Volume 51 — Georgia Reports

<p>County matters. Ordinary. Taxes. Equity. Judgment. Before Judge James Johnson. Muscogee Superior Court-May Term, 1873.</p> <p>For the facts of this case, see the decision,</p>

<p>1. Although a husband purchases property with money belonging to his wife, the presumption is that the property belongs to the husband, until the contrary is shown.</p> <p>2. Where the husband transfers to his creditor a promissory note before its maturity, which belongs to and is payable to bis wife, or bearer, and the wife sues the creditor in trover for thefnoie — it was not error for the court to refuse to charge the jury, a written request of plaintiff — that the,transfer did not divest the title of the note. The request should have contained the qualification that the jury should believe from the evidence that defendant had notice that the note was the property-of the wife.</p> <p>3. Where there is no error in what the court did charge, or in the refusal to charge the speeial requests made, and there is no motion for a new trial, this court will not grant a new trial on the ground that the court below failed to charge on certain points which the losing party claims were favorable to him, although under the evidence such further charge would have been proper.</p>

<p>1. Where the question at issue was, whether the conveyance of a tract of land by a father who was in insolvent circumstances, to his son, for an alleged consideration, was made for the purpose of hindering and delaying his creditors, the possession by the father after the alleged sale was a badge of fraud.</p> <p>2. -If the deed was made for the purpose aforesaid, and it was taken by the son knowing such intent, then it was void as to the creditors of the father.</p> <p>3. The ability of the son to pay the purchase money for the land, before and at the time of the purchase, was a material circumstance for the consideration of the jury.</p>

Administrators and executors. Distribution. Advancement. Before Judge James Johnson. Talbot Superior Court. September Term, 1873. Martha A. Crawford, one of the heirs-at-law of John Bransford, deceased, cited William D. Bransford, the administrator upon his estate, to appear before the ordinary for a settlement. Judgment was rendered in favor of the petitioner for $800 00, whereupon the defendant appealed.

<p>Injunction. Trespass. Before Judge Hall. Upson County. At Chambers. January 24th, 1874.</p> <p>Peter Walker and Marlin Brown filed their bill against David K. Walker, making this case: They had been tenants of defendant during the year 1873, and were due him twenty-one bales of cotton for rent. This had not been paid because it had been held up under process of garnishment, served upon the complainants at the instance of creditors of the defendant. They had rented the same farm from him, known as the Grant place, for the year 1874. Defendant had nevertheless sought to remove them as tenants holding over, but they had stopped such proceeding by making a counter-affidavit and giving bond as required by law. He had also levied a distress warrant for the aforesaid rent on twenty-five bales of cotton and four hundred bushels of corn, which they have met as prescribed by law. He now denies that he ever rented to them the aforesaid place for the year 1874, and is interfering with the rights and privileges of complainants by menaces, threats, etc. He has driven away the hands of complainants, has locked up some of their houses, and is using every endeavor to drive them off of the place. If he is permitted to proceed in his lawless course by keeping the hands of complainants from the field, he will subject them to irreparable loss and damage. He is totally insolvent. Pray the writ of injunction.</p> <p>The defendant showed for cause fhat the complainants had a complete remedy at law; admits that they were his tenants during the-year 1873, but denies any contract for the year 1874. '</p> <p>The bill and answer were respectively sustained by numerous and conflicting affidavits.</p> <p>The chancellor ordered the injunction to issue upon complainants’ giving bond and security, conditioned to pay to defendant whatever amount of rent might be recovered against them, provided the issue on the proceeding against them as tenants holding over should be determined in his 'favor. To this judgment defendant excepted.</p>

<p>1. A witness may give his opinion of. the sanity of a testator, if .he state the facts on which that opinion is founded.</p> <p>2. Under this rule, the opinion of the witness Peek, as to the condition of testator’s mind when he last saw him, was admissible, for he gives the facts on which he rests that opinion. The same may be said of the opinion expressed by caveatrix in her testimony.</p> <p>3. But this does not entitle the witness to give an opinion “ that testator was in a condition to be easily influenced,” or “that he seemed to be under the influence of W. altogether,” or to state, “he cannot say what the full influence of W. was, although he (the testator) seemed to be obedient to the commands of W.” The witness should give the facts on which these statements were based.</p> <p>4. The remark made by caveatrix in her testimony: “ I did not know that W. was the first, and probably by far the largest legatee in the will,” was not admissible to prove that W. was such a. legatee, but it was competent for her to give it as a reason, and for what it was worth, as such, why she had changed her purpose, as indicated by former declarations of hers-, not to contest the will.</p> <p>5. On the trial of an issue of deoisavit vel non, the admission of an executor before qualification is admissible to impeach the will, when such admission is in reference to the conduct or acts of the executor as to some matter relevant to the issue.</p> <p>6. Parol evidence of the declarations of a testator, expressing dissatisfaction with his will, and made shorily after its execution, such as “I have done something I ought not to have done ; I have made my will, and did not make it as I wanted to ; I know I did wrong, but I could not help it. Lord God Almighty, who ever heard of such a will, but I can’t change it,” is admissible, not to prove the fact that fraud was practiced upon him, or that undue influence was actually exercised, but as tending to show the state of testator’s mind, and that he was in a condition to be easily influenced.</p> <p>7. There having been illegal testimony admitted upon the point of undue influence, and the verdict setting aside the will having been rendered by the jury especially upon that ground, and a new trial having been granted by the judge who tried the case, we think it proper that all the issues presented in the case should be submitted to another investigation.</p>

<p>1. The only legal discretion which the Superior Court has to set aside a verdict because it is contrary to the testimony, is in a case where, the verdict is decidedly and strongly against the weight of evidence, although there may appear to be soriie slight evidence in favor of the finding.</p> <p>2. In an action for a tort, the question of damages being one for the jury, the court should not interfere with the verdict, unless the damages are either so small or so excessive, as to justify the inference of gross mistake or undue bias.</p>

Trusts. Husband and wife. Deed. Before Judge James Johnson. Talbot Superior Court. September Term, 1873.

<p>Trusts. Husband and wife. Marriage settlement. Before Judge Schley. Chatham Superior Court-. May Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Witness. Contracts. Consideration. Equity. Specific performance. Before Judge Hopkins. Fulton Superior Court. April Term, 1873.

Common of pasturage. Trespass. Before Judge Knight. Union Superior Court.

Insurance. Equity. Estoppel. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.

<p>On January 24fch, 1867, S. executed his mortgage deed upon a lot in the cily of Atlanta to G., to secure the payment of a promissory note for $2,822 50. The mortgage was foreclosed, and the execution issuing therefrom levied upon the property mortgaged. After the foreclosure, S. had snid lot set apart to him as a homestead under the act of 1868, and, with the approval of the ordinary, as required by said act, sold the same to M. for $1,750 00, the value of the lot. M., under the decisions of a majority of this Court, believing his title good, placed improvements on said lot to the value of $2,500 00. He claimed the property, and filed an equitable plea, praying that he might be allowed the value of his improvements, the Supreme Court of the United States having declared the act of 1888 unconstitutional as against contracts existing before its date :</p> <p>Held, that the entire property with improvements should be sold, and the value of the lot at the time of the sale to the claimant, with interest thereon, paid to the mortgage fi. fa., and the balance to the claimant.</p>

Award. Evidence. Jury. Practice in tbe Superior Court. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1873. This is the second time this case has been before the supreme court: See 47 Georgia Reports, 10. , Barton IT. and Nicholas Overby filed their bill against'Early W. Thrasher for the specific performance of an award, alleged to have been rendered upon an arbitration between them.

<p>Garnishment. Judgments. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Insurance. Conditions. Before Judge Schley. Chatham Superior Court. January Term, 1873. ' / J. H. & ~W. Creighton instituted suit against the Liverpool, London and Globe Insurance Company on two policies of insurance, one for $10,000 00, and the other for $5,000 00, claiming as due them for damage by fire, and from said defendant’s having taken possession of the insured property at said fire, and having failed to return the same, $7,131 76, besides interest.

Partnership. Garnishment. Practice in the Superior Court. Amendment. Before Judge Gould. City Court of Augusta. August Term, 1873. Branch, Seott & Company obtained judgment against Robert M. Adam, May 26, 1873. Upon the judgment garnishment process was sued out, July 10, 1873.

<p>Slander. Attorney at law. Privileged communications. Pleading. Evidence. Before Judge Rice. Clarke Superior Court. February Adjourned Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Account. Evidence. Before Judge Bartlett. Morgan Superior Court. March Term, 1873. W. S. Stetson & Brother brought complaint against George R. Jessup on an account for $282 95, with interest, attaching to their declaration a bill of particulars. The defendant filed several pleas, unnecessary to be set forth. Pending the litigation, the defendant died, and George G. Crawford, as administrator de bonis non cum testamento annexo, was made a party in his stead.

Continuance. Attorney. Absence of counsel. Before Judge Rice. Clarke Superior Court. August Term, 1873. The defendants in error brought suit against the plaintiff in error on a promissory note for $2,098 88, returnable to February term, 1870, of Clarke superior court. At the appearance term the defendant filed a plea to the merits of the action, and thus the parties were at issue.

<p>Judicial sale.' Sheriff. Deed. Practice in the Superior Court. _ Before Judge McOutchen. Polk Superior Court. October Adjourned Term, 1873.</p> <p>'On the first Tuesday in April, 1861, a lot in Cedartown was sold under an execution in favor of Emanuel Lyon, as administrator of A. G. Love, deceased, against Brooks M. Willingham, and is claimed to have been bid off by Frank Lyon, who transferred his bid to Emanuel Lyon, his father. No deed was made by the sheriff, though the purchase money was then paid. At the October adjourned term, 1873, of Polk superior court, Emanuel Lyon, for the use of J. S. Moyes, who held under him, petitioned the court for a rule requiring Ellis W. Clements, the then sheriff of said county, to. show cause why he should not convey said lot to petitioner, by deed, in accordance with said sale. In response to this rule, the sheriff set up that he had been notified by the heirs of Brooks M. Willingham, the defendant in execution, not to execute such deed on account of the illegality of said sale, in this, that the lot was sold by the petitioner, the then deputy sheriff of said county, and bid in by himself.</p> <p>The sheriff and said heirs proposed to prove the aforesaid facts, and others, showing the invalidity of said sale. The court refused to allow said heirs to defend the proceeding on said rule, excluded the aforesaid testimony, and passed an order requiring the sheriff to execute a deed to said lot, as prayed for. To which the sheriff and said heirs excepted.</p>

<p>1. Where complainants make the defendant their own witness by praying discovery, he is bound to relate the whole truth and to explain the entire transaction with which he is charged. All statements in his answer, to this end, are responsive to the bill.</p> <p>2. The court should always confine itself to its appropriate functions on the trial of cases, by an impartial administration of the law applicable to the facts before it, and leave the jury to perform their appropriate functions, without any indication as to what it may think their verdict should be, or what may be its opinion of the evidence, or the credibility of the witnesses.</p>

Equity. Decree. Evidence. Record. Before Judge Schley. Glynn Superior Court. November Term, 1873. To report this case would simply be to repeat the facts recited in the above head-note. The decree objected to was proposed to be taken by the counsel for the first mortgage bondholders of the Brunswick and Albany Railroad Company and certain other preferred claims.

New trial. Before Judge Knight. Gilmer Superior Court. May Term, 1873. P. & J. M. Patterson brought complaint against William Pritchett, Jones Pritchett and Henry Pritchett, as surviving makers, on a note made by said defendants, together with Messer Pritchett, deceased, on December 22d, 1857, payable five years after date to plaintiffs, or bearer, with interest from date, for $500 00, with a credit thereon of $192 00, of date December 13th, 1863.

Contracts. Evidence. Before Judge Schley. Glynn Superior Court. May Adjourned Term, 1873.

<p>1. When the legal title to property is vested in a trustee for infants, who can sue for it, and who fails to do so within the time prescribed by law, so that his right of action is barred, the infant cestui que trusts, who have only an equitable interest in the properly, will be also barred ; but when the legal title is vested in the infants, or cast upon them by operation of'law, then the statute does not run against them during their infancy.</p> <p>2. In order to defeat a prescriptive title for fraud, the claimant’s written evidence of title, under which he went into possession of the property, must be shown to have been fraudulent, within his own knowledge, or notice thereof brought home to him before or at the time of the commencement of his possession.</p>

Criminal law. Verdict. Judgment. Before Judge Bartlett. Baldwin Superior Court. August Adjourned Term, 1873. Arnold was placed upon trial for the offense of assault with intent to murder, alleged to have been committed upon the person of Elliot Flint, on July 29th, 1872, by shooting at him with a pistol. The defendant pleaded not guilty.

Husband and wife. Separate estate. Equity. Parties. Injunction. Set-off. Executors and administrators. Compromise. Before Judge Rice. Jackson county. At Chambers. January 3, 1874. ' For the facts of this case, see tbe decision.

<p>1. A showing for a continuance, on the ground of the absence of a witness by whom the party will “ sustain his plea,” is not, if objected to, sufficiently certain.</p> <p>2. This court will not grant a new trial on the ground of error in the judge in refusing a continuance if it appear, during the progress of the trial, that the witness for who3e absence the continuance was sought was immaterial.</p>

<p>1. Under the charter of the Manufacturers’ Bank of Macon, it had no authority, in the year 18C2, to issue bills intended to be redeemed in Confederate treasury notes, and therefore the ordinance of 1865 is inapplicable to such contracts.</p> <p>2. The bills sued on in this case were issued prior to the passage of the act of November 29th, 1862, authorizing the suspension of specie payment by the banks upon certain conditions, and therefore the defendant can derivé no benefit from it.</p> <p>3. To make a contract illegal as being in aid of the rebellion, as provided by the 17th section of the Yth article of the constitution of this state, it should be alleged with whom the contract was made, and the terms of it, and that it was made with the intention and for the purpose of aiding and encouraging the rebellion, and the consideration therefor should be alleged, so that the court could determine from the facts whether the contract was made with the intention and for the purpose of aiding the rebellion.</p>

Criminal law. Recognizance. Bail. Before Judge Heeschel V.'Johnson. Glasscock Superior Court. 'August Term, 1873.

Mechanics’ lien. Mortgage. Party. Judicial sale. Before Judge Hopkins. Fulton Superior Court. April Term, 1873. ■ Meador & Tumlin brought suit to the October term, 1867, of Fulton superior court, against the Masonic Hall Company of Atlanta, a corporation, for $2,590 40, on an account for cutting, preparing and furnishing stone, and putting up granite front on the masonic hall building.

Criminal law. Assault with intent to murder. New trial. Before Judge Sci-iley. Screven Superior Court. Held: them down until they succeeded in getting up and running off. Abram turned and shot him through the thigh. Lambert then went off in his caft't. He fainted when the doctor cut the ball out. He had passed the parties about one hundred yards when Abram hailed him. They ■were over the fence, in the field.

<p>A writ of error does not lie to this court from the judgment of a county court.</p>

Practice in the Supreme Court. Before the Supreme Court. January Term, 1874. Roach, without having made any motion for a new trial, brought the above stated case to this court upon the following assignments of error: 1st. Because the verdict is contrary to law. 2d. Because the verdict is contrary to evidence. Sd. Because the verdict is contrary to the charge of the court. 4th.

Criminal law. Bail. Before Judge Buchanan. Troup Superior Court. May Term, 1873. Two indictments were pending against William L. Woodall and Priscilla Bacon, for adultery and fornication. Bonds for the appearance of the defendants were given, each in the sum of $500 00, with Godfred Kener as security. The defendants failed to appear, and a scire facias was issued in each case, requiring the security to show cause why his bond should not be forfeited.

<p>New trial. Before Judge Gould. City Court of Augusta. May Term, 1873.</p> <p>Creighton brought trespass against Hewitt for $1,000 00 damages. The defendant pleaded the general issue. The evidence was, 'in substance, as follows :</p> <p>James Creighton, the plaintiff, says : The goods named in the declaration, consisting of clothes, jewelry and money, were left in his room, at the Globe hotel, in the city of Augusta, on or about the 9th of May, 1869, aggregating in value about $700 00. The defendant was the proprietor of said hotel. The door of his room was locked, and no one had keys to it except the defendant and the chambermaids. Plaintiff was the steward of the hotel. On the day above stated he went out into the city on business, became sick and went to his home on Greene street, fell asleep, and not waking until late in the evening did not return to the hotel until the next morning. Policeman Welch informed him that his trunk had been robbed, and was at the police station. Accompanied the policeman to the court-house where the' trunk was, and thence to the hotel. The officer told 'him to be cautious. Went with him to the room, and found all the property gone. Talked to the defendant when plaintiff came down, asked him for his property, and endeavored to explain his absence. The defendant seemed to be mad and would pay no attention to him. The defendant paid him $60 00 and his board per month, for his services. Never had any difficulty with the defendant prior .to this. Left the hotel without provocation from the defendant, and -without his knowledge or consent. Was bound to be at his post, though there were times when he could take an hour or so to go out on the street. Took the keys of the store-room, pantry and of his own room off in his pocket. The defendant had a pass-key to every room in the house. Shortly after his clothes were taken saw some of thém in the privy of the hotel.</p> <p>Louisa Lovell says: Was passing down Ellis street in the night, some years ago, and as she passed the back-gate leading out of the yard of the Globe hotel, saw the defendant open the gate and put out a yellow colored trunk into the street. This was about eleven or twelve o’clock at night.</p> <p>Joseph Reynolds says : Was a policeman in the year 1869. On the night of the 9th or 10th of May, of that year, at a little before twelve o’clock, found a trunk on Ellis street, in the rear of the Globe hotel. Don’t know who put it there. Found by some letters in it that it belonged to the plaintiff. Took it to the police station. It was a brown or yellow colored trunk. It was open.</p> <p>George Washington says: In the year 1869 the defendant sent for him to clean out the privy of the Globe hotel, and to sink it four feet deeper. In the course of his-work found a large bundle in the sink which he took to be the body of some one. Went and brought his drag and pulled up a bundle of clothes larger than he could span with both his arms. Untied it and picked out a silk vest and other clothing. Sent for the defendant and showed him the things. He cursed witness for pulling them out of the sink, pushed them back, and threw in the drag.</p> <p>......"Walters says: Was in the defendant’s employ as a cook in the year 1869. Saw George Washington picking the clothes out of the sink.' Recognized them as belonging to the plaintiff. George was picking them out piece by piece.</p> <p>Wilson C. Hewitt, the defendant, testified as follows: The plaintiff had been in his employ about two years, when, on the 9th or 10th of May, 1869, the day that the Georgia Railroad convention was in session, on going to his dining room to see if dinner was about ready, found him absent. Immediately got a horse and went in search' of him. Heard of him at several places, but did not find him until the succeeding day, when he and the policeman came to the hotel. The conduct of the plaintiff in leaving his hotel in the manner in •which he did subjected him to great inconvenience, as his house was filled with guests to the number of three or four hundred. Hid not have a pass-key to the plaintiff’s room; did not enter his room or remove his trunk therefrom; did nothing with his room on the day after ho left; might have put some one there on the following night, as he was very much crowded. Do not know what became of the trunk or its contents; heard some of the servants say that there "was a hat and coat floating about in the privy; went back and saw them; the hat he recognized as belonging to the plaintiff; did not know that these were a part of the contents of his trunk. Made no effort to recover the trunk or its contents; the plaintiff did not leave it under his control. His house was not entered by a burglar on the night on which the trunk^vas taken, unless the plaintiff may be regarded as such.</p> <p>■The jury found for the plaintiff $704 70, with interest from May 10th, 1869. The defendant moved for a new trial, because the verdict was contrary to the evidence. The motion was sustained, and a new trial ordered; whereupon, the plaintiff excepted.</p>

Novation. Ordinance of 1865. Practice in the Supreme Court. Before Judge Hill. Twiggs Superior Court. April Term, 1873. When this case was called a motion was made to dismiss the writ of error on the ground that it had not been returned to the last July term of the court, as provided by agreement of counsel and order of court. The facts relied upon to sustain such motion were as follows: This case was tried at the April term, 1873, of Twiggs superior court.

Equity. Judgment. Practice in the Superior Court. Trusts. Lien. Before Judge Gibson. Burke Superior Court. May Term, 1873. . James A. Gray obtained a judgment against Carlton T. Belt, in the superior court of Burke county, on the 27th day of May, 1871, for $1,000 00, with interest from the l'8th of February, 1869, and costs of suit. Execution was issued thereon and placed in the hands of the sheriff with instructions to levy on whatever property he could fiud.

Deed. Plomestead. Evidence. Attorney and client. Confidential communications. Before J udge Buchanan. Hall .Superior Court. June Adjourned Term, 1873. James W. Burnside brought complaint against Bird Terry, Bowling W. Field and his wife, Levada Field, for lot of land number forty in the tenth district of the county of Hall. The defendant's pleaded the general issue, and also that the title to said land was in Field and his wife.

<p>■ Criminal law. Demand for trial. Before Judge Buchanan. Troup Superior Court. May Term, 1873.</p> <p>At the May term, 1872, of Troup superior court, an indictment was found against Edmond Moreland and Samuel Watts, for the offense of larceny from the house. At the November term of the same year, a demand for trial in behalf of both of the defendants, was entered on the" minutes. At ■the May term, 1873, the case was called in its regular order and the defendants not appearing, their bonds were forfeited. After the call of the criminal docket was concluded the court announced that no other criminal cases would be called except those in which bills had been found during that term. During the call of cases embraced .in the above exception, defendants stated to the solicitor general that they would like to be tried. Subsequently, on the last day of the term, after the juries had been dismissed, defendants moved for an order of discharge. The motion was overruled and defendants excepted-.</p>

<p>Certiorari. Damages. Before Judge Hall. Newton Superior Court. September Adjourned Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Relief Act of 1868. Scaling ordinance. Judgments. Practice in the Superior Court. Before Albert H. Cox, Esq., Judge pro hac vice. Carroll Superior Court. October Term, 1873. This is the second time this case has been before this Court: See 40 Georgia Reports, 501. The facts were as follows: Martin, as administrator, brought complaint against Bonner to the October term, 1866, of Carroll superior court, on a note dated December 27th, 1862, for .$1,163 32.

New trial. Practice in tlie Superior Court. Before Judge Buchanan. Troup Superior Court. November Term,-1872. This case was tried at the November term, 1867, of Troup superior court, aud resulted iu a verdict for defendant. At the November term, 1872, what purported to be a motion for a new trial was called.

<p>Where a bill was filed for the specific performance of a contract, not in writing, alleging that the officers of a certain railroad company, in consideration that the plaintiff would consent that the road should run through his land, without charge against the company for ihe right of way or for damages, if the company would erect a depot on plaintiff’s land and make it one of its stations, and setting forth that the road had been built, and that plaintiff had not claimed or recovered anything for the right of way or for his damages :</p> <p>Held, thatfliere was no such part performance of the contract by either party as authorized a specific performance of this agreement, not in ' writing, in relation to lands or an interest therein.</p>

<p>1. Where, at the second term after the declaration was filed, the couit passed an order allowing the plaintiff further time to perfect service on the defendant, who was a citizen of the county in which Che suit was pending, but had been temporarily absent from the United States, and service was made in accordance with said order, it was error, two years thereafter, when the case was called for trial, to dismiss it for want of service.</p> <p>2. When the attention of the court was called to the case at the second term thereof after the institution of the suit, it would have been its duty to have dismissed it for want of service, unless it had been made to appear that diligence had been exercised by the plain'tiff. •</p>

Indorsement. Principal and security. Before Judge Buchanan. Troup Superior Court. May Term, 1873. The Atlanta National Bank commenced twelve suits against Isaac Wise, as maker, and Robert O. Douglass, as indorser, on twelve notes, each for $100 00, in the justice’s court for the six hundred and fifty-fifth district. Judgments were rendered for the plaintiff, and Douglass appealed to the superior court, where the cases were consolidated.

Service. Waiver. Filing. Judgment. Practice in the Superior Court. Before Judge Schley. Chatham Superior Court. May Term, 1873. J. Peavy & Brothers brought complaint to the May term, 1871, of Chatham superior court, against Ferrill & Weslow, on a note dated March 17th, 1870, due at-sixty days, for $1,500 00. Service was acknowledged, and copy process and time of filing waived, on February 2d, 1871.

Railroads. Evidence. Principal and agent. Before Judge Underwood. Whitfield Superior Court. October Term, 1873. Duggan brought complaint against the East Tennessee, Virginia and Georgia Railroad Company for $15,000 00 damages, alleged to have been sustained by him on November 14th, 1871, when an employee of said defendant, through the negligeuce of his co-employees. The defendant pleaded the general issue.

The date of the filing in office and of service was June 10th, 1873. The remaining facts upon which the motion was based, will, be found in the second head-note.

Parent and child. Distribution. Representation. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. The charge of the court, taken into connection with the facts set forth in the above head-note, reports this case.

Quo warranto. County Court. Clerk. Officers. Before Judge Steozer. Dougherty county. At Chambers. July 17th, 1873. Wessolowski, claiming to be ex offieio clerk of the county court, petitioned the judge of the superior court of the Albany Circuit, for the writ of quo warranto, requiring Gilbert to show cause by what authority he was exercising the duties of the office of clerk of the county court of said county, and collecting the fees and emoluments thereof.

Relief Act of 1868. Tender. Before Jacob Watson, Esq., Judge pro hac vice. Pulaski Superior Court. April Term, 1873. At the April term, 1866, of Pulaski superior court, Thomas Grace i-ecovered a judgment against Philip Pipkin for $214 50 principal, besides interest and costs, on a note made “prior to the year 1860.” Execution was issued' thereon and a levy made.

<p>1. Where no plea of lis pendens is filed, a record showing the pendency of a former suit between the same parties, involving lhe same issue, is inadmissible.</p> <p>2. Where the issue upon trial was whether the defendant, sought to be ejected as a tenant holding over, had, in good faith, abandoned the possession of the premises in dispute at the expiration of his term, and afterwards rented the same from the person under whom he then claimed to hold, or whether he colluded with such person and retained possession in violation of his rent contract with the plaintiff, it was not error in the court to refuse to charge that “ if the defendant quit possession, and after the time had expired, wrongfully took possession, he might be an intruder, but the plaintiff cannot recover in this form of action,”</p>

Practice in the Superior Court. Pleading. Before Judge James Johnson. Marion Superior Court. April Term, 1873. Neal Carter brought complaint against Sarah L. Jernigan* as executrix of Ptolemy Jernigan, deceased, on a promissory note dated March 5th, 1861, for the sum of $794 93. Pou & Little, attorneys, were marked for the plaintiff, and M. H. Blandford, attorney, for the defendant. When said cause was called M. PI. Blandford announced ready for plaintiff.

Criminal law. Verdict. Recommendation to mercy. Before Judge Buoi-ianan. Coweta Superior Court. September Term, 1873. - Stephens was placed on trial for the offense of bestiality, alleged to have been committed on September 2d, 1873. The defendant pleaded not guilty.- The jury found him guilty, and recommended him to the mercy of the court. A motion for a new trial was made because the verdict was illegal. The charge of the court does not appear.

New trial. Before Judge Strozer. Dougherty Superior Court. April Adjourned Term, 1873. Lochrane brought complaint against McLaren on an account for $500 00, for professional services rendered. The record fails to disclose any plea.

<p>Heed or will. Before Judge Kiddoo. Randolph Superior Court. November Adjourned Term, 1873.</p> <p>Eor the facts of this case, see the decision.</p>

Attachment. Lien. Judgment. Continuance. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. The Atlantic and Gulf Railroad Company and the Florida Construction Company sued out attachments against the Jacksonville, Pensacola and Mobile Railroad Company, which were levied upon three steamboats. The boats were sold and the money paid into tlie registry of the court for distribution.

Railroads. Pleadings. Before Judge Harris. Clinch Superior Court. October Term, 1873.

Husband and wife. Equity. Parties. Decree. Before' Judge Knight. Milton Superior Court. August Term, 1873. Charles R. Pate and his wife, Emily Pate, Simeon Frazer and his wife, ...... Frazer, and George W. Chambers and his wife, Mary Chambers, filed their bill against William M. Smith and bis wife, Eleanor Smith, making substantially the following case: Complainants, Emily Pate, Mrs. Frazer and Mary Chambers are the daughters and beirs-at-law of Archibald Bradford, deceased.

<p>To charge upon a point not warranted by the evidence is error.</p>

Taxes. Judicial interference. Execution. Before Judge Strozer. Dougherty Superior Court. April Adjourned Term, 1873. Two tax executions for the use of R. T. Gilbert, tax collector, for the years 1868 and 1869 respectively, the first being for $71 20, and the second for $63 40, against John P. White, were levied upon certain property as belonging to defendant.

Criminal law. Fine. Pardon. Promissory notes. Judgment. Before Judge Underwood. Gordon Superior Court. August Term, 1873. An execution in favor of Josialí R. Parrott against Z. T. Wilson, based on a judgment rendered in Gordon superior court on April 8th, 1867, for $1262 55, principal, with interest and costs, was levied on certain land as the property of the defendant.

Injunction. Before Judge Kiddoo. Terrell county. At Chambers. December 29th, 1873. David Sharpe and Farnham & Sharpe, composed of William W. Farnham and James P. Sharpe, filed their fill against Wright Kennedy and Charles C. Brown, sheriff, upon the following state of facts: On the 27th day of January, 1871, complainants became security for Leroy Brown on a promissory note, of which the following is a copy: “ $800 00.

<p>Constitutional law. Jury. Evidence. Criminal law. Practice in the Supreme Court. Before Judge Strozer. Dougherty County. At Chambers. July 16th, 1873.</p> <p>When this case-was called a motion was made to dismiss the writ of error because the bill of exceptions had never been served upon the solicitor general of the Albany circuit. The papers disclosed that the trial had been had in the county court, and the writ of certiorari sued out thereto. The hearing upon the certiorari was had before the judge of the superior court, at chamber’s, and it is to his judgment that the bill of exceptions was filed. Service was made upon the solicitor of the county court. The motion was overruled, the court enunciating the principle embraced in the third head-note.</p> <p>Eor the facts, see tiie decision.</p>

<p>Mortgage. Before Judge James Johnson. Talbot Superior Court. September Term, 1873.</p> <p>This case arose- upon a rule against the sheriff of Talbot county, at the instance of Moore, Trimble & Company, requiring him to show cause why he did not pay over to a mortgage execution in their favor, certain funds then in his hands, realized from the sale of the mortgaged property. Amongst other causes, the sheriff set up the fact that he liad in his hands an execution based on a mortgage of older date on the same property, in favor of Gardner, Dexter & Company. It was replied that' the mortgage of Gardner, Dexter & Company being on ■ real estate was void, having but one witness.</p> <p>Both mortgages were executed by William Ragland. That to Moore, Trimble & Company recited that the lands therein described were conveyed li with the following reservation and exception, that is to say, saving and excepting the interest previously conveyed by said Ragland to Jane E. Shaw and Gardner, Dexter & Company, by reason of two deeds of mortgage given said Jane E. Shaw to said lots to secure a note for $500 00, and to said Gardner, Dexter & Company, to secure a note to them of $526 92.”</p> <p>Jane E. Shaw seems to have taken no part in the contest. The court held the mortgage of Gardner, Dexter & Company to be invalid on account of its having but one witness, and excluded it from participation iu the fund according to its priority. To which Gardner, Dexter & Company excepted.</p>

<p>Officers. Process. Laborer’s lien. Appeal. Certiorari. Before Judge Chisolm. City Court of Savannah. July Term, 1873.</p> <p>This case is reported in the opinion.</p>

<p>Where the sole exception is to the decision of the Court sustaining a demurrer to a plea, and neither the record nor bill of exceptions sets forth said plea, the judgment will be affirmed.</p>

New trial. Scaling ordinance. Before Judge Hopkins. Fulton Superior Court. April Term, 1873.

<p>1. The question in this case as to the land having been discharged from the lien of the mortgage judgment, on account of the four years’ possession by a bona fide purchaser, comes within the principle of the decision in Akin vs. Freeman, 49 Georgia Reports, 51, even if mortgage judgments are included in the provision of section 3583 of the Code.</p> <p>2. Whether the witness who was rejected by the court, was or was not competent, is an immaterial question in this case, as it does not appear from the record that his testimony could have been of any benefit to the party offering him.</p>

<p>New trial. Damages. Claim. Before Judge Hall. Newton Superior Court. September Term, 1873.</p> <p>For the facts, see the preceding case.</p>

Burglary. Before Judge Pottle. Madison Superior Court. September Term, 1873. George White was placed on trial for the offense of burglary, alleged to have been committed on June 25th, 1873, by breaking and entering the dwelling house of one George L. Rice, with the intent to commit a rape upon the person of one Amanda J. Rice, and by having escaped from said house by breaking out of the same. The defendant pleaded not guilty. The jury found to the contrary.

<p>Charge of Court. Contracts. Pleading. Evidence. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873.</p> <p>Eor the facts of this case, see the decision.</p>

Injunction. Jurisdiction. Venue. Husband and wife. Separate estate. Notice. Before Judge Harris. Pulaski county. At Chambers. October 20th, 1873. This case is sufficiently reported in the opinion. I. The demurrer for want of jurisdiction in the court should have been sustained : Code, 4132 ; 27 Ga., 353. 1st. No question of title to land is involved in the controversy : Smith vs. Bryan, 34 Ga., 53, 61, 62. 2d. No “substantial relief” is sought against King.

Sales. Warranty. Charge of Court. New trial. Before .Judge Hill. Houston Superior Court. May Term, 1873. This case was tried before Judge Cole at the December adjourned term, 1872, of Houston superior court. The motion for a new trial was heard before Judge Hill, the successor of Judge Cole, at the May term, 1873. For the facts of this case, see the decision.

Criminal law. Gaming. Before Judge Hopkins. Fulton Superior Court. April Term, 1873. Porter was placed on trial for the offense of gaming. He pleaded not guilty. The evidence showed that 'at the time charged in the indictment the defendant engaged in a game of “ ten cent faro.” That he had four or five “checks or chips” which he placed on a card as a bet; that these checks each represented ten cents, and would be redeemed by the dealer at that price when presented.

Criminal law. New trial. Before Judge Strozbr. Dougherty Superior Court. April Term, 1873. Peter Hines was placed on trial for the offense of larceny from the person, alleged to have been committed on March 26th, 1870. The defendant pleaded not guilty. The evidence for the state presented the following state of facts: About the time charged in the indictment one Ben Randall attended an auction at Cooper’s store, in the town of Albany.

Criminal law. Evidence. Charge of Court. Jury. Verdict. Recommendation to mercy. Before Judge Hopkins. DeKaib Superior Court. September Term, 1873. Wair was placed on trial for the offense of murder, alleged to have been committed upon the person of Lidwell B. Womack, on November 14th, 1872. The defendant pleaded not guilty.

<p>Where a railroad company retains the trunk of a passenger under its lien for her fare, it is liable for any articles that may be taken therefrom whilst in its possession.</p>

Equity. Parties. Partnership. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. Johnston filed his bill against Preer, making, in substance,, the following case: On April 1st, 1856, complainant, James K. Eedd, WilliamEedd, Jr., and defendant, formed a partnership under the-name of Eedd, Preer & Company, for the purpose of doing; a general grocery and commission businsss in the city of Columbus. They were equal partners.

<p>1. It does not necessarily follow because the sheriff would be liable under the law in an action on the case against him, that he would be liable to an attachment for contempt of court. The latter proceeding would depend on the good faith of his conduct in view of the circumstances under which he acted, of which, the court is to judge.</p> <p>2. The question made by the affidavit of illegality being one of doubt and difficulty for even judicial officers t.o decide, it was noterror in the court to decline to render a rule absolute against the sheriff for refusing to disregard it.</p>

<p>An instrument in the following form, to-wit: ‘‘July 8, 1871, I hereby subscribe for one share of the capital stock of the North and South Railroad Company of Georgia, and hereby own and acknowledge myself indebted to said company in the sum of $100 00, payable to the order of said company on demand; provided the same is not to be paid, or any part thereof, until said road is graded from Columbus, Georgia, within one mile of the court-house in Hamilton, Georgia, within one year from date,” is an agreement to pay to the company $100 00 on demand, after the prescribed conditions are fulfilled, and not an agreement to pay what may be the market value of a share of the stock.</p>

<p>Promissory notes. Indorsement. Estoppel. 'Verdict. New trial. Before Judge Gibson. Warren Superior Court. April Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

. Judgment. Execution. Illegality. Before Judge James Johnson. Harris Superior Court. October Term, 1873. James G. Smith, for the use of Edwin M. Hines, brought complaint against “Elizabeth Emory, executrix of Samuel Emory, deceased,” on five promissory notes dated March 12th, 1861, due December 25th, next thereafter, payable to plaintiff bearer, and each for the sum of $50 00.

<p>Garnishment.. Banks. Deposit. Cheek. Before Judge James Johnson. Muscogee Superior Court-. November Term, 1873.</p> <p>Mayer & Lowenstein brought complaint against McKee Brothers for $375 26, balance due on a promissory note, dated May 3d, 1867, with interest from September 6th, 1867. Pending suit, to-wit: on March 11th, 1869, process of garnishment was served on the Chattahoochee National Bank. Judgment was obtained at the November term, 1870, on the original cause of action against the defendants. On December 5th, 1873, the garnishee answered, admitting an indebtedness to John G. McKee, a member of the firm of McKee Brothers, at the time of the service of garnishment, of $8 47, which sum, together with $2 48 interest, it paid into court. This answer was traversed. Upon the trial of the issue thus formed, the evidence made, in substance, the following case:</p> <p>On March 11th, 1869, the date of the service of process of garnishment, the books of the bank showed to the credit of John G. McKee $8 47. Subsequent to said service there were divers others credits'amounting to $305 51. These various deposits were made to meet checks which he had drawn against the same. The bank subsequently paid said checks. As each deposit was made McKee would slate that it was for the purpose of meeting some check which he had drawn. The account was kept in this manner merely as a “ memorandum.”</p> <p>The. court charged the jury, “that if the evidence in this case showed that these several amounts, appearing to the credit of McKee, since the service of said summohs of garnishment, had been deposited by him under an agreement that they were to pay certain checks drawn against said deposits, and if the bank had so paid out said amounts to the parties holding said checks, it was only liable for the $8 47, with the interest, admitted to be due.”</p> <p>The jury returned a verdict for the plaintiffs for $8 47, with interest from March 11th, 1869.</p> <p>Plaintiffs excepted to said charge, and now assign the same as error.</p>

Peddlers. License. County matfers. Before Judge Bartlett. Putnam Superior Court. September Term, 1873. Howard & Soule instituted suit against David II. Reid and James L. Wilson, for a horse, wagon and harness, and two sewing machines. The declaration contained two counts, one in trespass and the other in trover. The damages were laid at $2,000 00. The record fails to disclose any plea by the defendants.

Promissory notes. Statute of limitations. Before Judge Niddoo. Randolph Superior Court. May Term, 1873. Sintha A. Fountain brought complaint against Willoughby Jordan and O. II.

New trial. Before Judge Andrews. Oglethorpe Superior Court. October Term, 1872. On April 28th, 1869, an execution in favor of William M. Lane against John W. Cunningham for $126 44 principal, with interest and costs, based upon a judgment recovered at October term, 1862, of Oglethorpe superior court, was levied ■ on a tract of land as the property of the defendant. A claim to the same was filed by Cunningham, as the guardian of Robert J. Fleeman.

<p>(Trippe, J„ did not presido in this ease on aceount of relationship to one of the-parties.)</p> <p>1. Where cotton was stored with the defendants as warehousemen, and the houses containing the same were seized by the military authorities of the Confederate States, to be used as hospitals, and the cotton thrown into the streets, where it was seen by one of the defendants, and the facts show a strong probability that it was also seen by the plaintiff, and the court charged the jury that though the cotton had been thrown out of the defendants’ house by the vis major, yet if the defendants could, by the exercise of ordinary care, have recaptured and taken care of it, they were liable, and that the measure of damages was the value of the cotton at the time of the demand:</p> <p>Meld, that under the facts this was error. The judge should have qualified this charge by adding, unless the plaintiff knew, or had good reason to believe that his cotton or a portion of it was thrown out by the military authoritcs, in which ease, if he could have saved it by the exercise of ordinary care, the defendants would not be liable, and that the jury, in determining the question of ordinary care, were to take into consideration the situation of the deféndants and their ability or want of ability, to exercise ordinary care in the matter.</p> <p>2. If the defendants abandoned the care of the cotton when it was thrown out of their buildings and were guilty of want of ordinary, care in not retaking it, the measure of damages is the value of the cotton at the time of the abandonment and not at the time of the demand.</p>

<p>Administrators and executors. New trial. Equity. Discovery. Amendment. Order of argument. Before Judge Pottle. Lincoln Superior Court. October Term, 1873.</p> <p>Henry Ferguson, for himself, and as next friend of his minor brothers, Davenport and Socrates Ferguson, filed his bill against Socrates G. N. Ferguson, as executor - upon the state of John Ferguson, deceased, making, in substance, the following case:</p> <p>John Ferguson departed this life about February 17th, 1863, leaving a will, by the fourth item of which he bequeathed to complainant and his said two minor brothers (his grand-children,) a joint legacy of $3,000 00, in equal parts to each, to be set aside for this purpose out of -his estate, as soon as the debts and expenses of the same shall have been paid. By the fifth item, the testator directed the sale of such of his personal and real property as might be necessary for the payment of his debts and said joint legacy, in the event that the sale of his perishable property should prove insufficient for that purpose. The will was admitted to probate, letters testamentary issued to defendant, and he took possession of the estate, consisting of lands and personalty, amounting to about $25,000 00 in value. The defendant, after selling a portion of the perishable property and paying the debts of the estate, in violation of the jarovisions of the will, in the month of November, 1863, proceeded to a division in kind of the lands and negroes between himself and his sister Elizabeth Flannegau, the residuary legatees. The hire of the negroes for the years 1863, 1864 and 1865, amounted anuually to $250 00. The rent of the land for the same years, and until the month of November, 1866, when it was sold by the defendant, was worth $250 00 per annum. These sums are assets in the hands of the defendant for the payment of debts and legacies, and are not the property of the residuary legatees. Complainant and his said minor brothers have never been paid said legacy. The aforesaid division of property was an assent to the legacy and an admission of assets. Prayer, that an account be had, and that a decree be rendered for the payment of the same, etc.</p> <p>The defendant presented the following facts in his answer :</p> <p>Denies that in November, 1863, he proceeded to a division in kind of the lands and negroes of the estate, between himself and his sister Elizabeth Flannegan, after the payment of all the debts, but alleges the contrary to be true, that the division was made under an express agreement between himself and Elizabeth Flannegan, that the property was to be held subject to the unpaid debts of the estate and the legacy bequeathed to complainant and his two minor brothers. The legacy was not paid at the time appointed by the will, for the reason that the currency of the country was then almost entirely worthless, and defendant having been appointed trustee for the said legatees, did not consider it right or just to set aside said legacy in such currency which many of the creditors were refusing to receive. He hoped and Believed that the time would come when the land and negroes could be sold for good currency, and an amount realized sufficient to pay the debts, the legacy to complainant and his brothers, and to leave a residuum. Contrary to his expectations a large portion of the estate was lost by the emancipation of the negroes. After the termination of the war he sold the said lands, and appropriated the proceeds thereof to the payment of the debts of the estate. On account of the scarcity of money in the country, the sale was not as favorable as he had anticipated, and he advanced money and property of his own in the settlement of said debts. All of the property of the estate which came into the hands of the defendant, has, in good faith, with the exception of the negroes, who were emancipated, been applied to the satisfaction of the debts.</p> <p>To the answer were attached inventory, returns, etc.</p> <p>The complainants, by an amendment, made Thomas P. Harmon, Elizabeth Flannegan, and Isaiah Willis, purchasers of said land, parties defendant, alleging collusion with the executor, etc. The answers of these defendants set up, in substance, the same defense presented by the answer of the executor, also improvements placed on the property, the good faith of their purchase, and the absence of all fraud and collusion.</p> <p>The complainants again amended his bill by surcharging and falsifying the accounts of the executor as appended to his answer. To this the executor filed an amended answer, unnecessary to be set forth.</p> <p>Neither the bill, nor any of the amendments, contained any waiver of discovery.</p> <p>When the case was called, counsel for the complainant moved to strike so much of the answers of the defendants as sought to qualify and limit the division of the property among the residuary legatees to a mere temporary arrangement, without vesling -in them the title. Also to strike from said answers the plea of plane administravit and all averments in support of the same, as being irrelevant, the division of the property having been admitted. Also, to strike the amended answer of Socrates G. N. Ferguson upon the ground that it was not based “ on the necessary preliminary affidavit.”</p> <p>The three motions were overruled and complainants excepted.</p> <p>The court permitted such portions of the answers of the defendants as explained the alleged division of the land and negroes in November, 1863, to be read in evidence to the jury, as responsive to the bill, and complainant excepted.</p> <p>The complainants introduced testimony. The defendants relied entirely upon their answers. The court awarded the concluding argument to the defendants, and complainants excepted.</p> <p>The evidence is omitted, as unnecessary to an understanding of the decision.</p> <p>In reference to the division of the property between the residuary legatees, in November, 1863, the court charged the jury as follows:</p> <p>“I charge'you, that if you believe that the parties to this division, afterwards, in 1866, voluntarily surrendered the land to the executor to be sold in due course of administration, and if it was sold, and fairly sold, in open market, according to law, the executor is not responsible for this part of his devastavit, though the evidence should satisfy you that he did assent to the legacy, so as to vest the title in himself and co-rcsiduary legatee. If he did do wrong, that wrong could be cured by a surrender of the land for sale to pay the debts and this legacy.”</p> <p>To this charge complainants excepted.</p> <p>The jury found for the complainants $690 50, with interest from November, 1866, against Socrates Gr. N. Ferguson. No motion for a new trial was made.</p> <p>Error is assigned upon each of the aforesaid grounds of exceptions.</p>

<p>[Tkippe, J., having been of counsel, did not preside in this case.]</p> <p>1. 'Where a contract between a railroad company and contractors provided that the chief engineer of the company should be the inspector of the work, and determine when the contract had been complied with ; that all disputes and differences should be adjusted by him, and his decision should be conclusive without further recourse or appeal ; that should the work, in the opinion of the engineer, not progress in such manner as to insure its completion by the time stipulated, the said engineer, after giving ten days’ notice, might proceed to have the work executed by hiring men, or by sub-contracting such portions thereof as he might deem necessary to insure its completion, at the expense of the contractors :</p> <p>Held, that said engineer was made the arbitrator of the rights of the parties under the contract, and his decision was as conclusive and binding as the award of any other arbitrator, and could only be attacked for fraud or some other ground of illegality recognized for that purpose.</p> <p>2. If the engineer failed to give the ten days’ notice to the plaintiffs, as the work was progressing, prior to the time at which it was to be completed, and the company failed to avail itself of the privilege which it had, by the terms of the contract, to insure the completion of the work by that time, and allowed the plaintiffs to proceed with the work under the contract, making monthly estimates therefor, and if, when the work was completed, the engineer made a final estimate of the work, and if, in making such final estimate, he certified that it was finished according to the contract, with the exception of certain specified deductions made therein, then such acts and conduct on the part of the defendant would, in contemplation of the law, he a waiver of any claim for damages against the plaintiffs, under the contract, for not completing the work by the time stipulated therein, and the defendant would be estopped from claiming damages therefor.</p>

Injunction. Verdict. Before Judge Buchanan. Troup Superior Court. November Adjourned Term, 1873. Thomas Oneal filed bis bill against Reuben J. Butt, making substantially the following case: At the May term, 1872, of Troup superior court, the defendant made application for the partition of certain really and personalty, in which Hilliard Oneal, Edward F. Culver and complainant were interested.

<p>1. An administrator de bonis non can sue a creditor of an insolvent estate for the recovery of what may have been paid him by a former representative of the estate, beyond such creditor’s pro rata share of the assets.</p> <p>2. As it appears doubtful from the record what was the amount of assets in the hands of the present representative for the payment of debts, and the inventory returned by him showing, without further explanation than is contained in the evidence, that a larger credit should have been allowed the defendant below than the jury gave him, we do not think the court erred in granting a new trial; nor do we feel authorized under the evidence to order any specific amount to be remitted from the verdict.</p>

Pleadings. Bond «for titles. New trial. Before Judge Buchanan. Troup Superior Court. November Term, 1872. Croft brought complaint against Clark on two promissory notes, each dated May 1st, 1869, one for $1,250 00, payable to A. B., L. L. and G. N. Croft or bearer, on the first day of December next after the date thereof; the other for $450 00, payable one day after the date thereof, to the same payees or bearer. Upon the last note were credits to the amount of $300 00.

<p>Partnership. Garnishment. Judgment. Lien. Purchaser. Before Judge Hall. Newton Superior Court. September Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

New trial. Criminal law. Riot. Immaterial error. Before Judge Stkozbr. Mitchell Superior Court. May Adjourned Term, 1873. Rachels was jointly indicted with one John Jones for the offense of riot, alleged to have been committed on October 21st, 1871. At the November term, 1872, Jones was tried and acquitted. At the May adjourned term, 1873, when the case against Rachels was called, he moved to quash the indictment on the ground that he could not, by himself, commit a riot.

<p>Charge of Court. Prescription. Trespass. Damages. Before Judge Schley. Chatham Superior Court. January Term, 1872.</p> <p>Benedict Bourquin brought case against the Savannah and Ogeechee Canal Company, claiming $20,000 00 damages, upon the following statement of facts :</p> <p>He had been for many years the owner, and in the actual possession, of a plantation in the county of Chatham, through which is constructed the Savannah and Ogeechee Canal. Before and during the war, he had planted rice on about seventy-five acres of the land. His planting operations were suspended after the capture of Savannah, until 1868. In the spring of that year he resumed his planting, or attempted to do so, hiring hands, building houses, buying mules, utensils and implements, expending therein about $3,500 00. He found, however, upon entering more fully on his work that owing to certain leaks and breaks in the canal bank, and on account of a want of repair of said canal, the water from the same overflowed his fields and prevented him from preparing his land for cultivation, and compelled him to give up the hope of making a crop. He, however, called the attention of the president of the canal company to the overflow, and requested that it be put in repair and the overflow stopped. His demands were unheeded, and, although he had repaired Iiis own dams, and the dams that at all times before and during the war had served to keep back the waters of the canal, and had used all the precautions that heretofore had been sufficient to protect him, he was unable to prevent the overflow, and finding it impossible to plant his land, and his repeated applications for relief to the company being unheeded, lie brought his action for damages. The defendant pleaded not guilty.</p> <p>The evidence was, substantially, as follows :</p> <p>Gugie Bourquin sworn, says: Iiis father had been in possession of the lands for forty years before suit brought. The principal crop planted on the place was rice. In 1868 his father prepared to plant these lands, buying mules, farming utensils, building houses, etc. Nothing planted on account of the water running from the canal. Reported the condition of the land and the water to Mr. Blair, the president of defendant. He gave him no satisfaction. Several culverts on the canal. One mile above the plantation of plaintiff is the eight mile lock. On this level the water is six feet higher than on the adjoining level. It overflows at the lock and runs through the swamp and a culvert under the canal, on to the rice field. Bought three mules at $150 00 each; cost of feeding them was about $15 00 or $20 00 per month; hire of hands to take care of them $20 00 per month and rations. Had eleven hands at work that season at thirty-five cents a day and rations; made arrangements with other hands, but as they did no work, paid them nothing. The plantation could not have been covered with tide-water. The value of the place not overflowed would be about $10,000 00. Would give $5,000 00 himself. Seventy-five acres of rice land under bank. Such land rents for about $10 00 an acre per annum. Of the three mules bought, plaintiff has two now. One was sold for $100 00 or $150 00. The other two have been used in ploughing and working the place. Two or three of the negroes remained during the season; the rest went away. Some of them were paid, but cannot say how many. Those who remained planted corn and several acres of rice on the high land, and also planted some low land. Witness superintended the management of the place for his father for no pay. Mr. Blair’s attention was called to the condition of the water in the latter part of February. Then a part of one square had been burnt off. Witness said he had stopped the break in the check dam three times. It was through this dam that the water came into the rice fields. This was the first attempt to plant rice since the war. The place had been planted up to the time of the surrender. About six or seven hands were on the place at the time of the first break. The ditches had not been.cleaned out. Would have given $5,000 00 for the place. Thinks he paid out for hands, implements, mules and horses, about $3,-500 00. There had been very heavy rains. Would have cost about $150 00 to repair the check dam, so as to keep the water out. In 1867 he repaired a break in check dam. This dam was to keep the back-water from the canal. The swamp would have a great deal of water after heavy rains. The breaks in the check dam and in the canal have been there a very long time; cannot say how long. The canal at Raspberry swamp had a break of thirty feet in length. It was leaking badly below eight mile lock. Through the break at Raspberry swamp the water of the canal was running and overflowing the low country between Rapsberry swamp and the back-water. Told Mr. Blair he desired to hold a survey of water, and he refused to appoint any one on the part of the defendant. In 1868 was unable to ditch the land in consequence of the water in the field, caused by the flow of water from the leaks and breaks in the canal bank. The back-water dam was mended three times during 1868. Never knew the water from Raspberry swamp to interfere with planting until after the war.</p> <p>Samuel B. Sweat, sworn, says: "Was engineer and surveyor; the water that runs through the break at Raspberry swamp flowed into the back-water; the bank has been open a very long time; some years ago the canal was in disuse; a good head of water is kept on now ; saw a leak once about a mile and a half beyond what is known as “Bourquin’s bridge;” very little water passed through, as a bank bad been fixed around this break outside of the canal bank; Raspberry swamp is a basin, and the canal runs through the centre; its waters would naturally flow into the canal, but if the water in the canal should be raised, the swamp water would be backed and some of it flow through Mr. Bourquin’s rice field; thinks the water in the canal has been raised about eighteen inches since the war; the opening in the canal at Raspberry swamp has been there at least thirty years to witness’ own knowledge; seems to have been left open to flow Raspberry swamp; has no recollection of the check dam mentioned by Mr. Bourquin, and laid down in the drawing; if the opening in the canal batik were closed up, there would be no way for the water to escape, except by evaporation.</p> <p>FOE THE DEFENSE.</p> <p>.....Dotson, sworn, says: Raspberry swamp has always been kept as a reserve, same as Little Ogeeehee river; the natural course of the water from Raspberry swamp is towards Owens’ in the direction of the Ogeeehee river; have seen the rice fields in question for the last fifty years; the main ditches have not been cleaned in many years ; no water can pass or flow through them as they now are; they were in the same condition in 1868; water gets in and out of the backwater, from the ditches on the other side of the canal, from the rice field, which ditches carry the water oif to some ponds; these ditches have not been cleaned out; they are choked up; if they had been clean the land would not have been overflowed ; Mr. Bourquiu’s land is nothing but a pond; if the canals to drain the water from the fields had been cleaned out, the land would have been dry enough to plant corn; the overflow of the rice fields was not caused by the canal; it was occasioned by the bad condition of the dams and ditches owned by Mr. Bourquin, and on the Dean Forest place, adjoining and below Bourquin’s fields; have been on Bourquin’s place every year for forty years; was in his rice fields in 1868; if Bourquin planted rice in 1864, he must have made a very small crop; have passed through the swamp on his horse, but do not remember the exact time.</p> <p>G. T. Burdett, sworn, says: Knows location; the water passed over his lands before reaching Bourquin’s ; Raspberry swamp is a reserve and feeder to the canal; the water in it is as high as the top-water in the canal; does not think there was much water on Bourquin’s land in 1868 which came from Raspberry swamp, because I used a path through the low land all the time; the back-water is a pond ; all the swamps around drain into it, and if the ditches which carry the water off had been in good condition there would have been no overflow; if there was no canal there would be more water in Raspberry swamp, as the canal takes a great deal of water from it; has passed the break at the check dam lately ; very little water was running through it at the time; could have taken more out with a pitcher; the rice fields and ditches have been growing up since 1846; if the ditches had been in repair the water could and would have run off the land; the ditches have been getting worse ever since he can remember ; the land could bo planted in corn if the ditches in the fields and at Dean Forest wrere clean; land in that neighborhood is worth about $4 00 or $5 00 per acre; in 1868 the canal was in good order.</p> <p>Abraham Sheftall sworn, says: Canal in perfect order now, and was also in 1868. .Travel the canal two or three times a' week; have been employed for fifteen or twenty years to keep and regulate the water in the canal; the water is always under control; it is kept by a level, and was not raised in 1868, nor has it been since he has been in charge of it; has been on the canal for twenty-five years. Bourquin planted rice with the opening in Raspberry swamp just as it is now; the water was held on Bourquin’s land by reason of the bad condition of his ditches in his rice field, and that lead to and from the back-water and his dams. The water from Raspberry swamp runs through Mr. Owens’ place, and passes out in that way. If the back-water dam had been in good order, the water could not have flowed the laud; $5 00 per acre would have been the market value of the land in 1868, and $6 00*now, The water in the canal keeps to one standard, and has been so for years, before, during, and after the war.</p> <p>Francis P. Blair sworn, says: Was president of canal company in 1868 ; canal then in good order; great many hands employed in that year; and much money expended to keep sides and banks in good order; great deal of rain fell in 1868, hardest rains known for forty years; opening at Easpberry swamp always been there, kept as reserve — been so for over twenty years to his knowledge; has marks on the canal so as to keep the water at the same level. The water has not 'been raised since the war ; we could not raise it a foot if we wanted to. Water is kept at one level by letting it run into the Savannah river when too- high.</p> <p>Tax digests of Chatham county put in evidence, and showed returns of Bourquin of his lands in Chatham county, as follows : In 1867, fivehundred and eighty acres, value $2,000 00; in 1870, six hundred acres, value $2,000 00.</p> <p>The jury found for the plaintiff $2,500 00. The defendant moved for a new trial upon the following grounds, to-wit s</p> <p>1st. Because the court erred in refusing to charge as follows : “If the jury find that the defendant is guilty of an infraction of the public duty imposed upon it by law, in not keeping its banks and sides in the condition required by its charter, and that the plaintiff suffered special damages thereby, and you further find that the plaintiff, by ordinary care, such as by keeping his dams in repair and his drains clear and fit for use, could have avoided the consequences to himself, caused by the defendant’s negligence, he is not entitled to recover,” and in giving the charge with this qualification : “ If in the ordinary tillage or proper administration of his rice fields, the plaintiff failed to keep his drains open, so that all ordinary flow of water from this swamp or reserve could be discharged from his fields without injury, then he cannot recover damages for the neglect of the reasonable duty imposed upon him, as plaintiff is bound to use such diligence and cai’e as an ordinary and prudent man would exercise in carrying on liis planting interests ; but if you find from the testimony that the volume of water has been increased in height or quantity by the neglect of defendant in not keeping the canal in proper order, and by reason thereof such an increased overflow takes place, that plaintiff’s drains, when kept in proper order, would not vent it, then the defendant would be liable to such damages as he has proved he suffered.”</p> <p>2d. Because the court erred in refusing to charge in the following language: “If you find that the plaintiff was damaged by the negligence of the defendant to keep its banks and sides in repair as required by its charter, and that the plaintiff could not by ordinary care have avoided the consequences to himself, then the proper measure of damages would be the difference in the market value of his property before the injury, and its market value after the injury,” but added thereto, “or a fair rental per annum from the date of the overflow until the time of trial, and the outlay by plaintiff.”</p> <p>3d. Because the court erred in refusing to charge as follows : “That if the jury find that Raspberry swamp was left open for more than twenty years as a reserve for the canal, it was not the duty of defendant to build the bank there in 1868,” but modified the charge by adding thereto the following: “unless such changes have been produced in the canal by the neglect of the defendant to keep it in the same condition it was when originally built.”</p> <p>4th. Because the court erred in refusing to charge in the following language: “If the jury find that Raspberry swamp was left open for more than twenty years, and should further find that the damages were occasioned by the increased quantity of water in the canal which escaped through the opening, the plaintiff cannot recover in this case which is for a failure to amend and repair its sides and banks; to entitle hita to recover in such case, that act of trespass should be set forth in the declaration,” but charged as follows: “If you find that at the time the canal was constructed (and that it was more than twenty years since,) that Raspberry swamp (as a reserve or feeder) was made and has been kept in the same or as'good condition now as then, then the plaintiff is not entitled to recover any damage that flows from the reserve or swamp, unless the testimony discloses that by the neglect of the defendant the canal became foul and in aAvorse condition, and by reason thereof caused a backing up of the water, raising the water line so much higher, as to cause more water to flow out of the swamp or reserve than did when the canal was kept in proper order, then for such failure or neglect the defendant would be responsible for such damages as plaintiff has sustained by reason thereof. As to the distinction made by counsel that because the declaration says failure to amend sides and banks, the court charges “that if the bottom should be allowed to get foul or fill up so as to cause the water to rise higher in the canal, and were water to flow through the swamp or reserve so that the plaintiff’s drain could not, under the ordinary flow vent it, then for such neglect of defendant to keep the canal in proper condition, it would be responsible for the damage caused, as the bottom is as much a part of the canal as .the sides.”</p> <p>5th. Because the court erred in this : plaintiff’s counsel requested the court to charge, “If the jury find that the plaintiff could not repair his ditches by reason of this overflow, he is entitled to damages;” and the court said, “So I charge, provided his drains were kept in proper order and would vent the flow.”</p> <p>6th. Because the court erred in charging, as requested by plaintiff’s counsel, in the following language: “That if the jury find that there was a greater flow of water at the time of the injury complained of and since, then the right to have a less amount of water pass through this break is no justification,” and adding thereto, “that they must find that there was an excess of water caused by the canal not being kept in proper order and raising the water higher.”</p> <p>7th. Because the court erred in charging the jury, “that if they found from the testimony that any damage has resulted to the plaintiff by reason of the omission or commission of any act oii the part of the defendant necessary to keep its canal in proper order, then the plaintiff is entitled to recover.”</p> <p>8th. Because the verdict was contrary to law and the evidence.</p> <p>The motion was overruled, and defendant excepted upon each of the aforesaid grounds.</p>

<p>A private citizen lias not a right, against the consent of the clerk of the superior Court and without the payment of his fees, to examine the books of record in his office, for the purpose of making a full abstract of the contents thereof, for publication.</p>

<p>Equity. Vendor and purchaser. Plea. Verdict. Before Judge James Johnson. Stewart Superior Court. October Adjourned Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Administrators. Pleadings. Before Judge James Johnson. Marion Superior Court. April Term, 1873. Morgan Kemp, as administrator upon the estate of John Kemp, deceased, brought complaint against Benjamin A. Story, on a due-bill for $1,000 00, dated March 5th, 1870, with a credit thereon of $100 00, of date January 7th, 1873.

<p>1. If a jury in a criminal case be impanneled, and before any evidence is submitted the solicitor general discovers that one of the jurors was of the grand jury that returned the bill, the court may, under section 4681 of the Code, withdraw such juror, unless both sides consent to waive the objection, and if the other juries have been discharged, may continue the case.</p> <p>2. To constitute the offense of an assault with intent to murder it must appear that the circumstances connected with the assault were such, that had death ensued the accused would have been guilty of murder.</p> <p>3. A defendant was charged with 'committing this offense upon an officer whilst engaged in arresting one M. The accused introduced witnesses who testified that M. had surrendered and laid down his knife, and that ' the officer immediately called in others, who entered the room, some with pistols, and upon M.’s taking up his knife, but making no advance, the officer struck him immediately several blows on the head with a heavy stick, which would, in the language of the witness, “have killed a man or a mule,” and that the accused, under these circumstances, shot the officer. The court charged the jury that if the officer, in the execution of his authority, was obstructed or interfered with by the defendant, and in this interference the defendant did make the assault with intent to kill the officer, it would have been murder if the officer had died, unless you believe that the defendant had some provocation other than is set up in this case:</p> <p>Held, that the legal effect of the charge was to wholly withdraw from the consideration of the jury the evidence submitted by the defendant, and it tended, in connection with another part of the charge, to impress the jury, that no matter what degree or character of violence may have been committed by the officer on M., the defendant was guilty of the offense charged; Though there was strong counter-evidence on the part of the state, the court should have left it to the jury to determine if they were satisfied from the evidence that the accused had reasonable grounds to believe that the life of M. was in serious danger, and shot to prevent him from being unlawfully killed, whether those facts did not affect the question as to malice on the part of the defendant, so as to mitigate the offense of which he may be guilty.</p>

<p>Interrogatories. Evidence. Interest. New trial. Before J.udge Bartlett. Muscogee Superior Court. May Term, 1873.</p> <p>Jean Smith Dawson filed her bill complaining of Theodore Ewing, administrator of William Matheson, James Rankin in his own right and as executor of William Rankin, Alexander Matheson and Elizabeth Ewing, formerly Matheson. She claimed to be one of the heirs of George Smith, a citizen of Georgia, who died intestate about 1841, leaving a large estate in Georgia, and that she was entitled to one-fifth and one-tenth of the estate. She alleged, in substance, as follows: Kenneth McKenzie became administrator of George Smith and partly administered the estate. McKenzie died in 1854, leaving L. T. Downing, his executor. On the 2d of April, 1855, William Matheson, a nephew of George Smith, and •who knew complainant was entitled to a distributive share, was appointed administrator cle bonis non of George Smith, and gave bond with William and James Rankin as his securities, and who borrowed from him of the assets of the estate $15,000 00.</p> <p>William Matheson, as such administrator, received from Downing, as the balance of the estate of George Smith, $28,-155 00, and during his life, which lasted one year, he wasted said estate, except $11,839 25, which was represented by the note of William Rankin, and another note of Woodruff „& Gcetchius of $553 05, and which was received by Elizabeth Matheson, now Ewing, administratrix, she having been so appointed on the 12th of April, 1856, giving as her securities James and William Rankin, and Alexander Matheson. William Rankin has since died and James Rankin has qualified as his executor. Elizabeth Matheson returned to the ordinary a receipt, being a schedule of effects of George Smith, found at the time William Matheson died, describing the above two notes. Immediately upon obtaining letters, and well knowing all the foregoing facts, and knowing that complainant was a wido'w, poor and aged, and living in Scotland, and wholly ignorant of the condition of said estate and her rights as distributee, the said Elizabeth Matheson, William and James Rankin, combined together for the purpose of defrauding complainant of her just rights and obtaining from her for $1,250 — a discharge of all claims as the sister of George Smith. In pursuance of this intention, they caused Alexander Matheson, in whom complainant would confide implicitly,to write to her the following letter:</p> <p>“Columbus, Ga., 14th April, 1856.</p> <p>“ Mr. George Anderson :</p> <p>“Dear Cousin — At the death of Kenneth McKenzie, my brother William was appointed by the court of ordinary administrator on the estate of George Smith, which office he held when he (William) died, and since his death his wife holds all the papers connected with the estate of George Smith.</p> <p>“When my brother was alive, he contended that he was the only just heir to all the money here, and though he is dead, yet his claim is the same in the person of his wife and children, and they now claim it.</p> <p>“ By the law of this country, any person dying leaving real estate, and if said person has no heirs in the country, it goes to the state in which the real estate may be in at the time of the person’s death. But if any heir should be in the country before his death, and that heir should become a citizen of the United States, he becomes rightful and only heir to all real estate, or proceeds therefrom, in preference to all other heirs, (though they may be nearer by blood,) or even in preference to the state. On the above grounds my brother, when alive, (and his wife now) contended that he was rightful heir to all money here, and it can be very clearly proved that the money now here is the proceeds from real estate owned by George Smith at his death.</p> <p>“You know that William was in the United States before our uncle’s death, and that he became a citizen of the United States; you also know that he was the only one of all the heirs or relations of George Smith in this country at the time of George Smith’s death, so by law, whenever William became a citizen he also became heir to all the real estate of George Smith or the proceeds therefrom. ,</p> <p>“It is true that I am now in this country, and the only one in this country related to George Smith by blood, but my brother Avas before me, and Avas a citizen before I came, therefore I cannot claim anything; you cannot who are aliens.</p> <p>“ Since my brother’s death, his Avife has made a proposition to me as follows: She will give $5,000 00 upon condition that all the other claimants give up their claims to her; said $5,000 00 to be divided amongst said claimants, who are you, your brothers and sisters, aunt Jean, aunt Hutchin’s children, and Jesse Duncan and myself; or to make the thing more plain, put them in families — say, Ann Anderson, Jean Dawson, Elizabeth Hutchins, Christian Matheson or children, ......or children,......or children, (our uncle William dying without children or wife, therefore his claim amounts to nothing.) That would be $1,250 00 to be divided amongst each family. After receiving the above proposition I concluded to write you, and I Avould ask it as a personal favor of you, that you would let all the rest know of it. As for Jesse and Duncan, I Avill write them. I would most earnestly press upon you all to accept the proposition now made. I am here on the spot; I know all the circumstances of the case, and how the law is. I have stated the case truly. I am uninterested in any Avay, except in the proposition now made. Indeed, I may say it is mainly by my efforts such a proposition is now made. There is not more than $15,000 00 in all here, and that is in notes, etc., besides there is outstanding debts against the estate of considerable amount Avhich is not settled, so that you see the amount specified is not such a bad one; it is more than I expected when I first started the question, but no more will be given. Suppose you should go to law about it, would you receive more ? No, not so much, even should you gain it, which you would not. What lawyer here of any account would undertake such a case? — certainly none would do it without their fee in their hands, you being in a foreign country. All the lawyers I have spoken to have persuaded me as friends not to go to law, for I could recover nothing, and I would have all the expenses to pay, which would not be little, for lawyers do not work for nothing in this section of the Union, and the court expenses are heavy.</p> <p>“ I leave the case now with you all. Decide as you please; do nothing hastily; consider on the matter — I have done so for years — you have my conclusion, which is : I am no heir by law, and can receive nothing except my share of the proposition now made to you. If you think fit to accept it, it will be well; but if you do not, I am authorized to say by William’s wife that no more will be given; that this is the. first and the last proposition that will be made, and if you do not accept, you may go to law as soon as you please; she is and will be prepared for you, and I may add she has the means and the friends to law about it as long as you please. You should accept, and be glad that none is claimed that you have already got. If you go to law and collect, it is the law of Georgia decides the matter.</p> <p>“If you should wish me to act for you or assist you in the matter, I will do so with pleasure. I have all along acted in this matter, even in my brother’s lifetime, as your friend, and I am willing to do so now.</p> <p>Hi >K ifc H< H* *</p> <p>“Yours, respectfully,</p> <p>“Alex. S. Matheson.”</p> <p>Believing she could place full faith and credit in the assurances of her nephew, Alexander, and knowing that his opportunity of ascertaining the law and the facts were ample, she accepted the terms proposed by him, and on receiving the sum of $1,250 00 from him, did, in 1856, make a receipt of her claim and send it to Alexander Matheson, which money, in pursuance of such fraudulent intent, was advanced by William Rankin, out of the funds of George Smith, then in his hands. She rested under the conviction that the facts were all true, and the law bearing thereon was as stated in said letter, until very recently. And she-charges that she has been deceived, and her receipt obtained by fraud in this, that by the law of Georgia, William Matheson was not the heir; that he did not arrive in Georgia until after the death of George Smith, he, the said Alexander, having stated as a fact that said. William Avas a resident of Georgia before the death of George Smith. That by the laws of Georgia the property of said Geoi’ge Smith went to his next of kin, and that at the time complainant gave the receipt, she was entitled to $12,000 00, all of which was well known to defendants, and said facts Avere fraudulently concealed from complainant Avith the intent and for the purpose of obtaining a settlement at the nominal sum of $1,250 00.</p> <p>Complainant prays for an account.</p> <p>The defendants ansAvered substantially as folloAvs: Defendants say that William Matheson did in his lifetime set up a claim to the irhole of George Smith's estate, on the ground that the said George was an alien, and the said William Aras the only relative who was in the United State at the time of his death, and that by the lairs of Georgia the real estate descended to him. Complainant knew when William started for Georgia, and when the said Geoi’ge died, she being a grown woman, and the said Alexander only a small boy, and none of defendants deceived or attempted to deceive complainant as to the facts of the case.</p> <p>Complainant better knew the facts than Alexander, who was then, and for a long time after the death of Smith, in Scotland. They admit the writing of the letter by Alexander, but deny that it was written or sent to complainant; they deny that it was Avritten to deceive or mislead, but only to make known the grounds of the claim of William and the proposition for a compromise. They deny that complainant was misled or deceived by the letter. They deny that complainant acted on the statements in said letter as to the law, but say she was informed by others that the law was different ; that the said Alexander, in good faith, stated the law as he was informed and believed it to be. That complainant did not sign the receipt under any mistake as to her being an heir of George Smith or not entitled to a part of his estate, under the law of Georgia, and say that she rvas fully informed, and had been recognized as an heir, and had received large sums from McKenzie as such heir; that she was fully advised as to her rights in the premises. They deny any misrepresentations as to the amount of the estate which came to the hands of said Elizabeth. They admit the writing of the letter by William Matheson, and say its contents were known to complainant before signing the receipt. They say the settlement was made and the receipt given after full information as to her rights, and after full consideration; that it was made because of the controversy which had arisen between William Matheson and the next of kin of George Smith, as to who was entitled to the estate of George Smith, and as a compromise of the claim of complainant as an heir, and they claim the settlement to be a bar to complainant.</p> <p>James Rankin, as executor of William Rankin, deceased, filed a sworn plea, containing the following admissions:</p> <p>That before and at the time that William Matheson became administrator, he claimed to be entitled to all the proceeds of the real estate of George Smith; that William and James Rankin owed to Lemuel T. Downing, as executor of Kenneth McKenzie, $14,843 00, by a promissory note, and in order to pay said note it was agreed by all parties that the said William Rankin should give his note for a like sum, payable to William Matheson individually, and that the said Matheson should receive the same as cash from Lemuel T. Downing, executor; that this was done; that he paid Matheson, on account, this note, $5,300 00, which Matheson, to the extent of $3,300 00, invested in negroes, as he considered himself entitied to it; that lie refused to pay Theodore Ewing, administrator, anything on said note, except certain amounts which went to the payment of the heirs.</p> <p>The complainant died pending the litigation, and E. J. Moses, her administrator, was made a party in her place.</p> <p>The depositions of Jean Smith Dawson were tendered in evidence. The fourth and fifth interrogatories were objected to as leading. They were as follows :</p> <p>“ 4th. If Jean Dawson ever gave to Theodore Ewing, or any one else, a receipt in full for her ..portion of the estate of George Smith, deceased, state to whom said receipt was given, the consideration received for giving said receipt, and the representations made to Jean Dawson by which she was induced to give such receipt. If you have any letters from Theodore Ewing or James Eankin, or from Alexander Matheson, which induced the giving of said receipt, attach the originals to your answers.”</p> <p>“5th. If you state any misrepresentations were made to Jean Dawson, by which she was induced to give said receipt, after stating what they were and who they were made by, state whether, but for those representations, you would have given the receipt ?”</p> <p>ANSWERS.</p> <p>To the fourth interrogatory she answers: “I sent through Mr. James Lawson, banker, Huntley, a receipt, I think, in full for my. portion of the estate of the deceased, George Smith. Alexander Matheson, Columbus, was the person who made the offer, in writing, from America, which was $1,250 00, or two hundred and fifty pounds sterling, and he sent on the receipt through Mr. Lawson, banker, Huntley, for my signature. I do not remember in whose favor the receipt was taken. The money was sent over to this country after the receipt was sent back to America, signed. A copy of the offer, namely, that sent to George Anderson, (similar to that made to me and others) is sent herewith. The representations which were in that offer, as also similar representations in letters written by the said Alexander Matheson to Jesse Matheson, Huntley, his sister, Barbara Johnston, his cousin, to myself, and the said James Lawson, induced me to accept the offer. Matheson is my nephew, and I had great confidence in him. I lent him a large sum of money (¿6100) on his leaving this country for America, and I had not any reason to distrust him.</p> <p>To the fifth interrogatory she answers: “That but for the above representations I would not have granted the receipt. I first discovered such statements were misrepresentations when William Lawson went out from this country to America about the beginning of the year 1867.”</p> <p>The complainant relied upon several letters written by the defendant, Alexander Matheson, the one to George Anderson, set forth in the bill, one to his sister, and one to his cousin. They were objected to on the ground that they were not addressed to Jean Smith Dawson, and there was no evidence that she had seen them before giving the receipt.</p> <p>These letters were to the other heirs of George Smith’s estate, in which he referred to the letter of George Anderson as containing the offers of compromise proposed by his sister-in-law, the administratrix, and urging their prompt acceptance. To the depositions of Jean Smith Dawson was attached the letter to George Anderson.</p> <p>The objections were overruled and the defendants excepted.</p> <p>The court, in its charge, authorized the jury to compound the interest on the amount found to be due to complainant, as provided in section 2603 of the Code. To which the defendants excepted.</p> <p>The jury found for the complainant $13,315 25. Error is assigned upon each of the aforesaid grounds of exceptions.</p>

<p>Claim. Equity. Execution. Levy and sale. Before Judge James Johnson. Talbot Superior Court. September Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Principal and security. Illegality. Before Judge James Johnson. Talbot Superior Court. September Term, 1873. On March 29th, 1867, an execution issued from Talbot superior court, in favor of Edward A. Adams, against Simon T. Yeile, as principal, and Lewis Wimberly, as security, for $1,028 92 principal — $789 00 interest and costs, which was levied upon certain lands as the property of Wimberly.

<p>An indietment charging that the defendant did, on the fourth day of April, 1S73, being Sunday, keep open a tippling house, when in fact the said fourth day of April was Friday, is not a good indictment, and a motion in arrest of judgment should have been sustained.</p>

Assault witli intent to murder. Evidence. Witness. Before Judge Clark. Macon Superior Court. December Term, 1873. Meeks was placed on trial for the offense of an assault with intent to commit murder, alleged to have been committed upon the person of Taylor Killebrew, on October 23d, 1873. The defendant pleaded not guilty.

Trusts. Execution. Levy and sale. Before Judge Hopkins. Eulton county. At Chambers, January 6th, 1874.

New trial. Before Judge Kiddoo. Schley Superior Court. April Term, 1873. Susan L. Jones sued out a distress warrant against John S. Allen, for the sum of #238 51, besides interest, for rent. The usual counter-affidavit was filed and bond given.

<p>1. Where A, a common carrier, wrongfully and fraudulently takes goods to be conveyed to the owner, knowing that B, another common carrier, has made a contract with the owner for the carriage of the same for hire, the former is liable to the latter in damages to the amount of freight he would have earned under his contract. ,</p> <p>2. If the owner of the goods had assigned the bill of lading to B, and the owner refuse to receive them from A, and B demands and receives the goods from A, and then deliver the same to the owner, who accepts them, such carrier so delivering must assert his claim for the freight against the owner.</p> <p>3. But if B, in order to obtain possession of the goods, has been compelled to pay A the amount for freight which the owner was to pay him, he is entitled to recover back the same from A.</p> <p>4. If the goods, when received by B and delivered to the owner, were damaged so that the owner had a right to recoup for the damages against B’s claim for freight, B may recover the amount of the damages from A.</p> <p>5. Would B, in this case, by reason of his special property in the goods arising out of the assignment of the bill of lading to him and his lien on the goods for his claim for freight, have a right of action against A for the damages ? Quere.</p> <p>G. There being no evidence in the record showing that defendants in error had any right to claim freight on the coal, or what amount of damages was done to the hay, and they not being entitled to recover from plaintiff in error the amount which was paid for freight from New York to Apalachicola, the verdict is too large, and the judgment is reversed with instructions.</p>

<p>Where the evidence is conflicting, and no error of law is committed, the discretion of the superior court in refusing a new trial, will not be controlled.</p>

Husband and wife. Administrators and executors. Judgment. lies adjudicata. Garnishment. Partition. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. Robert Badkins brought assumpsit against Emory S. Dennis, administrator, and Mary T. Wynn, administratrix, of David A. Wynn, deceased, upon his acceptance of $186 65. The defendant pleaded the general issue and plane administravit prater. Pending the suit Dennis died, and Mary Wynn married one Solomon Bray.

<p>Land having been given in for taxation for the year 1868 by the agent of the estate of a non-resident, he having died in the year 1860, which was subsequently sold by the sheriff for the non-payment of state and county taxes, under an execution for the same against such agent, the , purchaser at such sale acquired a valid title.</p>

<p>When in a suit pending against an administratrix, there was no issuable plea filed, and the plaintiff took a judgment against the administratrix, personally, and, at a subsequent term of the court, moved that the judgment be set aside, and that he be permitted to take, nunc pro tunc, a judgment against the administratrix, as such, and it was made to ap- ■ pear to the court, that since the original judgment, and only a short time before ihe application was made, the administratrix had discovered that the note sued on was not the act and deed of the intestate, and that she wished to file a plea of non est factum to the same:</p> <p>Held, that under the facts, the court erred in allowing the plaintiff to take his judgment nunc pro tunc.</p>

<p>'The agent of a foreign corporation may acknowledge service of a declaration in attachment so as to authorize a general judgment against his principal.</p>

Homestead. Judgments. Before Judge James Johnson. Talbot Superior Court. September Term, 1873. John T. Grant obtained judgment against Amos & Walton at the March term, 1867, of Talbot superior court, for $123 00 principal, $18 29 interest to that date, and costs of suit. On December 30th, 1868, the execution based on this judgment was levied upon a lot as the property of Amos.

Will. Estate. Before Judge Andrews. Oglethorpe Superior Court. April Term, 1873.

<p>The evidence in this case being conflicting, a new trial was properly refused.</p>

<p>A suit was brought on a joint and several promissory note against two parties who lived in different counties. No service was made upon the defendant residing in the county of the location of the suit until after the first term. At the second term a verdict and judgment was taken against the non-resident defendant alone:</p> <p>jHeld, that the verdict and judgment, was illegal, and equity will enjoin its enforcement. In such a case the non-resident defendant has a right to insist upon a verdict and judgment against his co-obligor at the time they are taken against him.</p>

Railroads. Eminent domain. Damages. Interest. Practice in the Supreme Court. Before Judge Harvey. Whitfield Superior Court. April Term, 1873. This case arose upon proceedings instituted by the Selma, Rome and Dalton Railroad Company, under its charter, to assess the land of Mary A. Redwine, as administratrix of William Redwine, deceased, appropriated by said company for its right of way, and also the damages sustained by her from such appropriation.

Sheriff. Rule against officer. Before Judge Kiddoo. Early Superior Court. April Term, 1873. Tlxe facts of this case are omitted for the reason that they would not tend to illustrate any principle enunciated in the decision. The answer of the sheriff was voluminous, and of such a character that it might well have been held evasive by the court below without doing any violence to its discretion.

<p>When a town lot was set apart as a homestead, under the act of 1868, and it was levied upon and sold under a judgment founded on a debt contracted prior to 1808, and the debtor gave notice to the sheriff that he claimed $500 00 of the proceeds to be invested in a homestead for himself and family, under the provisions of the Code, and it appeared, on a rule to distribute the money, that there were unsatisfied judgments in the hands of the sheriff to the amount of $2,600 00, and only $750 00 money in court:</p> <p>Held, that it was not necessary that the notice to the sheriff should be given before the sale, and that there was sufficient evidence, prima facie, of the insolvency of the debtor to require that the $500 00 claimed should, under the direction of the court, be invested in a homestead or the debtor and his family, as provided by section 2044 of the Code.</p>

New trial. Before Judge Hopicins. Fulton Superior Court. October Term, 1873.

Executors. Judicial sale. Execution. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. The decree and execution under which the land in controversy was sold, were as follows: “ Silas B. Tinsley, Larkin Tinsley et al., vs. Thomas W. Howell, executor of William Tinsley, deceased.” Bill for Account and Injunction, in Chattahoochee Superior Court, November Term, 1856. Confession of judgment.

Ejectment. Trusts. Before Judge Hall. Monroe Superior Court. February Term, 1873. The Central Female College brought ejectment against Romulus C. Persons for a lot of laud situate in the village of Culloden, in the county of Monroe. The declaration was amended by adding a demise from James Smith, W. D. High-tower, Alfred Drake, Augustus F. Maddox and Littleton R. Vaughn, as trustees of the Methodist Protestant Church, at Culloden.

<p>1. If the conductor of a railroad train agree to put a passenger off at a particular place, which is not a station or regular stopping place, it would be the duty of the conductor to stop the train at that place, so that the passenger could get off in safety. This rule would apply although the passenger had a ticket only to the last station passed before reaching the place at which he was to be put off.</p> <p>2. If the agreement with the conductor was that the train would not he stopped, but its speed only slacked, it was not error in the court to charge the jury that the speed of the train should be so checked that the passenger could get off safely. Nor was it error to give such a charge as a qualification to a request of defendant, “that if the train did slack up so that plaintiff might have gotten off safely, then although plaintiff was injured in getting off, defendant is not liable in damages.”</p> <p>3. Under the facts of this case it was not error in the court to refuse to charge 1lie jury “that if the train slacked up so that plaintiff might have gotten safely off, it was for plaintiff to determine whether he would get off or not; and if he did get off, and in so doing was injured, he is not entitled to recover.”</p>

<p>The superior court has jurisdiction of an action brought for the breach of an indenture of apprenticeship executed under the provisions of the act of 1865-6.</p>

Criminal law. Indictment-. Jury. Adjourned term. Before Judge Hall. Newton Superior Court. September Adjourned Term,1873. George Sims was placed on- trial for the offense of rape. He moved to quash the indictment upon the following grounds ; 1st. Because John T. Henderson, the foreman of the grand jury which returned the bill, was an illegal juror, as the venire showed that he was regularly drawn as a traverse juror and not as a grand juror.

Guaranty. Alteration. Before Judge Hall. Pike Superior Court. April Adjourned Term, 1873.

<p>Practice in the Supreme Court. Equity. Bill of exceptions. Decree. Attachment. Before Judge Hill. Houston Superior Court. May Adjourned Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Criminal law. Evidence. . New f.rial. Newly discovered evidence. Before Judge Buchanan. Monroe Superior Court. August Term, 1873. Kit Brown was placed on trial for the offense of murder, alleged to have béen committed upon the person of one Lindsey Johnson, on June 29th, 1873. The defendant pleaded not guilty.

Appropriation of payments. Usury. Verdict. Before Judge Kiddoo. Schley Superior Court. April Term, 1873. Saulsbury, Respess &'Company brought complaint against Spencer E. Eason, as drawer, and E. D. Eason and J. S. Eason, as indorsers,- on a draft, embracing within it a crop lien, dated March 31st, 1871, payable seven months after date, for $233 60, besides oom'isel fees, and addressed to plaintiffs. The defendants pleaded the general issue, usury and payment.

Libel. Innuendo. Justification. Charge of Court. New trial. Immaterial error. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. Park & Iverson brought case against the Piedmont and Arlington Life Insurance Company for libel, estimating their damages at $20,000 00.

<p>1. .In an action upon the case against a railroad company, it was charged in the declaration that the defendant had stopped and dammed up a stream of water with an embankment, and caused a pond of water to accumulate and remain, and that thereby the plaintiff’s family had been made sick, and he had been put to great expense and loss of time, etc. On the trial it was proposed to amend the declaration, and charge that defendant had thrown up an embankment in altering the locality of its road-bed, and had in so doing turned up and exposed to the sun and air, earth that had before been unexposed, and had thus produced malaria and caused sickness in the plaintiff’s family, etc. The judge refused to allow the amendment, and there was a verdict for the defendant, and a motion for a new trial on various grounds. The judge granted the new trial on the ground that he erred in refusing the amendment, but overruled the motion on the other grounds:</p> <p>Held, that the amendment was properly refused. It was a new cause of action, and under section 3480 of the Code an amendment- introducing a new cause of action is not allowable.</p> <p>2. When on a trial before a jury the court commits error of law, but the verdict is such as is required by the evidence, and must have been the same had there been no error, a new trial ought not to be granted for such error.</p>

<p>To entitle tlie owner of land to an injunction restraining an adjacent proprietor from continuing the improvement of his lot by grading and excavating up to the line of division between the two lots, on the ground that it is a trespass in removing the natural support of complainant’s land, it should be made to appear that complainant’s soil has been displaced by such excavation, or that it is of such character that it cannot stand by its own coherence, and that complainant’s land will be materially damaged thereby. Under the facts in this case, we do not think the chancellor abused his discretion in refusing the injunction.</p>

<p>When a recognizance has been forfeited, the law requires that the clerk shall issue a scire facias thereon, returnable to the next term of the court; and if such officer allow the next term to pass, and then issued a scire facias, it was error in the court to render judgment thereon against the security at the-succeeding term.</p>

Charge of Court. New trial. Before Judge Hill. Bibb Superior Court. April Term, 1873. This is the second time this ease has been before this court: Vide 38 Georgia, 286. Solomon brought complaint against Lochrane on a note for $1,000 00, dated October 6th, 1858, and due at sixty days.

<p>1. When a defendant pleads that he is security to the note sued on, and that it has been altered without his knowledge or consent, he is not entitled to take a verdict, on the plaintiff’s closing his case after introducing the note in evidence without other testimony.</p> <p>2. If a motion to non-suit should have been sustained in that stage of the case, yet if'the defendant, after it is overruled, proceeds, and both he and plaintiff introduce evidence on the issue made by the plea, and the evidence is sufficient to sustain a verdict for plaintiff, it will not be set aside and a new trial granted because of the refusal by the court to grant the non-suit.</p> <p>3. If the defendant put in evidence the testimony of the principal as to what he said to the payee at the time the words were added to the note which are complained of, for the purpose of showing that he, the principal, was to be exclusively bound for the additional liabilities caused by those words, it is competent for the plaintiff, in rebuttal thereof, to-prove all that the principal said at the time, as part of the res gestee. And if such proof be not competent to charge the security with knowledge of and consent to the change, he should ask the court, by its charge to the jury, or when the evidence is admitted, so to limit its . effect.</p> <p>i. There was no abuse of the discretion of the court in refusing to grant a new trial on the ground that the verdict was against the weight of the evidence.</p>

<p>[McCay, J., was providentially prevented from presiding in this ease.]</p> <p>1. An indictment charging, the defendant with the forgery of a bank cheek, payable to the order of......, should be quashed on demurrer.</p> <p>2. The check was not payable to bearer nor to the order of any named person, and was therefore so incomplete and imperfect that no one could have been defrauded by it.</p> <p>3. An indictment for forgery must specify the person intended to be defrauded. '</p>

Claim. Evidence. Fraud. Before Judge Hill. Houston Superior Court. May Adjourned Term, 1873. At the December term, 1872, of Houston superior court, E. W. Engraham recovered a judgment against one John Laidler for $389 56, principal, besides interest and costs. The execution based on this judgment was, on January 18th, 1873, levied upon certain lands as the property of the defendant. A claim thereto was filed by Redding H. Pate.

Injunction. Before Judge Buchanan. Troup county. At Chambers. December 11th, 1873. Shirley Sledge, as administrator, and B. M. Curtright, as administratrix, upon the estate of Samuel Curtright, deceased, filed their bill against Benjamin H. Hill, and Hilliard Oneal and R. J. Butts, as executors upon the estate of James Oneal, deceased, making this case: The estate of Samuel Curtright can only pay about fifteen per cent, of its indebtedness on promissory notes.

<p>Administrators and executors. Wills. Legacies. Advancements. Before Judge Bartlett. Morgan Superior Court. March Adjourned Term, 1873.</p> <p>Eor the facts of this case, see the decision.</p>

Contracts. Sale. Rescission. Before Judge Hill. Houston Superior Court. May Adjourned Term, 1873. Duncan brought complaint against Howard, on the following note: “$100 00. I promise to pay J. B. Barrett or bearer one hundred dollars, to be paid when I collect the money from sale of Howard Moore lot, sold to Major Allen. May 31st, 1870. (Signed) “J. A. Howard.” The defendant pleaded that the condition upon which payment was to be made had not accrued.

<p>The chancellor did not abuse his discretion in granting the injunction in this case.</p>

<p>Damages. Practice in the Supreme Court. Before the Supreme Court. January term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Statute of limitations. Executions'. Before Judge James Johnson. Muscogee Superior Court. April Term, 1873.</p> <p>On September 11th, 1866, Columbus C. Cody recovered a judgment against John R. Ivey for $2,126 72, besides interest and cost. An appeal was entered by the defendant. Upon the second trial, which was.had on February 8th, 1867, a judgment for the same amount was recovered against said Ivey and Samuel B. Cleghorn, security on appeal. The execution based on this judgment was levied on March 4th, 1872, upon certain property situated in the city of Columbus, which was claimed by William U. 'Garrard, as executor of W. W. Garrard, deceased. Upon the trial of the issue thus formed, it appeared that Garrard, as executor, purchased said property from Ivey on January 26th, 1867; that he knew of the first judgment, but was assured by Ivey that it was obtained when he was out of the state, and that his testimony would produce a different result on the appeal trial; that Garrard, executor, paid a full consideration for said property, and had been in possession thereof since the date of his purchase.</p> <p>The court charged the jury as follows: “If they believed that the claimant bought the premises levied on from the defendant, John R. Ivey, after the first verdict, and went into possession of the premises four years prior to the levy, and was a bona fide purchaser, and a bona fide purchaser was one who bought, intending to buy, and pays a fair price for the property, and buys with no intention to hinder or delay creditors, then the claimant holds the premises discharged from the lien of the plaintiff’s judgment, notwithstanding the evidence introduced in this case.”</p> <p>The jury found the property not subject. The plaintiff in execution moved for a new trial on account of error in the aforesaid charge. The motion was sustained, and claimant excepted.</p>

Arbitrament and award. Revocation. Before Judge James Johnson. Harris Superior Court. October Term, 1873. There were three cases pending in Harris superior court between the above parties. On April 16th, 1873, by written agreement, they submitted the matters in controversy to the arbitrament of seven persons to be selected by William C. Cherry. An order of the court was taken in- accordance with said submission.

<p>Mechanics’ lien. Before Judge Schley. Chatham Superior Court. May Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Injunction. Before Judge Hall. Monroe county. At Chambers. February 26th, 1874. Jane A. Dumas filed her bill against John Neal and the sheriff of Monroe county, making, in brief, this case : Complainant, upon her marriage with her. husband, James H. Dumas, entered into a marriage contract, by which she secured to her separate use all property she then had or which she might thereafter acquire, he receiving said property simply as trustee.

<p>When a jury, on the trial of a criminal case, have retired to consider of the verdict, and have been called back by the court to be recharged, it is the right of the defendant to have his counsel present, and he does 'not lose this privilege unless by a clear and distinct waiver thereof.</p>

<p>Possession under an order setting apart a homestead to the wife of the defendant in execution, cannot be tacked to subsequent possessions to protect the purchaser under section 3583 of the Code, from the seizure of said homestead under an execution based on a debt contracted prior to the adoption of the Constitution of 1868.</p>

Constitutional law. Laws. Corporations. Bill of exceptions. Practice in the Supreme Court. Before Judge Hill. Bibb Superior Court. October Term, 1873.

Garnishment. Amendment. Partnership. Before Judge Ci-iisolm. City Court of Savannah. July Term, 1873. Process of garnishment issued on a suit in favor of Cunningham, assignee, against Albert R. Lamar, and was served upon Beard & Kimball. The garnishees answered, denying indebtedness, etc. The answer was traversed. Judgment was obtained against the defendant.

<p>Garnishment. Before Judge Chisolm. City Court of Savannah. May Term, 1873.</p> <p>For the facts, see the decision.</p>

Prescription. License. New trial. Newly discovered evidence. Before Judge Harvey. Haralson county. At Chambers. May 19th, 1873. George W. McGuire brought complaint against Winham, King & Aldridge, for $1,000 00 damages, alleged to have been sustained by him, through the overflowing of his land by water, caused by the erection of a mill-dam by the defendant. The general issue was pleaded.

Railroads. Corporations. Damages. Negligence. Charge of Court. Immaterial error. New trial. Before Judge Buchanan. Troup Superior Court. May Term, 1873. For the facts of this case, see the decision. 1st. This defendant can do nothing in Alabama, and therefore the case ¿hould have been dismissed. • (See charter — acts of 1837.) 2d. The evidence shows that this defendant did not carry nor wrong the plaintiff. Allegata and probata must agree: Felix vs. The State, 18 Ala.

Attachment. Statute of limitations. Before Judge Hopkins. Catoosa Superior Court. October Adjourned Term, 1873. William M. Whitman commenced suit by attachment against William McClure and James McClure, on an account for $896 84, the first item of which was dated September 7th, 1865, and the .last item November 13th, 1866, with two credits thereon, the first of $1 00, dated February 3d, 1866, and the second of $6 25, of date March 9th, 1867.

<p>Injunction. Pleadings. Vendor and purchaser. Judgment. Before Judge Buchanan. Troup county. At Chambers. April 1st, 1874.</p> <p>For the facts, see the decision.</p>

<p>1. In criminal cases below the grade of felony, the testimony of an accomplice may be sufficient to authorize a conviction.</p> <p>2. But where the accomplice was impeached by showing that he had before the tria! made affidavit that the defendant was not guilty, and stated in his testimony as a reason why he had sworn falsely, that it was done under a threat, which threat was denied by the person charged by him with having made it, he being also a witness:</p> <p>Held, that it was error in the court in charging on the question of alibi— upon which point the defendant had introduced evidence, and which charge was founded solely on the testimony of the accomplice, to say to the jury : “ In disposing of the witness to prove the alibi you will consider whether there are any material facts proven in the case which challenge your full belief, which are entirely incompatible with the evidence of the witness, Robinson, who proves the alibi, then without imputing falsehood to him you will charitably conclude that he was mistaken as to the time, if the witness lived close by the accused, had frequent opportunities of seeing him, and frequently saw him drunk in visiting his house,” etc.</p>

<p>1. A party to a cause of action on trial is a competent witness to identify a book of accounts sought to be introduced in evidence by him as his book of original entries, even though the opposite party be dead.</p> <p>2. Where there is evidence to sustain the verdict, a new trial will not be ordered.</p> <p>3. In order to render newly discovered evidence a ground for new trial, it must appear that it is not cumulative, and that none of the moving parties, nor their counsel, were aware of it at the trial.</p>

Equity. Receiver. Vendor and purchaser. Before Judge .Bartlett. Baldwin county. At Chambers. December 20, 1873.

<p>1. The granting of leave of absence by court to counsel, unless for providential cause, is of doubtful propriety when it affects the rights and interests of other parties, and should be exercised at all times with caution and circumspection by the court.</p> <p>2. In this case, the court having granted the claimant’s counsel leave of absence, though the docket did not show him to be of counsel, this court will not control its discretion in continuing the case.</p>

Rule against officer. Sheriff. Garnishment. Before Judge Herschel V. Johnson, Emanuel Superior Court. October Term, 1873. This case arose upon a rule nisi, at the instance of Chaffee, Croft & Chaffee, requiring Joseph' W. Cowart, sheriff of Emanuel county, to show cause why he should not pay over the principal, interest and costs, on certain executions in favor of the movants against J. J. Moring.

<p>Practice in the Superior Court. Service. Before Judge Buchanan. Douglass Superior Court. October Term, 1873.</p> <p>For the facts of this ease, see the decision.</p>

Rule against officer. Sheriff. Before Judge Herscheb V. Johnson. Washington Superior Court. October Term, 1873. This case arose upon' a rule against Mayo, the sheriff of Washington county, requiring him to show cause why he should not pay over the amount due' on an execution in favor of Chambers against John E. Mills, placed in his hands for collection.

<p>New trial. Befoi-e Judge McCutchen. Bartow Superior Court. September Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

<p>Mechanic’s lien. Judgments. Before Judge Gibson. Richmond Superior Court. October Term, 1873.</p> <p>Euphemia H. Parish brought complaint against Edmund T. Murphy for two adjoining lots of land, situate on Hole street, in the city of Augusta. The defendant pleaded title in himself by reason of a deed from the sheriff of the city of Augusta, made to him under a sale of the property in dispute, •by virtue of an execution against the plaintiff.</p> <p>The plaintiff showed title in herself by deed from the city of Augusta, dated October 23d, 1863, with possession thereunder to February 4th, 1868, when she was dispossessed by the sheriff of the city of Augusta, and the. defendant placed in possession.</p> <p>The defendant introduced an execution against the plaintiff in favor of William IT. Rich, which commanded the sheriff of the city of Augusta to make the money out of certain property on Calhoun street therein specified, and also “of the other goods and chattels of said defendant.” Showed the sale of the Hole street property thereunder, and the deed of the sheriff made in accordance therewith.</p> <p>The plaintiff, in reply, introduced the record of the suit in which the execution aforesaid was obtained, from which it appeared that Rich had sued the defendant on an account, to which was added a count on a mechanic’s lien against the Calhoun street property. Judgment was rendered in favor of Rich, to be levied,of the Calhoun street property, “and also to be levied of the other goods and chattels of said defendant.”</p> <p>The court charged the jury that the execution under which the defendant claimed-the property in dispute legally authorized the sheriff’ to sell and convey the same, and if the said property was, by virtue of said execution, sold and conveyed to the defendant,, the plaintiff was legally divested of her title, and all title that she had passed to the defendant.</p> <p>To this charge the plaintiff excepted. The jury found for the defendant. Error is assigned upon the above ground of exception.</p>

Executor de son tort. Amendment. Evidence. Before Judge Bartlett. Jones Superior Court. October Term, 1873. This is the second time this case has been before this court: See Horne vs. Woolfolk, 45 Ga. R., 546. The marriage of the plaintiff with Jesse M. Matthews, pending the litigation, accounts for the change of name.

Attorney and client. Evidence. Principal and agent. New'trial. Before J udgo Gibson. McDuffie Superior Court. March Term, 1873. William P. Cassels, as trustee for Mary J. Cassels, brought complaint against Usry, Sturgis & Company upon the following account: “1866 and'1867.

Witness. Party to suit. Evidence. Before Judge Strozer. Dougherty Superior Court. April Term, 1873. When this case was called, a motion was made to dismiss the writ of error, because no record accompanied the bill of exceptions. The facts on which this motion was based were as follows: At the trial of the case, cross-bills of exceptions were filed.

<p>Injunction. Judgment. Before Judge Hopicins. Cow-eta county. At Chambers. January 28th, 1874. 0</p> <p>In 1859, Burwell P. Hill bought of William Mitchell, of Meriwether county, land, and gave Mitchell as many as five notes therefor, with John M. Hill and one Dennis as his securities: These notes fell due by installments in 1880, 1861 and 1862, and were for different amounts, and aggregated about $15,000 00. Some of them were paid and destroyed. One of them was for $5,450 00, due 25th December, 1860. William Mitchell died and John Mitchell became his administrator, On said note John M. Hill paid said administrator $2,500 00, 9th of February, 1863, and somebody paid him $3,080 00 on the 13th of the following March. Boyd, as receiver of Mitchell’s estate, sued on this note, and both Hills acknowledged service on the 31st of December, 1869. On the same day the Hills acknowledged service upon another suit by 'Harris, as guardian, upon a note for $3,438 37, dated the. 25th February, 1867, and due 25th December, 1867. No defense was filed, and judgment was rendered thereon on the 6th of September, 1870. Fi.fa. was issued on the 24th of September, 1870, and levy on Burwell P. Hill’s land was made the 5th of January, 1871. On the day of this- levy both Hiíls sought to enjoin’said Harris’ fi. fa. On the 15th January, 1871, Judge Hopkins refused said injunction. In March, 1871, the supreme court affirmed that judgment. On the 1st of May, 1871, Burwell P. Hill filed an affidavit of illegality. . On the 14th of February, 1873, said fi. fa. was levied upon John M. Hill’s land. This levy was stayed by relief affidavit by both Hills. This affidavit was dismissed on demurrer, 5th September, 1873. In December, 1873, John M. Hill again sought to enjoin. The injunction was refused 18th January, 1874, and presents the case here for review.</p> <p>The first bill averred that Plarris ought not to collect full amount of his debt, because as follows : He and Dennis, B. P. Hill’s agent, fraudulently got Mitchell’s administrator to take $3,080 00 of Confederate money, which he got from Harris, and credited it on said note of $5,450 00, and then, or afterwards, Dennis and John M. Hill gave Harris a new note for $........., dated the ......... March, 1863, on account of said payment. Dennis signed B. P. Hill’s name to said note. Afterwards, on the 23d of February, 1867, the Hills gave Harris, in lieu of said note, their note for $3,438 51, due 25th December, 1867, and a mortgage on B. P. Hill’s land. This they did because Harris represented that he had purchased of Mitchell’s administrator the amount of $3,080 00 of the said land note, and took the administrator’s place, and that the note given by Dennis and John M. Hill was simply in lieu of their indebtedness to Mitchell for that amount. Dennis, in the meantime, died. They did not defend the suit because they believed said representations of Harris, and were advised that they could not scale the note. They discovered these facts during September term, 1870, of the court, but court adjourned before they could examine all the records and see the witnesses whom they believed could throw light upon the subject. The affidavit of illegality averrech-that Harris loaned /B,. I\. Hill, by his agent, on the 13th of March, 1863, $3,080 00, for which they gave their note, and they gave the note, of 25th February, 1867, in renewal thereof. To get this renewal Harris said that he bought a land note which Mitchell held on the Hills, when he had only loaned $3,080 00.</p> <p>The last bill says there were as many as five notes; that Dennis told B., P. when both Hills were at homo, that Harris had taken up a land note, and that the balance due thereon with interest to 25th December, 1863, was $3,248 87, and Harris desired to renew it and give time, and B. P. and J. M., and Dennis made this new note dated back to 22d March, 1863, supposed date of purchase. In 1867, Harris and Dennis repeated said representations and thus got the note sued on, for the one last mentioned, leaving Dennis off. Afterwards, Harris sued. John M. offered him $2,000 00 cash when service was acknowledged, but Harris declined, saying, the debt was for land. Counsel advised the note could not be scaled under the said facts, and no defense was filed. Meanwhile all the notes were taken up, as supposed, except one, which Mitchell’s estate held and sued. After judgment, and too late to move for new trial, Mr. Adams presented one of the notes. Then first they discovered the mistake or error, and suspected Harris. Harris asserted he had bought land note, and made contradictory statements, saying lie could not explain. When the former bill was drawn they did not know all the facts, and they hastened to prevent the sale. Harris denied the fraud charged.</p> <p>Harwell P. Hill, in his affidavit, swears that on 22d March, 1863, he gave the note $3,248 87, because Dennis said Harris had taken up his land note, and the renewal, in 1867, was given solely upon the idea aforesaid; that after judgment the $5,450 note was presented, and then, for the first time, deponent discovered Harris’ deceit.'</p> <p>The answer denied all fraud and concealment. It declared that John M. Hill was advised before Mitchell was seen, that Dennis and Harris were going to Mitchell’s to invest Harris’ Confederate'money in their note, and approved thereof, and said good notes were worth a premium. Harris does not renriember the exact manner of making the investment. He thinks he bought and took up one of their notes. At any rate, he paid Mitchell something over $3,000 00 of Confederate money which he held for his wards, collected on debts, and without an avowal that it was his money, and without any statement of the falsehood charged.</p> <p>Pursuant to the arrangement which he trusted Dennis, Hill’s agent, to complete, Dennis did bring him the note of B. P/Hill with Dennis and John M. Hill, as security for $3,-248 87. He, Harris, was not present, and had nothing'to do with getting this note. The gist of the arrangement was that for each dollar of Mitchell’s claim canceled by him, he should have the note of the debtors and give longer time, and this was fully understood by Dennis and Hill. He does not know what Dennis told them, but Dennis was honest. Was himself to give the note, and doubtless told the truth, Harris never said anything to the Hills about it, except after Dennis, who was perfectly good and solvent, offered his own note for $2,500 00 for the said note, and defendant declined. There was a negotiation to release Dennis by giving the Hills further time upon a mortgage security, and all that there was said touching the Mitchell trade was with a view of learning whether the note should be scaled, and th.e note was scaled about $900 00, and thus renewed in February, 1867.</p> <p>The answer set out the former bill and relief affidavit as estoppel, and also to contradict complainant’s present bill, and to show that the Hills had suffered no wrong, and if the Mitch-ells were injured, John Mitchell, long since discharged from his executorship, could not transfer the claim to Hill. It denied the tender. Person’s affidavit showed that Harris, and not Dennis, for D. P. Hill, paid Mitchell the money.</p> <p>1st. As to parties, see Hill vs. Harris, 42 Ga. R., 412. Harris solvent, discretion of Judge: 43 Ga. R., 176, 631; 42 Ibid., 386.</p> <p>2d. The matter is res adjudicate/,: See Field vs. Sisson et ed., 40 Ga. R., 67; Gillion vs. Massey, 41 Ibid., 221; Black' vs. Black & Hunter, 27 Ibiel., 46-7; Hill vs. Harris, 42 Ibid., 412.</p> <p>3d. The record shows such negligence as bars the plaintiff: See Hill vs. Harris, 42 Ga. R., 412; Code, secs. 3126, 3129, and cases cited; Bostwick vs. Perkins et al, 1 Kelly, 137,139. Ignorance and diligence must concur: Taylor vs. Sutton, 15 Ga. R., 107; Avery vs. United States, 12 Wallace U. S. R., 304. What diligence required: See Tindal vs. Harkenson, 19 Ga. R., 450; Castleberry vs. Scandrett, 20 Ibid., 246; Collier vs. Harkness, 20 Ibid., 362.</p>

<p>1. Where the charter of a bank provides that judgment obtained on its bills may be levied upon the individual property of its stockholders, upon a return of no property being made as to the bank, a stockholder who has had notice of the suit and made no defense thereto, has had his day in court, and cannot set up any defense which might have been made before judgment.</p> <p>2. Where an offer of compromise and settlement of pending litigation is made by the complainant to the defendants, and accepted by them, but the contract thus entered into is not executed by the payment of the money, the fact that complainant paid no further attention to the suit, and defendants obtained a judgment against him, affords no ground for an injunction against the enforcement of the execution based on such judgment.</p> <p>3. Suit was pending in favor of the defendants against the Bank of the Empire State, in which the complainant was a stockholder. In January, 1873, complainant wrote to defendants, proposing, as a compromise, to pay $2,000 00, in full of his liability. This offer was accepted on March 1st. No money being paid, on the 20th of the following May, defendants entered judgments against said bank for $10,668 32. Executions were issued, and returns of no corporate property to be found made. They were then levied on the property of the complainant. He sought to enjoin any further proceedings on said executions, because of the aforesaid compromise, and because the bank made an assignment of its assets for the benefit of its creditors, in 1866, and the-defendants, with other creditors, filed a bill in the district court of the-United State against said assignee, and recovered a decree for the assets then in hand. A part of these assets were certain bonds of the- ' county of Floyd, which were in litigation. The complainant alleged, that their value had never been credited on the aforesaid executions. The injunction was granted as prayed for. Subsequently, on the filing.of the defendants’ answer-and affidavits, the chancellor modified said restraining order, so far as to allow the execution to proceed for $2,000 00:</p> <p>Held, that the chancellor should hear evidence by affidavits as to the solvency of said bonds received by the defendants, and if the same shall be shown to be solvent, direct that the amount thereof be credited on. said executions, and that being done, that the injunction be dissolved.</p>

Equity. Before Judge ICiddoo. Quitman Superior Court. .May Term, 1873. The judgment sought to be set aside by the writ of error in this case, was reversed at the last term of this court in the case of William M. Tennille vs. Luoy Phelps el al. Any further report is therefore unnecessary.

<p>Municipal corporations. Fines. Constitutional law. Habeas corpus. Before Judge Harris. Glynn Superior Court. May Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Damages. Railroads. Before Judge Hopkins. Fulton Superior Court. April Term, 1873. Drysdale brought case against the Western and Atlantic Railroad Company for $25,000 00 damages for injuries to his person, and for $500 00 for expenses of nursing.

Administrators and executors. Legacies. Distribution. Debtor and creditor. Before Judge Clark. Macon county. At Chambers. November 21st, 1873. This case is fully reported in the decision, with the following statement: The third exception was that the master decided that the policy of insurance for $5,000 00 was not a part of the estate of G. W. Fish.