidavit of James O. Harris, to the effect that he was the sheriff of Fulton county, and was present when the jury box was made up by the commissioners appointed for that purpose; that on the tax books there were two lists of tax payers, one of white and the other of colored persons, and the commissioners made up the jury box exclusively from the white list, without examining the list of colored persons at all; that all the panels put upon the defendant at his trial were taken from the jury box made up as aforesaid.</p> <p>3d. Affidavit of Charles Pinckney, to the effect that he is a practicing physician; that he saw defendant for the first time on the morning of the day of the killing, and believed him insane, and so expressed himself to F. B. Palmer at the time; that he has been defendant’s physician ever since the homicide, and has all of this period believed, and does now believe, that defendant is at times an insane man, and that he was at the time of the killing in a condition of mania a potu; that deponent was a witness at the trial, and would have testified to these facts had the questions been propounded to him, but he did not feel called upon, on his own motion, so to do.</p> <p>4th. Affidavit of F. B. Palmer, in reference to the remark made to him by Dr. Charles Pinckney, as to defendant’s suffering from mania a potu.</p> <p>■ 5th. Certificate of A. E. Buck, clerk of the Circuit Court of the United States for the Northern District of Georgia, to the effect that the jurors selected from Fulton county for said Circuit Court consist of seventy, of whom forty ai’e white and thirty are colored.</p> <p>6th. Affidavit of defendant, to the effect that the facts set forth in the said motion for a new trial are true, to the best of his knowledge and belief, and have come to his knowledge since his trial, to-wit: about September 20th, 1873.</p> <p>The State responded to said motion as follows:</p> <p>1st. That at the October term, 1872, of this Court, a motion for a new trial in this case was made and overruled, which decision was affirmed at the July term, 1873, of the Supreme Court, and a second motion cannot be made, under the laws of this State.</p> <p>2d. That substantially the same grounds were made and acted on in the former motion, and the defendant is, therefore, precluded from another hearing on said grounds.</p> <p>3d. That the Constitution of the State of Georgia, and the laws passed under it, were made for the purpose of securing “ intelligent and upright persons ” as jurors, and not for any political purpose, or for the purpose of excluding colored persons, as members of the republican party, from the juries of this State.</p> <p>4th. That the insanity of the defendant was made one of the grounds of the former motion, and was passed upon by the Court.</p> <p>5th. That neither of the defendant’s attorneys make oath that they were not fully informed, at the time of making the former motion, of all the grounds set forth in the last motion.</p> <p>6th. That the exclusion of colored persons from the jury cannot be complained of by the defendant, as he is a white man, and was tried by white men.</p> <p>In support of this answer were attached the following affidavits :</p> <p>1st. Affidavit of John E. Wallace, L. B. Langford, W. E. Spruill, and.Daniel Pitman,^Ordinary of Fulton county, to the effect that they were four of the five commissioners who selected the jurors for said county from the book of the receiver of tax returns, on or about the first Monday in June, 1872; that they made said selection and revision of said jury box impartially, without regard to race, color or previous condition, and placed upon the lists- of jurors only such .persons as they considered upright, intelligent and competent under the law; that the colored persons on said tax digest were not excluded from the jury box, as a class, at said selection; that uprightness and intelligence alone were looked to by the commissioners, and many white persons were left off who could not read and write, not considering them, for those and other reasons, intelligent; that others were left off as not considered upright. The names of the colored persons were discussed and omitted, some for want of sufficient intelligence, and others for want of uprightness; that the names of some of the colored persons were left off because exempt as ministers of the gospel and doctors; that the names of many white persons were omitted for the same reasons, and others because firemen; that no persons of color were placed on said list because the commissioners knew of none whom they considered competent except íayo or three, and they were exempt.</p> <p>2d. Affidavit of H. ~V. M. Miller to the effect that he was a member of the Constitutional Convention of 1888, and that the section of the Constitution then adopted which reads as follows: “ The General Assembly shall provide by law for the selection of upright and intelligent persons to serve as jnrors,” AAras reported by a committee, of Avhich Amos T. Akerman was the chairman, and was adopted without debate or objection; that deponent did not vote for it for the purpose of excluding colored persons as a class from the jury box, but with the object in view of shutting out the ignorant and the vicious of all races; that members of the republican party were not excluded from serving as jurors as a class or as individuals.</p> <p>3d. Statement with no signature attached, that Amos T. Akerman, chairman of the committee which reported the jury clause referred to in the foregoing affidavit, was late Attorney General of the United States of America under the administration of President Grant.</p> <p>4th. Affidavits of John B. Langley, C. R. Pennick, Josh. Tye and A. P; Cassin, to ■ the effect that the defendant, about the time of the homicide, before and after, conversed and acted as a sane man.</p> <p>5th. Affidavit of L. T. Downs to the effect that up to the time of the homicide, he had known the defendant four or five years; that about fifteen minutes before the killing, defendant was in the deponent’s grocery talking to McAlister and Cooper; that defendant was under the influence of liquor to some extent, but to all appearances was in his right mind, and talked as sensibly as he ever did ; that there was nothing about the defendant that in the least indicated craziness or absence of his right mind; that the deponent saw him some two or three days before this walking on the sidewalk without his shoes on; that he then thought he looked as if he was crazy.</p> <p>The motion for a new trial was overruled. A bill of exceptions, based on said ruling, was presented to the presiding Judge, who refused to sign and certify the same. Whereupon, a mandamus nisi from the Supreme Court was prayed for. This was refused in the decision which follows :</p>

<p>New trial. Bill of exceptions. Mandamus. Practice in the Supreme Court. Before the Supreme Court.</p>

Scaling Ordinance. Pleading. Practice in the Superior Court. Rawson brought complaint against Cherry, as security, upon the following note: “$2,336 29.

<p>1. Where an execution has been levied upon the property of the defendant, it was error in the Court to dismiss the levy on the ground that no affidavit had been filed as to the payment of taxes as required by the Relief Act of October 13th, 1870.</p> <p>2. According to the provisions of the 3264th section of the Code, in order to traverse the entry of service by the sheriff, the defendant should Bhow that he had done so at the first term after notice of such entry is had by him, or should show that he had no notice of the pendency of the suit against him prior to the rendition of the judgment.</p>

<p>1. The Legislature, under the constitutional requisition to provide a thorough system of general education, may grant the power to county authorities or municipal corporations to levy a tax in aid of such system within their several territorial limits.</p> <p>2. A board of education may be appointed by the Legislature within such limits, with power and authority to use and appropriate the school funds thus raised in connection with what may be derived from the general fund provided by the State, and to superintend and control the schools that may thereby be established, the same being under such supervision of the State School Commissioner as by law may be provided. The fact that such board may be created a body corporate in the Act appointing it, does not affect its right to exercise the authority given to it as a board of education.</p> <p>3. The 18th section of the Act of February 22, 1873, entitled “An Act to amend and revise the several Acts granting corporate authority to the city of Americus, and to establish and consolidate the same, and for other purposes therein named,” is inconsistent with the third section of the Act of February 13th, 1873, entitled “An Act to establish a permanent board of education for the city of Americus, and to incorporate the same, and for other purposes,” in so far as the latter Act provides for levying a tax, and to that extent said third section is repealed.</p> <p>4. All of said Act, except that part thereof creating the local Board of Education, and giving it authority to establish, and regulate, and superintend, the public schools in said city, and to receive the proportionate part of the general State fund coming to said schools, is void, because said other portions of said Act refer to a subject matter different, not only from what is contained in the title, but from the other part of the same Act, to-wit: it grants power to the Mayor and City Council to levy a tax and issue bonds, and exempts the city from county taxation for public schools, and is obnoxious to that extent to that provision of the Constitution which says, “nor shall any Act or Ordinance pass which refers to more than one subject matter, or contains matter different from what it contains in the title thereof.”</p> <p>6. The Board of Education created by said Act of 13th of February, 1873, has no authority of law to require the Mayor and City Council of Americus to levy and collect a tax as is provided by said Act. Nor can said Mayor and Council levy and collect a tax as a public school fund, except by authority of the 18th section of the Act of 22d of February, 1873, which tax, if collected, may, by virtue of said section, be used at the discretion of the Mayor and City Council for the purpose for which it was levied.</p>

<p>Covenant. Verdict. Judgment. Presumption. Evidence. Practice in the Supreme Court.</p> <p>For the facts of this case, see the decision.</p>

Injunction. Administrators and executors. Legacy. Judgment. Nancy Dorsey filed her bill against Irby D. Simmons, and Robert S. Connell, sheriff’, making substantially the following case: She is the daughter of Polly Johnson, who was daughter of Charles Simmons, late of Oglethorpe county, who departed this life in the yeár 1847, testate, bequeathing all of his property to his wife, and at her death to be equally divided among his five children.

<p>1. Under the provisions of the Constitution, it was error in the Superior Court to limit the defendant’s counsel to a definite time in his argument before the jury, over his protest that he could not do justice to his client’s case within the prescribed time.</p> <p>2. If the evidence contained in the record had been so decidedly strong as to have required the verdict rendered by the jury, it might not have been interfered with for the error complained of, but the evidence is conflicting as to whether the stabbing was done in self-defense ; and inasmuch as the defendant was prevented by the Court from having the privilege and benefit of counsel in his defense, as contemplated by the Constitution, the judgment of the Court below is reversed.</p>

<p>Judicial sale. Equity. Parties.</p> <p>James A. Burke, George H. Cameron, Henry L. Benning and Edmund H. Worrill filed their bill against Francis G. Wilkins, Francis G. Wilkins, as trustee for Parmela F. Wilkins and Luc}r G. Wilkins, and Parmela F. Wilkins and Lucy G. Wilkins, making, substantially, the following case:</p> <p>On June 26th, 1868, a tax execution for’ $128 00, State and county taxes, issued against James F. Winter, which was, on July 6th, 1868, levied on lot number one hundred and ninety-six, in the city of Columbus, as the property of said Winter. On September 7th, 1869, said lot was sold under said levy to John W. Duer, as Ordinary of said county, for $143 00, and a deed was made accordingly on the succeeding day. The property sold was worth $3,000 00. On June 30th, 1868, an execution issued against said Winter for $322 50, the tax due to the Mayor and Council of Columbus, which was levied on the said lot on the third of the ensuing September. The attestation clause to said fi. fa. was in the name of William Mills, Mayor, whilst said Mills was not the Mayor at the date it issued, or when it was levied. It was, therefore, null and void. Before and at the time of the aforesaid sale, there was an agreement between said Ordinary and said Mayor and Council, that the former should buy said property 'and hold the same until the rents and profits collected by him should prove sufficient to pay said taxes.</p> <p>One Robert Matthews and the complainants, Burke and Cameron, sued out an attachment against said Winter, returnable to the March term, 1868, of the County Court of said county, which was levied on said lot. On June 28th, 1870, one F. M. Brockett, who had been made party plaintiff for the use of said Matthews, Burke & Cameron, recovered a judgment in said suit for $2,350 40, principal, and $449 29, interest. On March 3d, 1871, execution issued from this judgment, which was levied on the succeeding day on said lot. It was soon after agreed between said Ordinary and Henry L. Benning, attorney for the plaintiff in execution, that the property should be sold under said levy, that no claim should be interposed by the former, that the purchaser should pay the aforesaid taxes, and that said Ordinary should make to him a quit claim deed. On May 2d, 1871, said property was sold under said levy, and said, complainants, Worrill and Benning, as attorneys for the plaintiff' in execution, acting under said agreement, bid off the same at $1,400 00 for the benefit of said plaintiff. On May 26th, 1871, a deed was made by the sheriff, in accordance with said sale, and though made to said complainants, yet, in fact, it was for the benefit of said plaintiff. After said last sale, complainants permitted said Ordinary to remain in possession of said lot, supposing there might be some small portion of the taxes due, and being willing that it should be paid out of the rents, but they have since ascertained that no balance was, in fact, due, and on the contrary, that he had collected some $1,000 00 more than said taxes amounted to. On December 21st, 1871, said Duer*, as Ordinary, conveyed said lot to the defendant, Francis G. Wilkins, the county treasurer of said county, as trustee for the defendants, Parmela F. and Lucy G. Wilkins, with power of sale in said Francis G. No consideration was paid for said deed. Said Francis G. being well aware of the terms and conditions on which said Ordinary held said lot, contracted to hold said property subject-to the same. He had full notice of the sale to Benning arid Worrill, and of the agreement between said purchasers and said Ordinary.</p> <p>Brockett never had any interest in said execution, but was a mere naked trustee. Matthews has sold his interest therein to the defendant, Worrill. The defendant, Francis G., is insolvent.</p> <p>Prayer, that the defendant, Francis G., may be compelled to convey said lot to the complainants, and to deliver to them possession of the same; that he may be compelled to account for the rents thereof; that a receiver may be appointed to collect the rents and hold the same subject to the order of the Court; that the writ of subpoena may issue.</p> <p>The answer of the defendants is unnecessary to an understanding of the decision.</p> <p>The jury found “the issues in this case for the plaintiffs.” The complainants moved for a decree as follows:</p> <p>“That the plaintiffs do recover of the defendants the land mentioned in said bill, and that a writ of assistance do issue to put the plaintiffs in possession of said land.”</p> <p>The Court refused to allow the same, and complainants excepted.</p> <p>The Court, among other things not excepted to by complainants, decreed as follows:</p> <p>“That the sale, under the execution in favor of Brockett for use, etc., against James F. Winter, of said land mentioned, by the sheriff to Worrill and Benning, be set aside, and the deed made by the sheriff to said Worrill and Benning, under said sale, to said land, be delivered up and canceled; and that the sheriff do proceed with said writ of execution to seize and sell said lot of land according to the rules regulating sheriff’s sales; that upon the sale thereof and the payment of the purchase money, he do make to the purchaser thereof good and sufficient titles in fee simple, and do put said purchaser in possession of the premises; that on the first day of the next term of this Court, he then and there make a full return of his proceedings in the premises.”</p> <p>To this portion of the decree the complainants excepted. The remainder, to which no exception was taken, set aside the sale by said Duer, as Ordinary, to said Wilkins, as trustee, and directed that the deed be delivered up to be canceled.</p> <p>The complainants assign error upon the aforesaid grounds of exception.</p>

<p>1. Where a rule absolute is rendered against a sheriff for his failure to make the money on an execution .placed in his hands for collection, the defendants in execution cannot exceptto the judgmentof the Court.</p> <p>2. Should the sheriff fail to except, and thereafter attempt to enforce the execution against the defendants for his indemnity, they will then have the opportunity to protect themselves.</p>

Attachment. Claim. Practice in the Supreme Court. On September 12th, 1871, Higginbotham sued out an attachment against one George W. Lay as principal, and Charles Lay as security, for $900 00, besides interest, upon the ground that they resided out of the State. The attachment was levied upon certain land as the property of the defendants. Judgment was obtained, and the execution issuing therefrom was levied upon the same land as belonging to Charles Lay.

<p>Constitutional law. Award.</p> <p>For the facts of this case, see the decision. .</p>

<p>1. Where one of two obligees in a bond for titles dies, the action for a breach of the bond, for not executing a deed as provided in the bond, may be brought in the name of the survivor.</p> <p>2. If the obligor in the bond, after its execution, sell the land to a third person, giving such person a bond for titles, puts him in possession, and receives the whole of the purchase money, it is a breach of the first bond, and no demand for a deed is necessary before action is brought.</p> <p>3. Although it may be necessary for the plaintiff to aver in his pleadings the fact that he is the survivor, as well as the facts as to the second sale, in order to be entitled to prove them as a matter of right, yet if the testimony be admitted without objection, and no motion is made to withdraw it from the jury, he is entitled to the benefit of such testimony on a motion for a non-suit.</p>

<p>1. Where the landlord occupied a room in the same building, immediately over the store of the tenant, he is presumed to have known the condition of the roof better than the tenant, and notice by the tenant to the landlord to repair such roof is unnecessary to entitle the tenant to recoup the damages sustained by leakage as against a distress warrant for rent.</p> <p>2. The landlord is not liable to the tenant for damages to his goods, resulting from unforeseen and extraordinary causes, unless so stipulated in the contract at the time of renting.</p>

Administrator’s Sale. Vendor’s lien. Wilkins S. Ivey, as administrator own testamento annexo, upon the estate of Mitchell Connor, deceased, filed his bill against the heirs and creditors, for the purpose of marshaling the assets. Upon this bill an issue ivas formed, as to whether a certain tract of land, sold by the complainant, was subject to a vendor’s lien, in favor of Thomas J. and A. J. Stallings, as executors of William Stallings, deceased.

<p>Equity. Partition. Tenants in common. Multiplicity of suits.</p> <p>For the facts of this case, see the decision.</p>

<p>1. Where, during the session of the Court, leave of absence for the term is granted to an attorney, and in a short time afterwards the attorney being present in Court, it was not error for the Judge, in order to prevent the continuance of a case in which such attorney was the leading counsel, to call the case for trial out of the regular order, unless it was made to appear that the attorney or his client was less prepared for trial on account of such leave of absence having been granted, or than they would be if the case were not called out of its order.</p> <p>2. A defendant in execution who lodged with the levying sheriff, on the 15th of September, 1871, an affidavit that the legal taxes on the debt had not been paid, which affidavit was made for the purpose of arresting the sale, and did arrest the sale, and was prosecuted by the defendant to a trial as affidavits of illegality are tried, was liable, on the trial thereof, to the penalties provided bylaw for the filing of affidavits of illegality for delay only, provided the jury believed it was interposed for that purpose.</p> <p>3. On the trial of such case, the only legal issue which, under any valid law, could have been before the jury, was whether such affidavit was filed for delay only; and plaintiffs having attached to the execution an affidavit of the payment of taxes before the defendant filed his affidavit add proved the same on the trial, and the defendant offered no evidence, “We, the jury, find for the plaintiffs ten per cent, damages,” was a legal verdict, and one that covered the whole issue.</p> <p>4. Where, by agreement, an order was passed allowing either party to except to a decision to be rendered at Chambers within ten days, and the bill of exceptions was not certified within the time specified, but within thirty days, these facts constitute no ground to dismiss the writ of error, as the consent order did not deprive this Court of jurisdiction, whatever effect it may have as between the parties. (R.) See end of Report.</p>

<p>1. Where a verdict was rendered in the County Court prior to its abolishment, and an appeal entered after, but within the four days allowed by law, the judgment entered against the security on appeal on the second trial, was valid.</p> <p>2. The acceptance of the appeal bond by the County Judge was a ministerial and not a judicial act; It was nothing more than the transmission of the unfinished business of the County Court to the Superior Court.</p>

Administrators and executors. Distribution. Execution. Levy. This case was tried before Judge Davis, but the motion for a new trial was heard by Judge Rice, lie having in the meantime, come upon the bench.

<p>Ejectment. Forcible entry and detainer. Practice. Verdict. Jury. Certiorari.</p> <p>For the facts of this case, see the decision.</p>

<p>New trial.</p> <p>Samuel Harris brought trespass against Edward C. Murphy and Geoi’ge W. Anderson, alleging that the defendants had unlawfully arrested and imprisoned him in the calaboose of the city of Atlanta, and while thus detained, had robbed hitn of $50 00, by threats of prosecuting and sending his son to the penitentiary, whereby he was injured and damaged $5,000 00. The defendants pleaded the general issue.</p> <p>Upon the trial substantially the following evidence was introduced:</p> <p>Samuel Harris, the plaintiff, testified as follows: Was arrested by the defendant, Murphy, in August, 1869 ; had been to a pond near Grenville’s mill to fill up his water-cart; took off his coat and left it there; in the pocket was $200 00; his son, Harry, was with him; filled the boy’s barrel with water and sent him off, then he followed; never thought of his coat until he arrived on Whitehall street; his son emptied his water first and went back to the pond ; plaintiff told him about the coat; when he went back, met his son about ten steps from the pond with his load of water; his son said, “Father, it is not here;” followed 1ns son back to town, met the defendant, Murphy, and- told him he would give him $50 00 to recover his coat and the $200 00 in it; Murphy told him to bring his horse; he went off down the road; saw him no more for two or three hours; his son got the coat; met policeman Hinton, who was with Murphy; told him he had got his coat; run his hand in his pocket and told Hinton to tell Murphy to come to him and he would satisfy him for his trouble; soon after, met Murphy with his son, Harry; Murphy said, “ halt, I want my $50 00;” plaintiff said, “ Mr. Murphy, you never got my coat — if you had gotten it and brought it, I would have given you $50 00;” he said, “your son stole it;” I said he did no such thing; Capt. Anderson then said, “ he claims the reward.” Murphy said, “ come on;” we went to Bradfield’s drug store; plaintiff started to go out; Murphy said, “hold on;” two policemen came, and Mui'phy said, “take them to the guard-house;” plaintiff said, “what have I done; I will give bond;” two policemen carried them to the guard-house and locked them up; put them in different rooms; staid there twenty-five or thirty minutes; Murphy came and said to the two policemen, “ take them to Boggus’ office quick;” when plaintiff got there, found Murphy there; he said, “I want my $50 00;” plaintiff said he could not give it, as he never got his coat; he said, “if you don’t, I will write a warrant and send your son to the penitentiary;” plaintiff said, “good God, will you do that?” Murphy went to dinner, and said to defendant, Anderson, “get that $50 00 for me — if he don’t pay it keep his son, and I will send him to the penitentiary;” he paid the money; Capt. Anderson said, “I have nothing to do with it, I must do as Murphy says;” he said to me, after receiving the money, “go and get some friends, some attorneys, and tell them how Murphy has acted with you;” I believe he said, “you ought to keep the money in your pocket.” I staid two hours in Boggus’ office; he would not let plaintiff go out; they never took out a.warrant; they threatened to do so; plaintiff’s wife was there crying; she said, “ pay the $50 00, and let us get out of this trouble;” have been before the grand jury and given evidence in this case; it was about nine o’clock when he first told Murphy about his coat; it was about an hour before his son brought his coat to him; Murphy was captain of the police, and Anderson lieutenant under him; it was the second time his son went back to the pond when he got the coat; he was three or four hundred yards from the pond when he met him with the coat, and the money was in the pocket; paid the money to Captain Anderson; Anderson did not force him to pay it; Murphy forced him; his wife said pay it, as she was in so much trouble; it was after Anderson got the money he told him to go to a lawyer; Anderson did.not tell him he would not receive it, unless he paid it freely and voluntarily.</p> <p>E. C. Murphy, defendant, testified as follows: He met plaintiff on Alabama street; said he had been robbed; that he had $200 00 in his coat pocket; that he had left his coat at the pond from which he was hauling water; that he would give defendant $50 00 if he would get it for him; told him to keep his mouth shut and he wotild put the right man on it and get it if it was in- town; sent for Captain Anderson and told him the circumstances; he (Murphy) went to the pond and learned that no one had been there except an old one-armed man, and found that he was at home at the time plaintiff left; after riding about much and inquiring, became satisfied that the little negro who was plaintiff’s son, had stolen the coat, and ordered him arrested ; policeman Hinton arrested another little negro with plaintiff’s son, and all went up Whitehall street and met. plain tiff near a doctor’s store; ordered some policemen to take them to the guard-house and he would take the case to Boggus’ Court ; he sent them to the guard-house because the boy said the money came from the “rag boys;” hunted for the rag boys; no one had seen them around there. In the meantime, plaintiff and his boy had been sent to the guard-house; sent for them to be brought to Boggus’ office ;„ they had not been at the guard-house longer than fifteen or twenty minutes; he had not intended to have them kept at the guard-house long; told Boggus to fill out a warrant for robbery against plaintiff’s son; Boggus did not know how to write it; plaintiff was in the room at the time; had not been to dinner; left the case with Captain Anderson ; said he would go to dinner, and when he returned would prosecute the case; had intended putting plaintiff on the stand as a witness against the boy, not then knowing he was his son; was not present when the money was paid; when he came back to the office the case was put off; did not know whether warrant was taken against the boy or not; left instructions with Anderson to have the warrant made out; did not swear out a warrant himself; did not think he told Anderson not to turn them loose unless $50 00 was paid. Arrested plaintiff because he wanted him as a witness; did not want to go over the town for him; did not know, until he met plaintiff at the drug store, that the boy was his son; sent them to the guardhouse after that; he never ordered them locked up; ordered them to the guai’d-house. There was a magistrate’s office over James’ Bank; Boggus’ office was further from the place of arrest than that office; ordered them to the guard-house until he got the rag boys and other witnesses. Never took (Harry) him in the back room of Boggus’ office and told him if he would admit that he took the coat aud money, would turn him loose; told them in the office to hurry up aud do what they were going to do, to have things investigated; the money was divided between three: myself, Captain Anderson and Johnson ; I got $20 00; there was an account standing between Anderson and me. I was chief of police; Anderson was captain under me; Hutchins was a policeman; Boggus was a Justice of the Peace. Uever told plaintiff, in Boggus’ office, that if he did not pay the $50 00 he would send his son to the penitentiary; told him it would be a penitentiary offense if proven on him; he did not get his coat, but was instrumental in getting it; was so close on the boy that he brought it up. Hid not consider plaintiff a prisoner in Boggus’ office; would have allowed him to go ; could have gone when he pleased ; took him there for a witness.</p> <p>George W. Anderson, defendant, testified as follows: About nine o’clock, Murphy told him of the case; told him that the old man had lost his money at the pond, and offered $50 00 if he would get it; Murphy had been there and fixed it on a boy who was hauling water; we went out, met him and sent him to the guard-house; went with Murphy to Boggus’ office; asked the old man what he was going to do, as Murphy was going to get a warrant for the young man; after discussing the matter a while, Murphy said he was going to dinner, and said to me, “You can arrange the matter; I will have him here; get a warrant out, and when I get back I will sign it.” Murphy then went out. Do not remember whether the old man’s wife was there or not; she pulled out the money and wanted plaintiff to pay it; he said he did not think it was right to pay it; defendant said, “ Sam, if you don’t think it right, go and consult a lawyer, and if it is not right, I don’t want it;” the old lady said, “ pay it;” plaintiff said, “ yes, I will pay it;” defendant said, “ if I receive it, you pay it voluntarily, that is the understanding;” told him to go out and consult a lawyer; the money was then lying on the table; there were no threats whatever made; gave him a receipt for the money; can hardly say what became of the money; don’t know whether he got any of the money or not; there was an understanding with Murphy as to dividing such money; his recollection is that they divided it; had no particular rule when they got a reward; sometimes he would get one-half, sometimes one-third ; could not say that he got any of this money; it was his understanding that the $50 00 was to be paid or his son must be prosecuted; that the payment of the $50 00 was a discharge, of the parties; plaintiff paid the $50 00, and they were allowed to go; if he had not paid the $50 00, should have held him until Murphy came back. When parties were sent to the guard-house, they were sometimes locked up and sometimes not; parties were sometimes put in different rooms to investigate things. Plaintiff and his son were in the streets sprinkling water, in the regular course of business ; it was a common occurrence to take witnesses to the guard-house without making them prisoners; Murphy did not tell him to hold the old man there until the money was paid.</p> <p>Policeman Hinton testified as follows : Murphy told him that the old man had lost his pocket-book and $200 00 in it, and that he offered $50 00 for its recovery, and wanted witness to go with him to hunt it; sometime afterwards met the old man, and he told him he had got his coat, that his son had brought it to him, that he had got his money, and wanted to know what he charged for his trouble; told him nothing, and referred him to Murphy; told Murphy that the old man had got his coat, and how he got it ; Murphy said the boy had stolen the coat, “ let us go and arrest him ;” Murphy said, “take the old man along as a witness;” witness had before arrested another boy for stealing, and they all were carried to the guard-house; it was his understanding that the old man was to go along as a witness.</p> <p>M. J.Jvey testified as follows: Was in the office of the Justice of the Peace, Boggus, when Anderson, Murphy, the old man (plaintiff) and his son, were there; while there, heard the question asked as to what was the proper offense to be charged against the boy; after some time Murphy left; the money was paid by the old man over to Anderson; Anderson said lie would not receive it, unless paid voluntarily; he was called to witness the fact that the same was paid voluntarily ; Anderson gave a receipt for the money; think it was understood that he was to go when the money was paid.</p> <p>-McAfee, for plaintiff, testified as follows: Saw the parties in Boggus’ office; gathered from the conversation of all the parties that plaintiff’s son had been arrested by the police, charged with stealing the coat and money of his father, and that Murphy claimed $50 00 from the old man as a reward he had offered for the recovery of coat and money; the old man claimed he ought not to pay it, because his son had brought the coat and money to him; understood that if the $50 00 was paid the boy would be turned loose, if not, he would be prosecuted ; did not hear Anderson say anything ; did not know anything of the payment of the money; did not know whether the old man was under arrest or not; they -were all in the office together.</p> <p>Harry Harris testified as follows : He found the coat in the bosom of a rag-boy; asked what was that in his bosom ? boy said it was none of his damned business; he struck him, and took the coat from him; went and gave the coat to his father; met Murphy, who told him to get off his sprinkler, and said, I arrest you for stealing your father’s coat; Hinton arrested him and carried him to the drug store; afterwards, Wooten, a policeman, came along, and Murphy said, take them to the guard-house; afterwards were carried to Boggus’ office, when Murphy said, get out a warrant for that boy for stealing his father’s coat; Murphy carried him in a private room, and said if he would say he stole the coat he would let him go ; Murphy said he was going to dinner, and told Anderson not to turn the boy loose until he got the $50 00 ; Murphy said, “ take charge of them, and if Sam. paid $50 00, to turn them loose.”</p> <p>The jury returned a verdict for the defendants.- The plaintiff moved for a new trial, upon the ground that the verdict •■was contrary to the law and the evidence. The motion was sustained and a new trial was ordered. Whereupon, the defendants excepted.</p>

<p>Factor’s lien. Affidavit. Statute of limitations. Estoppel.</p> <p>For the facts of this case, see the decision.</p>

Divorce. New trial. Ellen O’Halloran filed her libel for divorce against William O’Halloran, alleging adultery, cruel treatment, and habitual drunkenness.

<p>Attorneys. Leave of absence. Practice in the Superior Court. Amendment. New trial. Judgment. Estoppel.</p> <p>For the facts of this case, see tbe decision.</p>

<p>1. On the trial of an indictment for the offense of shooting at another, the defendant proposed to prove that a short time after the shooting, there was, at a grocery near by, to which both defendant and prosecutor had gone just after the shooting had occurred, a considerable number of negroes who were excited and were threatening to mob the defendant. There was no evidence, nor was it offered to be proved that any such threat was made before the shooting, and in fact it appearing that the excitement must have been caused by the shooting and wounding of the prosecutor :</p> <p>Held, That such testimony could not have illustrated the issue as to the guilt or innocence of the defendant for shooting at the prosecutor prior to-any such excitement or threats as were proposed to be proved, and it was not error in the Court to reject such evidence.</p> <p>2. The verdict in this case is sufficiently sustained by the evidence to justify the Court below in refusing a new trial on the ground that it was contrary to evideace.</p>

Relief Act of 1868. Tender. The evidence showed that the defendants, in November, 1862, tendered to the plaintiffs’ testator Confederate money sufficient to purchase Georgia Railroad bank bills for which the notes, on which the judgment was based, were given. This tender was refused. For the remaining facts, see the decision.

Promissory notes. Joint and several liability. Principal and security. Evidence. On August 14th, 1869, McCarter brought complaint against Turner and one H. H. Weaver upon the following note: “ One day after date, we or either of us promise to pay to J. K. McCarter, or bearer, three hundred and fifty-five dollars and seventy-one cents, for value received. This March 11th, 1863. (Signed) “E. A. Turner, “H. H. Weaver.” Weaver filed an issuable plea, under oath.

<p>Chattel mortgage. Partnership.</p> <p>For the facts of this case, see the decision.</p>

<p>Municipal corporations. Streets. Damages. Expenses. Charge of Court.</p> <p>George "V. Waldner brought case against the Mayor and Aldermen of the City of Savannah for $16,000 00 damages, alleged to have been sustained by him by reason of the negligent conduct of the defendant in not keeping Whitaker street in good repair at its intersection with Hall street, and in leaving open a ditch or sewer across the street first aforesaid at said point of intersection, into which, on the night of December 5th, 1871, the plaintiff and his horse were precipitated, to his great damage. The defendant pleaded not guilty. The evidence made substantially the following ease:</p> <p>On the night of December 5th, 1871, the plaintiff was returning home from his business, on horseback, through Whitaker street, one of the public highways of the city. His horse started, stumbled and fell into a sewer, which was opened across the"street, some eight or nine feet deep. Before the accident, his horse was worth $250 00; he was subsequently sold at auction for $50 00. The plaintiff was injured both externally and internally. Previous to the accident he was a hearty, strong man; since, his health has been very much impaired. He believes this result to be attributable to the injuries he then sustained. There were no lights placed at the opening to warn persons passing.</p> <p>The contract to build this sewer had been let out by the defendant to Charles Van Horn. He had sub-let the job to McCrohan & Kirlin, who were engaged in doing the work at the time of the accident. The contract stipulated that the work should be done under the supervision of the city surveyor to see that the contract was complied with. It contained no provision to the effect that the contractors should erect lights at night.</p> <p>The contest was as to whether the defendant, or the contractors doing the work, were liable to the plaintiff, and therefore much of the evidence is omitted.</p> <p>The defendant requested the Court to charge the jury as follows:</p> <p>1st. “ That the doctrine of respondeat superior applies only where the relation of master and servant exists; if, therefore, the jury find under the evidence that McCrohan and Kirlin were not the servants of the city, that the city is not responsible.”</p> <p>2d. “ That sub-contractors are not the servants of the superior; if, therefore, the jury find under the evidence that McCrohan and Kirlin were sub-contractors, the city is not liable.</p> <p>3d. “ That public officers in the discharge of a public duty are not responsible for the negligence and omissions of those employed by them.</p> <p>4th. “ That the Mayor and Aldermen in ordering the construction of a sewer in the street, though it may be for the time being an obstruction of the street, it is not a violation of their duty to keep the streets in repair.</p> <p>5th. “That a municipal corporation is not. liable for the misfeasance, negligence or omissions of those employed by it.</p> <p>6th. “ That the duty of putting up lights is a duty imposed upon the persons making the excavation, and not upon the city employing them.</p> <p>7th. “ If the jury find that the injuiy was occasioned by the stumbling of the horse, and not because there were no lights, the city is not liable.”</p> <p>The Court proceeded to charge the jury, and referring to each request separately, refused to give it in charge. The jury rendered a verdict for the plaintiff for $2,000 00. The defendant moved for a new trial on the following grounds:</p> <p>1st. Because the Court erred in refusing to charge as requested in the first, second, third, fourth, fifth, sixth and seventh requests to charge. k</p> <p>2d. Because the Court erred in the reason given for his refusals to charge as requested, that reason being that the city could not delegate its right, power and. duty to keep the street in repair, there being, it is respectfully submitted, no such delegation of right, power and duty involved in the law or the facts of this case.</p> <p>3d. Because the Court erred in saying to the jury that perhaps if there had been lights the horse would not have stumbled, this in reply to the seventh request to charge, which was, that if the jury should find under the evidence that the injury was occasioned by the stumbling of the horse, and not because there were no lights, the city would not be liable. The plaintiff in error submits that this was an expression of opinion on the evidence, which is error.</p> <p>4th. Because the Court erred in instructing the jury that in estimating the damages they could take into consideration the expense to which plaintiff had been put in and about his suit, thus leaving the jury to find a fact in regard to which there -was not a particle of testimony.</p> <p>The motion was overruled and a new trial refused. Whereupon the defendant excepted upon each of the grounds aforesaid.</p>

Charge of Court. Opinion on evidence. New trial. This is the second time this case has been before the Supreme Court: See 45 Georgia Reports, 415. For the facts, see the decision.

Garnishment. Evidence. Charge of Court. Ignazio G. Strupper sued out an attachment against Samuel Lovinger for $750 00, and had the same levied by serving summons of garnishment upon John King and W. A. Barden & Company. King answered, denying having any assets of Lovinger’s in his hands. His answer was traversed.

<p>Equity. Bill of review. Statute of limitations.</p> <p>For the facts of this case, see the decision.</p>

<p>Where a grantee in a -deed, executed in 1849, absolute on its face, but the grantor remaining in possession of the property, filed a bill in 1871 against the administrator of the grantor, alleging that there was a parol trust attached to the contract under which the deed was made, to-wit: that it was a transfer of the property in trust for the payment of a debt due the grantee and others by account, and the prayer of the bill was for a decree that the land should be sold and so appropriated :</p> <p>SeM, That under the allegations in the bill and the proof at the hearing, complainant was not entitled to any greater rights than a mortgagee would have where the mortgagor remained in possession, or than if the debt had been by a security under seal: and he is barred by the Act of March 16, 1869, in accordance with the decision made daring the present term in the case of John George vs. James Gardner.</p>

<p>NeAV trial.</p> <p>For the facts of this case, see the decision.</p>

Warranty. Covenant. Vendor and purchaser. James M. Fields, for the use of Elias E. Fields, Lewis Tumlin and Samuel Pulliam, brought an action for breach of covenant against Joseph Willingham, and James A. Cantrell and George W. Collier, as administrators of Merideth Collier, deceased, laying his damages at $12,000 00.

<p>Where medicines are delivered to the defendant prior to 1860, to be sold on commission, and a demand was made by the plaintiffs for a settlement in 1871, when the defendant still had some portion of the drugs on hand, and suit was commenced on August 7th, 1872, said action was not barred by the statute of limitations, it being within four years from the time of the demand.</p>

<p>Where a railroad company permits other companies or persons to exercises the franchise of running cars drawn by steam over its road, the company owning the road, and to which the law has entrusted the franchise, is liable for any injury done, as though the company owning the road were itself running the cars.</p>

<p>Bankrupt. Mortgage. Judicial sale. Evidence.</p> <p>For the facts of this case, see the decision.</p>

Homestead. Incumbrance. Crops. Johnson had an execution against Holmes levied upon his crop after it had matured and been gathered. Holmes filed an affidavit of illegality, setting up that the property levied on had been set apart to him as an exemption of personalty under the Homestead Act of 1868.

<p>1. Conceding the right of the plaintiffs to institute suit on the administrator’s bond for an unliquidated demand against the intestate, which is left an open question in this class of cases, it is incumbent on the plaintiffs, when the plea of •plene administravit is filed, to show sufficient assets in the hands of the administrator to meet the indebtedness, and the evidence being conflicting on this point, this Court will not interfere.</p> <p>2. It is immaterial who makes the application for the twelve months’ support for the family of the deceased, so that the representative of his estate has notice; therefore, such an application by the temporary administrator and the action of the Ordinary thereon, is not void as against creditors.</p>

<p>Evidence. Practice in the Supreme Court.</p> <p>Johnson brought suit against Cutts on the following contract:</p> <p>“Americus, Ga., Sumter County, Jan. 1st, 1868.</p> <p>“ At any time between the 25th of September and 25th day of December, 1868, 1 promise to pay to William Johnson, of North Carolina, one hundred and sixty-two and one-half bales of good, sound, merchantable cotton, of average quality, raised on his plantation, to be delivered at Americus depot, closed in new bagging and ties, weighing on average five hundred pounds each, to be received at any time within the specified time, whenever fifty bales are presented, the cotton to be of the present year’s crop, for value received. Witness my hand and seal. (Signed) A. S. Cutts.”</p> <p>“ Received on this forty-four bales cotton, weighing twenty thousand four hundred and three pounds, (20,403 pounds,) December 30th, 1868.”</p> <p>“ Received on this four bales cotton, weighing forty-six hundred and ninety pounds, (4690 pounds,) May 12th, 1869.”</p> <p>The defense sought to be established is difficult to be understood, on account of continual reference to papers said to be attached to the bill of exceptions, as exhibits, but which, by .an omission, were not so annexed. But it appears that the defendant sought to show by parol evidence that plaintiff, on November 7th, 1866, sold certain lands in Sumter county to one C. W. Charlton, for one hundred and eighty bales of cotton, weighing five hundred pounds to the bale, to be delivered in Americus at any time from the middle of September until the 25th of December next, the plaintiff giving his bond to execute a conveyance, upon a compliance by Charlton with the terms of said contract; that on December 27th, 1866, Charlton transferred said bond to the defendant, who executed the obligation sued on in renewal or extension of Charlton’s undertaking, and that consequently the defendant was only liable to the plaintiff for what was due on Charlton’s contract for the portion of cotton not delivered by him, estimating it at its value at the maturity of his (Charlton’s) contract.</p> <p>The evidence was excluded, and the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff for $9,546 69, with interest from December 25th, 1868. The defendant assigns error upon the aforesaid exception.</p> <p>When this case was called in the Supreme Court, a motion was made to dismiss the writ of error, because certain documentary evidence, to the exclusion of which exception had been taken, and which was referred to in the bill of exceptions, as exhibits, were not so annexed. There was no motion for a new trial, and the evidence consequently came up as a part of the bill of exceptions. The Court overruled the motion, but confined counsel in their argument, to the exceptions to the exclusion of certain parol evidence, refusing to take under consideration any question which involved said documentary evidence.</p>

<p>Railroads. Demand. Negligence.</p> <p>For the facts of this case, see the decision.</p>

Criminal law. Autrefois eonviet Jurisdiction. Mize was indicted for gaming, alleged to have been committed on April 12th, 1873.

<p>Husband and wife. Divorce. Alimony. Infant.</p> <p>For the facts of this case, see the decision.</p>

Constitutional law. Homestead. Garnishment. Vendor and purchaser.

Injunction. Bankrupt. Thornton filed his bill against Fillingin, and others, who have no part in the issue here involved, making substantially this case: Fillingin had a homestead in real and personal pi’operty set apart to him under the Act of 1868. On February 2d, 1871, complainant, under the provisions of said Act for the sale of homesteads, purchased the land so set apart at and for the sum of $2,000 00, of which purchase money he has paid all but $389 00.

<p>Relief Act of 1868. Judgment. Confederate States.</p> <p>For the facts of this case, see the decision.</p>

Mechanic's and laborer’s lien. Equity. Parties. Estoppel. Eliza Archer brought ejectment against Joseph W. Wooten, Clinton Taylor and Thomas Sharp to recover a lot on Broad street, in the city of Atlanta, with its appurtenances, and also mesne profits. The action was commenced in September, 1871. According to the record, the case was in default. According to the bill of exceptions, the defendant pleaded the general issue and two special pleas.

<p>3. Title to personal property by capture on land during a war, can only be set up by the organized and recognized parties to the war, or by those acquiring title from them, according to the'orders and regulations prescribed by the governments and their military authorities.</p> <p>2. An immaterial error is no ground of new trial.</p>

<p>Trusts. ' Equity. Proohein ami.</p> <p>Gazaway L. Milledge brought ejectment against Jane Bryan to recover an undivided fifth of certain lands situated in Chat-ham county.</p> <p>The defendant pleaded, 1st. Not guilty. 2d. That the suit, though having for its object the enforcement of rights which accrued prior to June 1st, 1865, was not brought until after January 1st, 1870.</p> <p>The following is an abstract of the evidence for the plaintiff:</p> <p>1st. A trust deed from Mary Milledge to John W. Anderson, Francis S. Bartow, and Charles A. L. Lamar, dated February 16, 1853, whereby she conveyed to them certain lands in Chatham county, of which the land in question is a part, to have and to hold the same, with the appurtenances, etc., unto them and their successors in the trust, their heirs and assigns forever, upon the following trusts, viz.:</p> <p>“In trust, to grant, bargain, sell, lease, mortgage, or otherwise dispose of said lots, in whole or in part, and in such manner, or upon such terms as to the said parties of the second part may seem meet and proper, and to apply or hold the money thus realized in manner following, to-wit: first, to the payment and discharge of a mortgage upon said lots from said Mary Milledge to said John W. Anderson, dated the 8 th day of January, 1853, to secure the payment of a note of $4,500 00, bearing the same date with said mortgage, and due sixty days after date, and then to pay the sum of $3,000 00 to the said Mary Milledge, or to the written order and receipt of Catharine Milledge, the wife of John Milledge, jr., of said county of Eiohmond, or to such other person or persons as they, or either of them, may in writing direct, and to invest the residue of said money in such stocks or other securities, or in such real or personal estate, paying at least a semi-annual income, as to the said parties of the second part may seem most suitable, and to pay the income arising from said installments, when made, and also of such portion of the property herein originally conveyed as shall remain unsold, to and upon the written order of the said Mary Milledge, the party of the first part, or upon the written order and receipt of Catharine Mil-ledge, the wife of said John Milledge, jr.; the money thus paid to the said Catharine Milledge, Avife of said John, to be made over to her sole and separate use, and not in any Arise subject to the debts, contracts, or control, of her said husband, and upon the further trust that the said parties of the second part shall and will hold the principal money arising from the sale and lease of said lots, after the payment of said sum of $7,500, as aforesaid, and such of said real estate hereby conveyed and remaining unsold, to and for the use and benefit of the said party of the first part, and to convey the same to such person or persons as the said party of the first part may during her lifetime appoint, or whom she may designate in her last will and testament, and upon such conditions as may be therein declared; and in case the said party of the first part should die intestate, then to hold the same for the said Catharine Mil-ledge, wife of said John, and for the children of the said John and his said wife, living at the time of the death of said party of the first part, free from all control or liability on account of the debts or contracts of said John Milledge. And it is hereby expressly declared that the said parties hereto of the second part, or any further trustees hereof, shall not be held responsible for the acts of each other, but that they shall be severally accountable to the parties in interest for such sums of money as may have been received by each individually. And it is further declared and agreed that if all or either of the trustees hereby appointed shall die or resign the trusts hereby created, that the place of the trustees resigning or dying may be supplied by such person or persons as the said Mary Milledge may, in writing, nominate; and the person or persons thus nominated and accepting the trust shall have all the powers and authorities which he or they would have had, were they the original trustees herein.”</p> <p>2d. Depositions of Catharine H. Milledge. “I know of the trust deed. I am the Catharine Milledge therein mentioned as the wife of John Milledge, jr. Mary Milledge and my husband were cousins, and I knew her well, of course. She died September 28, 1856. My husband died May 13, 1872. We had four children living at the time of Mary Milledge’s death, viz.: John, Kate, Richard, and G. L. Milledge. The last named is the plaintiff in this suit. They are all now living. Gazaway L. is the youngest. He was bom May 30, 1849. My husband was a citizen of Richmond county during the years 1857 and 1358. I knew John C. Snead. He was no relation or connection of ours, but was once a law partner of my husband. I think he resided in Augusta in 1857.”</p> <p>On the cross-examination, the witness said: “I knew the said Anderson, Bartow, and Lamar. I believe they are now dead. They resided in Savannah.”</p> <p>3d. The defendant then admitted that the land sued for was a part of the land included in the above trust deed, and that the defendant was in possession at the time the suit was brought.</p> <p>FOB THE DEFENDANT.</p> <p>1st. Petition of the above named Anderson, Bai’tow, and Lamar, and others, for the appointment of John Milledge to be trustee under said deed, in their stead, and order thereon, as follows:</p> <p>“Chatham Superior Court, May Teem, 1857.' \uIn Chatham Superior Court, ex parte John W. Anderson et al.</p> <p>“ GEORGIA — Chatham county :</p> <p>“ To the Honorable the Judge of the Superior Court of said Chatham county, having jurisdiction in equity:</p> <p>“The petition of John W. Anderson, Francis S. Bartow, Charles A. L. Lamar, John Milledge and Catharine, his wife, respectfully showeth, that on the 16th day of February, in the year 1853, Mary Milledge, of the county of Richmond and State of Georgia, in and by a certain indenture conveyed to your petitioners, John W. Anderson, Francis S. Bartow and Charles A. L. Lamar, certain real estate situate in the said county of Chatham, to be by them held in trust for your petitioner, Catharine Milledge, wife of said John Milledge, and her children, free from the debts or obligations of said John Milledge; and your petitioners further show that the said John W. Anderson, Francis S. Bartow and Charles A. L. Lamar assumed the trusteeship cast upon them in and by said deed, and have borne the duties of the same up to the present time; that in and by one of the clauses of the said trust deed, it is declared, ‘ that if all or either of the trustees hereby appointed shall die or resign the trusts hereby created, that the place of the trustee resigning or dying may be supplied by such person or persons as the said Mary Milledge may, in writing, nominate;7 and your petitioners further show that the said John "W. Anderson, Francis S. Bartow and Gharles A. L. Lamar, trustees as aforesaid, are desirous of resigning, and do hereby resign, their said trusteeship, and beg to be discharged from the same; and that your petitioner, Catharine Milledge, is willing they should do so, and hereby consents thereto, and is further desirous that her husband, the said John Milledge, should be, by this honorable Court, appointed trustee, under the said deed, in their place and stead; and your petitioner, John Milledge, hereby consents to accept the said trusteeship, and to discharge the duties of the same; and your petitioners show here to your Honor that, in consequence of the aforesaid resignation by the said trustees, the said trust estate is unrepresented, and your petitioners bring here and show to your Honor the said original trust deed from the said Mary Milledge; and your petitioners will ever pray, etc.</p> <p>(Signed) “Cathaeine G. Milledge,</p> <p>“John Milledge,</p> <p>“C. A. L. Lamab,</p> <p>“Eeancis S. Baetow,</p> <p>“John W. Andeeson,</p> <p>“by his solicitor, John M. B. Lovell.”</p> <p> “In Chatham, Superior Court, ex parte John W. Anderson et at. </p> <p>“On reading and filing the petition in the above case, it is ordered, adjudged and decreed, that the said John W. Anderson, Francis S. Bartow and Charles A. L. Lamar be and they are hereby discharged from their trusteeship, as is prayed for in the aforesaid petition, and that the said John Milledge be and is hereby appointed trustee, under the said trust deed, in their place and stead.</p> <p>(Signed) “W. B. Fleming, J. E. B. Ga.</p> <p>“Dated Savannah, June 17th, 1857.”</p> <p>2d. An amicable bill, filed in the names of Catharine Mil-ledge, wife of John Milledge, by John C. Snead, as her next friend, and John Milledge, Catharine Milledge, Richard IT. Milledge and Gazaway L. Milledge, infants under twenty-one, by the said Snead, as their next friend, against John Milledge, trustee, etc., with the answer and decree. The bill stated the trust deed already in evidence; that Mary Milledge was dead, intestate, and without having appointed any one to take a conveyance of the property, as provided by the deed; that the minor complainants were the only children of the complainant, Catharine, and her husband, John Milledge, living at the death of the said Mary; that the trustees had sold some of the property and paid the mortgage to Anderson and the $3,000 00 mentioned in the deed, but had made no further sales; that they had afterwards resigned the trust, and John Milledge, the husband of the complainant, Catharine, had been appointed in their stead by the order of the Court; that there was due on the property $1,000 00 to Lamar, and $600 00 to one "Wylly, for which he had a lien, left unpaid by the resigned trustees; that it was necessary to provide for the education of the two eldest children, but they were without means to procure it, unless means could be raised by a mortgage of the unsold property remaining in the hands of J ohn Milledge, the trustee; that the deed gave power to the trustees and their successors to sell and mortgage the property or any part of it, and that the complainants had applied to J ohn Milledge, as successor in the. trust, to mortgage the property to raise $4,100 00 to pay off the above mentioned incumbrances, and to educate the complainants, but that John Mil-ledge refused to do so, for want of authority, etc.; that all parties in interest were represented and consenting, and there was no question of fact in dispute. The bill then prayed for a decree to require Milledge, as trustee, to raise $4,100 00 by the proposed mortgage, etc. Appended to the bill was this authority to the solicitors:</p> <p>“We authorize Messrs. Lloyd & Owens to file this bill, and use our names as complainants and proehein ami.</p> <p>(Signed) “John C. Snead,</p> <p>Eor Mrs. Catharine Milledge, and the infants, complainants, John, Catharine, Richard H. and Gazaway L., named in the foregoing bill. (Signed)</p> <p>“June 20, 1857.” “Catharine Milledge.</p> <p>John Milledge, the defendant, acknowledged service June 20, 1857, and on the same day, before a Notary of Chatham county, swore to his answer, which admitted the facts stated in the bill, and was filed June 22, 1857 On the same day the answer was filed, the decree was rendered, reciting that “this cause came on to be heard before me at Chambers upon bill, answer and exhibits, all parties in interest being represented and consenting, and no question of fact being in dispute,” and proceeding to give the authority to mortgage prayed for.</p> <p>3d. A mortgage given by John Milledge, as trustee, in pursuance of the above decree, to Joseph Burke, dated June 22, 1857, including the land sued for.</p> <p>4th. The record of foreclosure proceedings upon said mortgage. Eule absolute rendered in May, 1858.</p> <p>5th. The execution in pursuance of the foreclosure, with the sheriff’s entries of the levy and sale.</p> <p>6th. The deed from Waring Bussell, sheriff, etc., in pursuance of the sale, to Joseph Bryan, dated March 4, 1859, and including the land sued for.</p> <p>7th. The will of the said Joseph Bryan, dated August 5, 1859, whereby he gave all his property to his wife, Jane, the defendant in this suit.</p> <p>It was admitted by the plaintiff that at the time of the sheriff’s sale to Bryan, Milledge was exercising authority and ownership over the land as trustee; and by the defendant, that at the time of the filing of the amicable bill, all the parties to it resided in Eichmond county.</p> <p>The jury returned a verdict for the defendant. The plaintiff moved for a new trial, upon the following grounds, to~wit:</p> <p>1st. Because the Court did not charge, as requested by the plaintiff, that the trust created by the trust deed from Mary Milledge to John W. Anderson and others, became executed upon the death of Mary Milledge; and that the said plaintiff then became the absolute owner, at law as well as in equity, of an undivided fifth of the property, the office of the trustee then ceasing as to him.</p> <p>2d. Because the Court did not charge, as requested by the plaintiff, that the order appointing John Milledge trustee under the said trust deed did not make him, trustee for the plaintiff.</p> <p>3d. Because the Court did not charge, as requested by the plaintiff, that the said order was void as to him, because he was not a party to the petition on which it. was granted.</p> <p>4th. Because the Court did not charge, as requested by the plaintiff, that the said order was void as to him, because he did not consent thereto, he being then an infant and incapable of such consent.</p> <p>5th. Because the Court did not charge, as requested by the plaintiff, that the said order was void, because all parties in interest were not represented and consenting, the Court being without jurisdiction, even in term time, to make such an order in an ex parte proceeding, except where all parties in interest were represented and consenting, and there was no question of fact in dispute.</p> <p>6th. Because the Court did not charge, as requested by the plaintiff, that the said order was fundamental to the decree afterwards granted; and the order being void, the decree was also void, at least as to the said plaintiff.</p> <p>7th. Because the Court did not charge, as requested by the plaintiff, that the decree granted at Chambers was void, because the Judge, at Chambers, had no authority to grant such a decree, except with the consent of all parties in interest; it being apparent on the face of the bill that the plaintiff was an infant, and was not consenting because he could not consent.</p> <p>8th. Because the Court did not charge, as requested by the plaintiff, that the decree was void, because the Judge, at Chambers, had no authority to order a sale or mortgage of trust property for any purpose not involving the preservation or reinvestment of the trust fund.</p> <p>9th. Because the Court charged substantially to the' contrary of each of the above propositions.</p> <p>The motion was overruled, and a new trial refused. To this decision the defendant excepted upon each of the grounds aforesaid.</p>

<p>Judgments. Estoppel.</p> <p>Eor the facts of this case, see tbe decision.</p>

Bankrupt. Parties. Pleading. Connor brought suit against the Southern Express Company for $1,500 00 damages, alleged to have been sustained on account of the negligent loss of goods by the defendant, which it had contracted to transport from the city of Savannah, in the State of Georgia, to the city of Columbus, in said State.

<p>1. If articles are purchased by a partner for the legitimate use and business of the firm, then both partners are liable for the payment therefor, notwithstanding the other partner may have notified the vendors of the articles not to extend credit to his associate on account of the partnership.</p> <p>2. Suit having been brought against partners jointly, the verdict should have been rendered against both and not against one only.</p>

Relief Act of 1870. Statute of limitations. Bank bills. Pleadings. Amendment. Constitutional law. On May 31st, 1871, Kimbro brought suit in the Justice’s Court of the one thousand two hundred and thirty-fourth district, against the Bank of Eulton, on four bills of said bank, dated September 20th, 1868, two for $20 00, one for $50 00, and one for $10 00.

<p>Scaling Ordinance. Evidence.</p> <p>Eor the facts of this case, see the decision.</p>

Statute of limitations. Swanson sued Black in the Justice Court of the seven hundred and eighty-ninth district, on a note which it is impossible to set forth, as the record fails to disclose a copy. The case was carried by appeal to the Superior Court, Henry S, Davis becoming the security for Black, the appellant. The defendant pleaded as set-off anote made by Swanson on January 2d, 1865, due December 25th thereafter, payable to the defendant or bearer, for $400 00.

<p>1. Where a portion of an execution from the Superior Court, was voluntarily paid to the sheriff by the defendant, but before the next term of the Court, executions of older date from a Justice Court were placed in his hands to claim the money, and, upon a rule, the fund in the sheriff’s hands was applied to the oldest execution, it waa error in the Court to make the rule absolute for the full amount of the Superior Court fi. fa. It should have been made absolute only for the uncollected balance.</p> <p>2. The refusal of a rule absolute against tbe sheriff for the balance due on the Justice Court fi. fas., they having been placed in his hands before levy, and when there was no mandate from the Court to him to make the money on them, hut for the purpose of claiming what money might be realized on the Superior Court execution, was not error.</p>

Statute of limitations. Account. John Christy & Company brought complaint against John O. Addison on an account dated January 31st, 1866, for $1,029 61, with a credit of $475 25, of date February 7th, 1866. The declaration was filei^n office on March 19th, 1870. The defendant pleaded the statute of limitations. Pending the litigation, he died, and his administratrix was made a party. The plaintiffs proved their account and closed.

Partnership. Warehousemen. Damages. Interest. William C. Dawson brought complaint against John R. Ivey, and William U. Garrard, as executor upon the estate of William W. Garrard, deceased, for $600 00, upon a contract made by said deceased and Ivey, as warehousemen and partners, under the firm name of J. E. Ivey & Company. Pending the suit Ivey died. The plaintiff suggested his death and dismissed the action as to him. For the remaining facts, see the decision.

Verdict. Sabbath. Practice in the Superior Court. Judgment. Samuel D. Irvin, as administrator of James Bond, brought ejectment against Charles W. Bass for a lot of land in Sumter county.

<p>1. The foreclosure of a mortgage is a suit, within the contemplation of the Act of March 16th, 1869; and if the instrument was executed before June 1st, 1865, and proceedings to foreclose were not instituted until after January 1st, 1870, they are barred by the provisions of said Act.</p> <p>2. The Act of 1869 is a general law, and has a general operation throughout the State as to that elhss of contracts specified in it, and, therefore, does not come within the purview of the 26th section, 1st Article, of the Constitution of 1868.</p> <p>8. This Act does not impair the obligation of the contract; it only affects the remedy.</p> <p>4. The plaintiff having an agent in this State in possession of the mortgage, and having control of its collection, the fact that he was a resident of Ireland, will not prevent the statutory bar.</p> <p>5. The credits on the notes, to secure which the mortgage was given, not being made by the mortgagor, or by any one authorized by him, do not renew the right of action.</p> <p>6. As to the suggestion of fraud, if there was any evidence of it to prevent the running of the statute of limitations, that was a question of fact for the decision of the Court, under the submission of the parties, and this Court will not interfere.</p>

Criminal law. 'Verdict. Eecommendation to mercy. West, alias Johns, was placed upon trial for the offense of arson, alleged to have been committed on the 3d day of August, in the year 1872, on an occupied dwelling bouse, not in a city, town or village. The defendant pleaded not guilty. The jury found the defendant guilty, and recommended him to the mercy of the Court. The Court sentenced him to be bong.

<p>Where the failure of title, set up as a breach of warranty in defense to a suit for the purchase money of land, was the result of the act of the defendants, a verdict for the plaintiff will not be interfered with.</p>

Mistake. Nancy Phillips, as administratrix of Noah Phillips, deceased, brought assumpsit against Archibold L. Camp, for $650 00, besides interest, making the following case: Defendant asserted to plaintiff that he held a judgment against her intestate, rendered at the September term, 1860, of Newton Superior Court, for $2,000 00, principal, and $766 10 interest, to date of judgment.

<p>Practice in the Superior Court. Jury. "Verdict. Mistrial.</p> <p>Eor tbe facts of this case, see the decision.</p>

<p>A defendant in execution, though he may have equities which would entitle him to file a bill for the purpose of setting aside the 'judgment on which the execution issued, has no right, unless he shows special reasons therefor, to enjoin the levy and sale, under the execution, of property which he alleges in his bill belongs to and is in the possession, of another person. Such owner of the property may assert his own rights in the premises in such a way as the law provides, and the defendant’s right can be determined on the final trial of his bill.</p>

<p>Removal of cases. United States Courts. Jurisdiction.</p> <p>For the facts of this case, see the decision.</p>

Landlord and tenant. Statute of frauds. Part performance. On June 24th, 1871, Elizabeth Kennon instituted proceedings against John F. Petty as a tenant holding over, to recover the possession of a certain tract of land situate in the county of Haralson. The defendant filed his counter-affidavit to the effect that the term for which he had rented said lot of land had not yet expired.

<p>1. Where, after the dissolution of a firm, new notés are given by one of the partners in the firm name, the evidence should be clear and satisfactory of the notice of such dissolution to the creditor accepting such notes, to discharge the other partner.</p> <p>2. Where a firm is sued on notes, and one of the partners pleads non est factum, the other making no defense, the evidence being conclusive that the notes were signed by him, a verdict for the defendants is contrary to law.</p>

<p>There being nothing in the record shoAving that the case was not fairly submitted to the jury, and as the verdict was to be determined according to the credit they might give to the testimony of a witness who was a party to the suit, this Court will not interfere by setting aside the verdict, especially as it does not appear that the jury abused their right in the premises-as to the credibility of the witness, under the circumstances exhibited in the record. Under the Act of December 15th, 1866, juries have a larger discretion as to the credit they will give such witnesses, than in the case of witnesses who are not parties.</p>

<p>Municipal-corporations. Savannah.</p> <p>For the facts of this case, see the decision.</p>

Scaling Ordinance. Witness. Joseph Hudson, as administrator upon the estate of David Hudson, deceased, for the use of Simeon Beck, brought complaint against Joseph T. Spence upon the following note: “ On the 25th day of December next, I promise to pay David Hudson, one thousand dollars for cotton now in the gin-house of said Hudson, and his crop of the present year, to be picked and placed in gin-house. August 10th, 1863.

<p>The killing of a human being, even in the heat of passion is murder, if the slayer have no just cause for his anger, or if after the provocation, and before the killing, there be sufficient time for passion to cool and reason to resume its sway.</p>

Husband and wife. Promissory notes. Indorsement. Pleading. Presumption. L. H. Miller brought complaint against Charles B. Leitner, as principal, and Sarah A. Leitner, as indorser, on the following note: “$150^00 Macon, Georgia, August 29th, 1866. “ Sixty days after date, I promise to pay S. A. Leitner, or bearer, one hundred and fifty dollars, at Nutting, Powell & Company's office, in Macon Georgia. Value received. Interest from date.

Promissory notes. Indorsement. L. H. Miller brought complaint against Sarah A. Leitner, as principal, and Charles B. Leitner, as indorser, on a note made August 29th, 1866, due at sixty days, fer $100 00, payable to C. B. Leitner, or bearer, indorsed by C. B. Leitner, J. ~V. H. Allen, treasurer, and L. II. Miller.

Libel. Justification. Damages. Evidence. Recoupment. Christian brought case against Ransone for $25,000 00 damages, alleged to have been sustained by tbe plaintiff by reason of tbe following libelous publication by the defendant; “Oakland, May 29th, 1871. “Dr. Sope II. Christian: I have not before this jxirsucd tbe course I now adopt, because a misconstruction of my motives might have prejudiced some member of the jury in your favor.

<p>1. The Act of 1869, so far as it may be considered as a legislative interpretation of the meaning of the Constitution, only gives a summary remedy for the enforcement of mechanics’ and laborers’ liens upon the property of their employers, when the debt is due for the labor actually performed by them, and for the materials furnished, with which</p> <p>' and upon which the labor has been performed.,</p> <p>2. Though contractors may be mechanics, yet this fact does not entitle them to the benefit of the provisions of the Act of 1869, if the work is done by them as contractors, through the labor of others employed by them for that purpose.</p>

<p>Where A approached B for the loan of money, offering a mortgage upon property to secure the repayment, and B declined, but said that A could get the money if he would deed him the property, and A made an absolute deed, taking B’s bond to deliver bach the deed on the payment by A of a sum which was just the amount of the money got by A with a certain amount per month rent, and the possession was not changed in fact, nor the deed recorded :</p> <p>Held, That whether the transaction was a sale with a right in the vendor to repurchase, or whether the whole was a ruse devised to evade the usury laws and to take a security for the loan of money, was a question of fact for the jury, and the jury having, under the evidence, decreed the cancellation of the deed on the payment of the amount due, the verdict ought, under the evidence in the record, to stand.</p>

Evidence. Impeachment of witness. Mary M. Brown brought complaint against Guerry, Oatis & Company, and Theodore L. Guerry and William Harrison, as executors of James Harrison, deceased, upon the following note: “$3,060 00. One month after date we promise to pay Mrs. M. M. Brown, or bearer, three thousand and sixty dollars, value received. 29th January, 1867.

Equity. Injunction. Administrators. Receiver. Title. Clarida Quinn and Elias Godwin, as next friend of Charlie Quinn, an infant, filed their bill against John F. Powell, making substantially the following case: Charles M. Quinn, the father of Charlie Quinn, was the son of Clarida Quinn, and brother-in-law of Elias Godwin, Godwin having married his sister.

<p>1. It was error in the Court to charge “ that upon the failure of the purchaser at sheriff’s sale to comply with the terms of the sale, the sheriff might lawfully put up and sell the property at a subsequent sale day, without readvertising the property, and that, in the meantime, he had the right to sell and convey the property to any person who would come forward and take the bid off the delinquent bidder’s hands, and pay the money, particularly if it was acquiesced in by the delinquent bidder.”</p> <p>2. Where property was advertised for December sales, but was not sold until the first Tuesday in January, and then without any new advertisement, and the purchaser failed to comply with the terms of the sale, but some days afterwards transferred his bid to another who did comply, receiving a conveyance from the sheriff:</p> <p>Held, That he acquired no title.</p>

<p>A testatrix made her will in 1863 and died. By one item of her will, she directed her executors to keep up her plantation in Quitman county, and work her slaves thereon, declaring that she desired this to be done “ for the purposes hereinafter to be mentioned.” In the same item she directed her executors, in ease the plantation should be unprofitable, or there should be danger of a depreciation or loss of her property, to sell the same, in their discretion, and invest the proceeds in interest bearing securities. In the next item, she gave certain amounts of money to her nephews and nieces, “ to be paid out of the plantation, without interest, after paying all expenses arising from its prudent management.” In another item, she gave all the use of her estate to her son, her only living child, appointing her husband his guardian, and directing that her husband should hold the property as trustee for her son, and receive the profits in trust for his use during the life of the husband, but without accountability, he to preserve the corpus of the estate for the son. She appointed her husband and his brother her executors. The testatrix died in 1864. The slaves were emancipated, and it then became impracticable to carry out the scheme of working the plantation with the slaves, and thus raising the means to pay these legacies:</p> <p>Held, That, taking the whole will together, the testatrix intended the legacies to her nephews and nieces to be paid only out of the profits to be made |>y working the slaves upon the land, and that, as this became impossible on the emancipation of the slaves, the legacies to the nephews and nieces fail with the failure of the fund, and the corpus of the estate went to the son free from any charge to pay the legacies to said nephews and nieces.</p>

Money rule. Judgments. Evidence. An execution in favor of E. C. Greer, executor of Samuel Griswold, deceased, against Robert Parker, based upon a judgment rendered in Webster Superior Court on September 16th, 1868, brought into Court $120 00.

<p>1. An affidavit of illegality to an execution having been filed on the ground of want of service, it was incumbent on the defendant to have produced the record of the suit and to have 'supported the allegations in his affidavit by evidence, the presumption of the law being in favor of the validity of the judgment.</p> <p>2. It appearing from the evidence that the execution had been assigned by the original plaintiff, in whose name it was then proceeding, to another, who had since died, there being no written evidence thereof, it was not error in the Court to disallow a motion to suggest the death of the transferee upon the record, and to continue the case until his estate was represented.</p> <p>3. Grounds other than those taken in the affidavit of illegality, cannot be insisted on at the hearing.</p>

Judgment. Execution. Homestead. Sheriff. Judgment was rendered in the Inferior Court of Muscogee county, at the March term, 1866, in favor of William M. Peters, against one James E. Winter, for $508 77, principal, and $190 05, interest to date of judgment, aud costs. The execution issuing therefrom was levied on November 4th, 1868, on lot one hundred and ninety-six, in Columbus, but no sale was made thereunder.

New trial. Allen, Preer & Ilges, brought assumpsit against ~W. R. Skinner and L. Skinner, upon the following account: W. R. Skinner and L. Skinxer, 18G9. In account with Allex, Preer & Ilges : June 18th. To discount your note (draft) due 18th October, $134 00 July 8th. “ “ “ “ “ 1st November, 108 60 July 19th. “ “ “ “ “ 1st November, 34229 October 22d. Paid your bill with Preer & Ilges..................... 217 86 Cr. $1,102 72 October 27th.

Claim. Damages. An execution in favor of Grief W. Epps against John M. Granberry, principal, and Tomlinson E. Brewster, security, which had been transferred to William J. David, was levied on May 1st, 1867, on five hundred and twenty acres of land, situate in the county of Harris. This property was claimed by Pleasant H. Whitaker on June 4th, 1867.

New trial. Practice. Wadford brought complaint against Rhodes for $720 00, the balance due upon an account for cantaloupes sold, after allowing credit of $100 00. The defendant pleaded the general issue. The real defense relied upon was that the defendant purchased the cantaloupes for a man by the name of Bryant, disclosing the name of his principal at the time of the contract. Upon this point the testimony was exceedingly conflicting.

<p>Insurance. Principal and agent.</p> <p>In February, 1866, Lloyd G. Bowers, in behalf of Edward Seabrook, administrator upon the estate of George O. Lawson, deceased, applied to LeWitt F. Wilcox, in Columbus, Georgia, the agent of the Underwriters’ Agency, for insurance on one hundred and ten bales of cotton, which risk, in behalf of the Underwriters’ Agency, Wilcox refused to take.</p> <p>Bowers then wrote a letter to Y. G. Rust, as follows:</p> <p>“Columbus, February 6, 1866.</p> <p>“Y. G. Rust, Esq. — Dear Sir: Will you please find Mr. Oliver Cromwell and get particulars of him how he ships two lots of cotton to Apalachicola, (one of fifty bales, the other of sixty bales,) and insure them to Apalachicola. Send bills to me and I will remit by express. Mr. W. Cromwell expected me to insure, but found out, after his son had left, I could not. Your prompt attention will oblige</p> <p>“Yours, L. G. Bowers.</p> <p>“How is your cotton market? Market dull here. Middlings, thirty-eight cents. Is there much in your section ? ”</p> <p>To which Rust responded as follows:</p> <p>“Albany, February 9, 1866.</p> <p>“L. G. Bowers, Esq., Columbus — Dear Sir: Your favor of the 6th instant is received. Mr. Cromwell is now shipping sixty bales of cotton by steamer ‘ White Rose,’ now loading at this place. The other fifty bales he will not be able to get off in time for the boat, but will ship next week. The treasury agents have seized one bale of his cotton, the producer being a subscriber to the cotton loan. Middling cotton worth, to-day, thirty-five cents. Yours truly,</p> <p>“Y. G. Rust.”</p> <p>The steamer White Rose sunk on the 19th February. Oliver Cromwell, on the 21st February, called on Y. G. Rust “ to make arrangements about collecting the insurance or to take initiatory steps thereto.” Rust remarked, “why your cotton is not insured,” etc. Rowers and Rust were insurance agents, Bowers in Columbus and Rust in Albany, of the -ZEtna and Home. Wilcox in Columbus, and Rust in Albany, represented the Underwriters’ Agency. After this Seabrook, administrator as aforesaid, through his agents, took charge of the cotton, shipped it to Apalachicola, sold part as damaged, shipped part to Liverpool, received proceeds of sale on 5th April, 1866, and on the 13th April, 1866, filed a bill versus Y. G. Rust and the Underwriters’ Agency, charging the latter with constructive fraud in inducing him, Seabrook, to believe his cotton was insured in that company, in consequence of which he failed to take out other insurance. The charges in his bill are:</p> <p>1st. That he applied through his agent, Warham Cromwell of Columbus, to Lloyd G. Bowers of the same city, to insure said (one hundred and ten bales) cotton ; that Bowers replied he could not take the risk himself as the cotton was not in his district, but that he would get it taken by Yewell G. Rust, of Albany, the agent of the Underwriters’ Ageney; that Bowers wrote the letter before set out to Rust and received the reply hereinbefore set forth, which Bowers considered as an insurance of the cotton, and so informed complainant, who rested satisfied that his cotton was insured.</p> <p>2d. That he, Rust, afterwards acted on this letter in respect to the lot of fifty bales, which he not only did insure as agent of Underwriters’ Agency, but made out all of his charges, ineluding the premium of insurance against Bowers.</p> <p>3d. That complainant, for these reasons, reposed full confidence in Rust, as agent of the Underwriters’ Agency, that he would insure said cotton, and that his omission or neglect to do so was contrary to the legal and equitable duty of said company, and caused to complainant the loss of his cotton.</p> <p>In addition to the letters at the trial, complainant introduced L. G. Bowers, who testified, that he did not write the letter to Rust as agent of the Underwriters’ Agency; that he did not have said office, or any other, in his mind; that he merely wrote to Rust because he knew that he was the agent of several companies; supposed that Oliver Cromwell would attend to getting certificates of insurance; that he should have called on Rust for that purpose.</p> <p>Warham Cromwell, agent of complainant, testified: Bowers said he could not insure the cotton in Albany, as Rust represented at that point the companies represented in Columbus by him, Bowers; that he would see Wilcox, the agent of the Underwriters’, and endeavor to get insurance; if he failed, that he would write to Rust and instruct him to insure; that he did apply to Wilcox, agent of Underwriters, who declined the risk, and he had written to Rust, by mail and express, instructing him to insure the cotton; witness saw the letter written by Rust to Bowers, and was fully and entirely satisfied the cotton was insured and so informed complainant.</p> <p>Oliver Cromwell testified, that all that occurred between him and Rust in regard to the sixty bales was that Rust showed him. Bowers’ letter, and he told Rust how he was shipping; did not request insurance in any particular company.</p> <p>Y. G. Rust testified, that he did not represent any insurance company when he had read the letter to Cromwell, or when he wrote the reply; that he was agent, at the time, for the .¿Etna, the Home and the Underwriters’ Agency, and as Cromwell neither advised him of the marks, values or completement of the shipment, he did not even know what cottons' were shipped on the “White Rose,” or that he was looked to for insurance until after the wreck.</p> <p>Both Rust and Cromwell testified that the fifty bales were insured on a special and separate application by Oliver Cromwell for insurance in the Underwriters’ Agency; that the premium, $217 00, was paid in cash at the time, and certificates of insurance delivered.</p> <p>The Underwriters’ Agency introduced no evidence.</p> <p>Before charging the jury, the Court inquired of complainant’s counsel if he sought to have a decree against defendant, Rust. He replied that he did not. This occurred in presence of the jury. The Court then charged:</p> <p>1st. That in this proceeding no decree could be rendered against Rust.</p> <p>2d. That if the defendant, by its agent, induced the plaintiff or his agent to believe that his cotton had been insured, when, in fact, it had not, and if so believing, the plaintiff had not insured, and the cotton was lost, as alleged by plaintiff, said defendant became liable to plaintiff, and the measure of the liability was the value of the cotton believed to be insured at the time the same was lost, with interest thereon to the time of the trial.</p> <p>To which charge defendant excepted.</p> <p>The Court, at the request of defendant, charged the jury:</p> <p>“If Rust was agent of other companies as well as defendant’s, and the proof does not show that Rust was dealing with complainant as agent of defendant, complainant cannot select out of the several companies represented by Rust the Underwriters’ Agency, and so fix the liability on it, rather than some other company which Rust represented.”</p> <p>' Upon these charges and evidence a verdict was rendered against the Underwriters’ Agency for $13,015 00.</p> <p>Defendant moved for a new trial, because the Court erred in its charge, because the verdict was contrary to the law, as given in charge, and without evidence to support it. A new trial was refused, and defendant excepted.</p>

New trial. Evidence. Martin brought case against Taylor for malicious prosecution, claiming $2,000 00 damages. The defendant pleaded not guilty. Plaintiff introduced an indictment charging him with having enticed away laborers in the employment of defendant, upon which appeared his name as prosecutor. J. T. Patterson, one of the grand jury who found the true bill, testified that the defendant was examined before said jury as the prosecutor.

Dormant judgment. Execution. Entry. Judgment was rendered in favor of plaintiff against defendants in the Inferior Court of Muscogee county, at the September term thereof, 1862, to-wit: on the 3d day of September, 1862, for $350 00, principal, besides interest and cost.

<p>Illegality. Service. Judgment.</p> <p>For the facts of this case, see the decision.</p>

<p>Contracts. Master and servant.</p> <p>This case is sufficiently reported in the head-note.</p>

Homestead. Year’s support. Administrators and executors. This case arose upon a rule against R. P. Cook, sheriff of Jones county, issued at the instance of William A. Huff, requiring said officer to show cause why he should not pay over to said Huff the principal, interest and costs due upon an execution in favor of said movant against one Leroy Singleton.

Statute of limitations. Gray, as executor of Nancy T. Parrish, deceased, brought complaint to the April term, 1872, of Jones Superior Court, against Joshua Harris and Arthur Harris, on a note made by said defendants on December 2d, 1862, whereby they promised to pay to the plaintiff, on December 1st, 1864, $1,445 00, with interest from date.

New trial. To give a detailed report of this case would illustrate no principle of law. The facts are sufficiently set forth in the decision. The evidence strongly preponderated against the defense sought to be sustained.

<p>1. Where H. is indebted to S., and to secure him for the debt due, and for a further advance of money made by him to H., H. and his wife, with the approval of the Ordinary, convey the homestead which had been set apart for the benefit of the family of H. to the creditor, and he, at the same time, takes the notes of the husband for the debt, and executes a bond to make titles to him for the same land, upon the payment of the notes:</p> <p>Held, That the whole transaction constitutes nothing more than a mortgage, and the rights of the beneficiaries of the homestead arising out of these facts can be set up by the husband in an action against him by the creditor to recover the land.</p> <p>2. The fact that the creditor and the husband, on the maturity of the notes, agree between themselves, without the consent or approval of the wife or the Ordinary, to cancel the bond and the notes, does not deprive the wife and children of their rights under the agreement.</p>

<p>A factor or merchant holding a lien under section 1977, Irwin’s Revised Code, when the maker thereof is dead, may, in order to preserve his lien and such priority as he may be entitled to, if any, in the distribution of his debtor’s estate, make the affidavit required bylaw for its enforcement within twelve months after the qualification of the representative of the estate, but there can be no levy of the execution issued thereon until after the expiration of the period of exemption from suit, allowed executors and administrators.</p>

Factor’s lien. Delivery. Steamboat lien. Venue. J. E. DeVaughn levied an execution, based on a factor’s lien for supplies furnished to R. D. Brown, with which to make a crop for 1872, dated on the 17th of February of that year, amounting to $180 00, and $20 00 for counsel fees, on three bales of cotton. The cotton was claimed by Hardeman & Sparks. The plaintiff introduced in evidence the proceedings upon which his execution was based, the execution and the levy.

Administrators and executors. Amendment. Statute of limitations. Trusts. This case has been before the Supreme Court at a previous term : See Ardis, trustee, vs. Printup, administrator, et al., 39 Georgia Reports, 648. The bill is there fully reported. All the facts necessary to an understanding of the issues here presented, are incorporated in the decision.

Factor’s lien. Attorney’s fees. J. F. & M. Hamilton brought complaint against James M. Rodgers as maker, and Adams, Washburn & Company as indorsers, for the sum of $592 30, besides interest, and $40 00 as counsel fees, on the following instrument: “$592 30.

Railroads. New trial. Carrie E. Burt brought ease against the Atlantic and Gulf Eailroad Company for $200 00 damages, alleged to have been sustained on account of the killing of a horse belonging to her by said defendant, through the careless and negligent running of its engines and cars. The defendant pleaded the general issue. The following evidence was introduced: FOR THE PLAINTIFF.

Eule against sheriff. Practice in the Supreme Court. A rule nisi issued at the instance of James W. Armstrong, against H. A. Lee, sheriff of Macon county, as follows: “James W. Armstrong vs. Shadrach Ware, security. “Fi. fa. in Macon Superior Court. Principal, $569 43. Interest to Map 9th, 1864, $132 86. Costs, $15 00. “ The Same vs. Same. “Principal, $434 46. Interest to March 20th, 1866, $120 03.

Injunction. Levy. Judgment. Contribution. P. M. Compton & Company filed their bill against- Sarah G-.

<p>Factors’ lien. Sale. Warranty.</p> <p>F. W. Sims & Company foreclosed a factor’s lien against John T. & James Howell for $120 00, given for guano furnished them with which to make a crop for the year 1871. The defendants filed an affidavit of illegality to the lien fi. fa., setting up that the guano purchased was utterly worthless.</p> <p>The plaintiffs showed the sale of the guano, and proved by W. T. Seward, a manufacturing chemist, and by A. Means, the State Inspector of Fertilizers, that the Eureka guano, bearing the same brand as that sold to the defendants, contained valuable fertilizing ingredients. Their evidence was very strong, giving analyses of the elements composing the Eureka guano. Nine other witnesses were introduced, who stated that they had purchased such guano and had used it to great advantage.</p> <p>The defendant, John T. Howell, and ten witnesses testified as to the worthlessness of the fertilizer. Also, that they had been sued for the amounts purchased by them, and were defending; that the spring was very wet and the summer exceedingly dry.</p> <p>The jury returned a verdict for the defendants. The plaintiffs moved for a new trial, because the verdict was contrary to the law and the evidence. The motion was overruled, and the plaintiffs excepted.</p>

Jurors. 'Verdict. New trial. Equity. Practice in the Superior Court. This is the third time this case has been before this Court. It will be found fully reported in 37 Georgia Reports, 205, and in 45 Ibid., 644.

Injunction. Absalom Parker filed his bill against Obediah Green, his wife, Mary Green, and his son, Robert Green, making substantially the following case: In the year 1872, complainant purchased from one Henry J. Taylor, at and for the sum of $400 00, lot of land two hundred and twenty, in the twenty-eighth district of Sumter county.

Railroads. Venue. Pleadings. Corley & Dassett brought complaint in Newton Superior Court against the Georgia Railroad and Banking Company on an account for freight overcharges, with interest thereon. The declaration was in the ordinary statutory form of complaint on an account, referring to a bill of particulars thereto attached. It contained no allegations as to where the freight contracts were made or to be performed.

<p>1. Section 1585 of Irwin’s Revised Code, requiring persons who shall sell by weights and measures to have their weights and measures marked as correct by the clerk of the Inferior Court, (now the Ordinary,) and in default of such marking, providing that such persons shall not collect any account, note or other writing, the consideration of which is any commodity sold by their weights and measures, is an Act fixing a penalty, and is not to be extended beyond its terms.</p> <p>2. Where a lot of paper and paper bags was shipped to the plaintiff by railroad, and upon its receipt, it was weighed upon scales not marked, but which were proven to be correct, and the paper was found deficient in quantity, as described in the railroad receipt, it was not error to admit the evidence of the weighing, notwithstanding the failure to procure the marking of the scales.</p> <p>3. If illegal evidence be admitted by a Justice and no objection be made at the trial, both parties being represented by counsel, the admission of the evidence is not a good ground for a certiorari.</p> <p>4. The evidence in this case was sufficient to justify the judgment of the Justice.</p>

<p>Illegality. Mortgage. Practice in the Superior Court.</p> <p>Eor the facts of this Case, see the decision.</p>