Volume 52 — Georgia Reports

Saw mill lien. New trial'. Before Judge Strozer. Dougherty Superior Court. April Term, 1873. Davis, as the lessee of a steam saw-mill, foreclosed a lien' against Kendall for $1,394 81, for lumber delivered at said mill, attaching to his petition and affidavit a bill of particuJars, every item of which was for timber, except one for $90 00, which was for extra services. Pie also foreclosed a lien against ICendall, as owner and partner with one PE.

Statute of limitations. Before Judge Andrews. Hancock Superior Court. April Term, 1873. Statute of limitations. Before Judge McCutci-ien. Gordon Superior Court. August Term, 1873. These cases, involving the same principle, were argued and decided together. Suit was brought in each case upon a contract entered into before June 1st, 1865. The- actions were instituted before January 1st, 1870.

Guardian and ward. Ordinary. Appeal. New trial. Verdict. Before Judge Hide. Houston Superior Court. May Adjourned Term, 1873. Barrett cited Howard, as his guardian, to appear before the court of ordinary of Houston county, for a settlement. After an investigation, the court rendered a judgment in favor of the defendant for eighty-five cents. The case, at the instance of plaintiff, was carried by appeal to the superior court.

Landlord and tenant. Before Judge Bartlett. Fulton Superior Court. April Term, 1873. The above head-note is by Judges MoCay and Trippe. How far the views of Chief Justice Warner differ, will be seen by reference to bis opinion. The case is there fully reported.

<p>1. When there is no process attached to the declaration, nor a waiver thereof, the judgment will be set aside.</p> <p>2. In such a case, if there has been an acknowledgment of service without a waiver of process, it is necessary to show that the process was intended to be waived, and that b^ accident or mistake the entry of such waiver was omitted, to entitle the plaintiff to supply such omission by an amendment nunc pro tunc.</p>

<p>1. An attachment affidavit to the effect “ that Philetus H. Holt, as commissioner over Thomas Taylor, a lunatic, is indebted,” etc., is a proceeding against Holt, individually, as the law of Georgia recognizes no such officer.</p> <p>2. An attachment does not lie in this state against a lunatic and his committee, both non-residents of the state.</p> <p>3. If, pending an attachment, the defendant die, and his administrator be made a party to the proceeding, with nothing more, and no notice be given, as provided by the 3309th section of the Code, the administrator stands precisely as did the deceased defendant. He may attack the validity of the attachment, and if his objection be good the whole proceeding falls. ■</p>

Sales. Principal and agent. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. The Eagle and Phenix Manufacturing Company brought complaint against Theophilus S. Fontaine, on an account for goods sold, amounting to $105 29. The defendant pleaded ' the general issue. The evidence made the following case : The defendant applied-to the secretary and treasurer of the plaintiff to purchase a bill of goods.

<p>Administrators and executors. Judgments. Before Judge Gibson. Richmond Superior Court. October Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Settlement.' Promissory notes. Factors. Interrogatories. New trial. Practice in the Supreme Court. Before Judge Buchanan, Troup Superior Court. November Term, 1872. The only ground of the motion for new trial necessary to be reported is the first, which was because the court erred in refusing to reject the deposition of R. T. Wilson, for the rea.son that the answer to the thirteenth cross-interrogatory was ^evasive and incomplete.

Garnishment. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. Prescott sued out process of garnishment on a judgment obtained on November 30th, 1872, in Muscogee Superior Court, for $526 85 against-James E., and Robert R. Thweatt, drawers, and Redd, Hatcher & Thomas, acceptors, and had the same served on John King. The garnishee answered, and a traverse was filed.

<p>Mandamus. New trial. Bill of exceptions. Before the Supreme Court. January Term, 1874.</p> <p>For the facts, see the opinions.</p>

Injunction. Before Judge Knight.. Lumpkin county. At Chambers. January 7th, 1874. VanDyke filed his bill against Martin and Satterfield, sheriff of Lumpkin county, making, substantially, the following On August 7th, 1860, one William Martin represented to complainant that he owned an one-fourth undivided interest in a certain lot of land in Lumpkin county, and could find the person who held the title to the other three-fourths.

<p>Whilst a prior purchaser of property on which there is a legal lien, may have an equity against subsequent purchasers of other portions of property on which the same lien attaches, to call upon them to discharge the lien in the inverse order of their purchase, and to the extent of the property they have purchased, if necessary, yet where the whole of the property has- been in fact sold at the same time, at public auction, and some of the purchasers failing to comply with the terms of sale, others subsequently take the portions bought by such purchasers so failing, the reason on which a prior equity in favor of the first purchaser is founded does not exist, and they are all bound to contribute to the discharge of the lien in proportion to the amount respectively purchased by them.*</p>

New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1873. Charlotte Bugg died testate, with the following provisions of her will of force : “Item.

<p>Equity. Wendor and purchaser. Landlord and tenant. Usury. Interest. Judgment. Before Judge Hopkins. Fulton Superior Court. April Term, 1873.</p> <p>For the facts of this case, see the opinions.</p>

<p>1. Under the Act of March 16th, 1870, a laborer could sue out a process to enforce his lien for labor performed either in the county of his employer’s residence, or where his property might be, but the process should be made returnable to the proper court of the county of defendant’s residence, if he reside in the state.</p> <p>2. The issue made in such proceedings by the counter-affidavit of the defendant, should be returned to and tried in the same court.</p> <p>3. The execution in this ease having been sued out in the county of Bibb, and made on its face returnable to the superior court of that county, and the defendant being a resident of the eounty’of Morgan, the judgment of the court below, setting aside the same, is affirmed.</p>

<p>Murder. Commutation. Circumstantial evidence. Jury. Verdict. Sentence. Before Judge Strozer. Dougherty Superior Court. April Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Criminal law. Assault with intent to murder. Before Judge Hale. Newton Superior Court. September Adjourned Term, 1873. Tom Smith was placed on trial for the offense of assault wiLh intent to murder, alleged to have been committed upon the person of one Arthur Jackson, on the 10th of May, 1873. The defendant pleaded not guilty.

Dormant judgment. Scire facias. Before Judge Strozer. Dougherty Superior Court. April Term, 1873.

<p>A brought a suit against B in the statutory form, upon an open account.. The bill of particulars attached to the declaration set forth the account Thus: “January 1, 1869. — “To rent of house in 1868, $150 00.” B pleaded that A agreed, in 1809, to let him have the rent of the house and pay him $75 00 for boarding his (A’s) son that year. The jury found for the plaintiff $150 00, the full amount of his claim, with the interest from the 1st of February, 1870. Afterwards, on the levy of the execution, a contest arose whether certain land was subject to be sold, and this depended on whether the debt was contracted before or after July 22d, 1868 :</p> <p>Held, that upon the face of the record it was uncertain whether the lot was rented in 1868 or 1869, and .it was error in the judge to refuse to permit B to show by parol, what was the true date of the renting. Warner, Chief Justice, dissented.</p>

Injunction. Trusts. Administrators and executors. Before Judge McCutchen. Gordon county. At Chambers. April 28th, 1874.

Criminal law. Accomplice. Witness. Evidence. Before Judge Rice. Clarke Superior Court. February Adjourned Term, 1873. Robert Childers, Derry Crane, alias Derry Harris, Sandy Boothe and Frank Lee, were placed on trial for the offense of robbery, alleged to have been committed upon the person of William T. Green, on May 18th, 1873. The defendants pleaded not guilty.

Criminal law. Murder. Verdict. Jury. Before Judge Rice. Walton Superior Court. August Term, 1873. Hammett was placed upon trial for the offense of murder, alleged to have been committed on the person of one Peter Roquemore on July 25th, 1873. He pleaded not guilty. The evidence as to the homicide having been committed by him was positive. The sole question was, as to what grade it belonged.

<p>1. By the express provisions of section 3888 of the Code, the place where interrogatories are executed should appear.</p> <p>2. If the owner of land rents it to one person for the year at a specified price, the relation of landlord and tenant exists between them by contract, and the landlord has the right, under the Code, to sue out a distress warrant against such person for rent due and unpaid, although he may have permitted another party to use and occupy the premises.</p>

<p>Pleadings. Amendment. Continuance. Before Judge Rice. Hall Superior Court. September Term, 1873.</p> <p>Blackwell brought complaint against Buffington on the following receipt:</p> <p>“$400 00. Received of Josiah S. Blackwell four hundred dollars. This November 26th, 1866.</p> <p>(Signed) “W. J. Buffington.”</p> <p>The defendant pleaded that he gave the receipt sued on to plaintiff’ as the agent of one Samuel Stephens; that the money receipted for was the property of said Stephens, who was indebted to the defendant in the sum of $2,000 00; that Stephens and defendant, being at Dahlonega, Stephens promised to pay defendant $400 00, but not having the money with him, he wrote a note to his wife, directing her to deliver to plaintiff a thousand dollar bill, and to tell him to go to Gaines-ville and to get the bill changed, and to pay to defendant said $400 00, which plaintiff did, and for which sum the aforesaid receipt was given.</p> <p>The case proceeded to trial with the pleadings in this condition. When the plaintiff closed his case, the defendant moved for a non-suit upon-the ground that the testimony showed that the plaintiff had no interest in the cause of action sued on. The motion was overruled.</p> <p>The plaintiff then moved to amend his declaration by suing for the use of Samuel .Stephens. The motion was allowed, and defendant excepted.</p> <p>The defendant thereupon moved for a continuance upon the ground of surprise at the amendment, by reason of which he was less ready for trial. The motion was overruled and defendant excepted.</p> <p>The ease proceeded and resulted in a verdict for the plaintiff. The defendant moved for a new trial, because the court erred in allowing the aforesaid amendment, and in refusing the motion for a continuance. The motion was overruled and defendant excepted.</p>

Bill of exchange. Protest. Notice. Evidence. Before Judge Strozer. Dougherty Superior Court. October Term, 1873. The Marine Bank brought complaint against Julia A. McLaren, as executrix upon the estate of' Davis Pace, deceased, as drawer, upon the following bill of exchange: “$3,677 54.

Sale. Principal and agent. Set-off. Purchaser. Charge of court. New trial. Before Judge Andrews. Elbert Superior Court. March Term, 1872.

<p>Common carriers. Southern Express Company. Presumption. Before Judge James Johnson. Muscogee Superior Court. October Term, 1872.</p> <p>Urquhart & Chapman brought case against the Southern Express Company for $200 00 damages, alleging that the defendant, on the 23d October, 1865, was a common'carrier, etc., from Savannah to Columbus, Georgia, and that plaintiffs caused to be delivered to defendant, and said defendant received and accepted from them, certain goods, describing them, and that said goods belonged to plaintiffs. Yet the defendant did not safely carry said goods from Savannah to Columbus and deliver them to the plaintiffs, but conducted itself so carelessly and negligently in the premises that the goods were lost, to the damage of plaintiffs.</p> <p>The defendant pleaded not guilty.</p> <p>Poster Chapman, one of the plaintiffs, testified as follows : The goods belonged to Urquhart & Chapman; were worth $......in New York; he shipped them by the Express Company from New York to Columbus; supposed iP was the Southern Express; delivered the receipts to S. H. Hill, agent of the Southern Express Company some years back, when Hill had notified him as agent of the Southern Express Company, that the goods were lost on Savannah river; cannot say if the receipt was an Adams Express or Southern Express receipt, but he was notified by Captain Hill, the agent of the Southern Express Company, that the box was lost on the Savannah river; that defendant was a common carrier, and S. H. Hill its agent.</p> <p>S. H. Hill testified for defendant as follows: He was agent of the Southern Express Company; a number of packages received per Adams Express Company by the Southern Express Company were lost on the Savannah river in 1865, and hé notified the shippers of the loss; thinks he did notify plaintiffs; has no recollection of plaintiffs’ leaving receipt with him, but they might have done so; does not say they did not. The Southern Express Company has had no one in New York since the war, authorized to issue receipts; the receipt must have been from Adams Express Company, and not from the Southern Express Company.</p> <p>The following charges were asked in writing and refused by the court: “If the jury believe from the evidence that these goods were shipped from New York by the Adams Express Company, deliverable in Columbus, and there is no evidence before you of a delivery by plaintiffs, or their authorized agent, to the Southern Express Company of these goods, to be by the Southern Express Company delivered to plaintiffs in Columbus, then plaintiffs are not entitled to recover of defendant.”</p> <p>Also, “if it appears from the evidence that these goods were shipped by plaintiffs from New York by the Adams Express Company, to be delivered in Columbus, and not by the Southern Express Company, and there is no evidence of a delivery by plaintiffs, or their authorized agent, to the Southern Express Company; but the proof is that the Southern Express Company took these goods at Savannah without the authority of plaintiffs, and it further appears that the plaintiffs are now suing this defendant in this action for a wrongful taking of said goods, then plaintiffs are not entitled to recover.”</p> <p>The court, on the contrary, charged the jury: “If plaintiffs have shown that they were the owners of the goods, that they shipped them from New York to Columbus, that these goods came into possession of the Southern Express Company as common carriers, and they were destined to Columbus; and further, that while in possession of defendant they were lost, unless by the act of God or the public enemies, they are liable to the plaintiffs in damages.”</p> <p>The defendant excepted to the- charge as given, and to the refusals to charge.</p> <p>The jury found for the plaintiff $118 42. Error is assigned upon the aforesaid grounds of exception.</p>

New trial. Verdict. Practice in the Superior Court. Before Judge Gibson. Burke Superior Court. May Adjourned Term, 1873. Needham Bullard brought complaint against James V. Jones and Joseph B. Jones, principals, and Henry W. Jones, security, on a note made on January 1st, 1866, payable to the plaintiff, or bearer, on January 1st next thereafter, for $2,191 23, with credits thereon amounting to $52 65. The record fails to disclose any plea as having been filed.

Promissory notes. Evidence. Fraud. Before Judge James Johnson. Jasper Superior Court. February Term, 1873. These three cases, involving the same point, were argued and determined together. The defendants in error brought complaint against the plaintiffs in error on three promissory notes, expressing on their face that they were “for money due on policy.” Each of the latter pleaded, substantially, as follows: On July 27th, 1870, William IT.

Equity. Wills. Probate. Jurisdiction. Fraud. Before Judge Herschel V. Johnson. Bibb Superior Court. April Adjourned Term, 1873.

<p>1. Where a levying officer makes a levy upon a portion of an entire lot, it is his duty so to divide the lot as not wantonly and grossly to destroy the nature of the property.</p> <p>2. When an execution against the Atlanta Medical College for less than .$200 00 was levied upon a portion of the lot upon which the college building is erected, and the portion levied on, as described in the entry on the Ji. fa., and as advertised and sold, was of such a character as that the line dividing the parts levied on from the parts not levied on, ran through the body of the building, having seven-tenths of the building on the part sold, and three-tenths on the part not sold :</p> <p>Held, that such a levy and such a sale was illegal and void as a wanton and gross injury to the defendant’s property, whether intended or not, and that on paying to the purchaser the money paid by him at the sale, and which had been appropriated for the defendant’s benefit, the college was entitled to have the sale rescinded.</p>

Wills. Probate. Monomania. Insanity. Order of argument. Onus probandi. Before Judge Schley. Chatham Superior Court. May Term, 1872.

Estoppel. Mortgage. Registry. Before Judge Hopkins. Fulton Superior Court. April Term, 1873. On the l§th day of July, 1866, William Markham, by deed of warranty, conveyed lo Holmes Sells, city lot number sixty-two in the city of Atlanta, comprising one-half acre of ground, fronting on Marietta street, and extending back to Walton street.

Practice in the Superior Court. Minutes. Motion. Before Judge Buchanan. Hall Superior Court. March Adjourned Term, 1873. Shaw brought assumpsit against Watson for $1,438 65, besides interest, on a cause of action unnecessary here to be set forth. At the September term, 1872, of Hall superior court, on demurrer to the declaration, it was dismissed by the Hon. C. D. Davis, the then presiding judge.

<p>X. As to her life estate in the property settled, the power of the wife was absolute, and she might sell or charge at her pleasure, except as restrained by law, and there being no proof of any notice to S., tlje defendant, that the purpose of the wife in making the note and mortgage was different from that stated by the trustee at the time S. became security, the verdict is not illegal.</p> <p>2. Under the evidence as contained in the record, the verdict does not come within that class of verdiets which justify this court in holding that it is an abuse of the discretion of the judge to refuse to disturb.</p> <p>3. No objections having been made in the court below, either by demurrer, or in the motion for a new trial, to the jurisdiction of the court over the prayer of the defendant, for the reform and foreclosure of the mortgage, it is too late to make that question in this court, even if it were a good objection had it been made in the court below, which we do not decide.</p>

<p>Distress warrant. • Landlord and tenant. Before Judge James Johnson. Muscogee Superior Court.' May Term, 1873.</p> <p>Taliafero brought debt against Wilkins and others, as securities upon the bond of John E. Ivey, deceased, late sheriff of said county, for an amount of money alleged to have been realized by said sheriff on the sale of certain property levied on under a distress warrant in favor of the plaintiff.</p> <p>Upon the trial of the case the following affidavit and distress warrant were tendered in evidence:</p> <p>“Before me, a justice of the peace in and for the county of Muscogee, personally, came Charles B. Taliafero, who being sworn, deposeth and saith, that John O’Pry rented from hirn his farm in said county for this year, and agreed to pay him for the rent of the same, four and one-half bales of cotton, first class, each to weigh five hundred pounds, and the halábale two hundred and fifty pounds, and to pay the same out of the first cotton gathered on his place, and by the middle of November next; and also promised to fix that part of the kitchen on said place that had been injured by the fire, and the said cotton would now be worth $528 75, and the said repairs Avould be Avorth $200 00. He further saith that said O’Pry is seeking to remove his goods from the said premises; he further saith that he claims from said O’Pry $728 75, made up of said íavo sums, as rent, and that he prays a distress warrant for the same, the said O’Pry having failed to make said repairs or pay said cotton.</p> <p>(Signed) “ C. B. TALIÁFEEO.</p> <p>“Savoiui to and subscribed before me</p> <p>“October 28th, 1869.</p> <p>(Signed) “Charles Coleman, J. P.”</p> <p>“GEOEGIA — Muscogee County.</p> <p>“ To'the Sheriff of• said county or his Deputy :</p> <p>Whereas, Charles B. Taliafero has this day made oath before me, that John O’Pry rented his place or farm for this year, and was to pay him four and a half bales of cotton by the middle of next November, for the same, and was also to do repairs on the kitchen, and the said cotton and repairs would be worth $728 75, and that the cotton has not been paid or the repairs done: These are therefore to command you to levy on any property of said O’Piy, whether to be found on said premises or elsewhere, a sufficiency to make the sum of $728 75, besides costs, by the sale of the property so levied on, and have you the said money at the next superior court to be held in and for the said county. In witness whereof I have hereunto set my hand, on this 28th October, 1869.”</p> <p>(Signed) “ Charles Coleman, J. P. [l.s.]”</p> <p>The defendants objected to said affidavit and distress warrant as inadmissible, the indebtedness set forth therein not being of such á character as would authorize tiie proceeding. The objection was overruled, and defendant excepted. Error is assigned upon said exception.</p>

Municipal corporations. Schools. Constitutional law. Laws. General assembly. Bonds. Negotiable securities. Before Judge Haul. Monroe county. At chambers.

Trusts. Debtor and creditor. Husband and wife. Before Judge Strozbr. Quitman Superior Court. November Term, 1873. At the May term, 1872, of Quitman superior court, James A. P. Methvin recovered a judgment against John Gill Shorter as principal, and William Harrison and Theodore L. Guerry, as executors of James Harrison, deceased, as security, for $2,112 00, besides interest.

<p>Equity will not enjoin a defendant from the free disposal of his property on the application of a creditor who sets up no lien upon or title to the property, and who presents no other equity than his simple fear that when he reduces his claim to judgment, he will not be able to find property on which to levy it.</p>

County matters. Tax. County commissioners. Officers. Election. Injunction. Before Judge Hall. Monroe County. At chambers. March 7th, 1873. Alexander Perkins and others, filed their bill against Smith Waller, the tax collector of Monroe county, making, in brief, the following case: Complainants are tax-payers of Monroe county, owning property therein to the amount of about $100,000 00.

Statute of limitations. Amendment. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. On October 23d, 1866, S. & J. Palmer & Company brought case against the Southern Express Company for $1,000 00 damages, for the failure to transport, as a common carrier, certain goods intrusted to it. On January 15th, 1870, the plaintiffs amended by adding counts in trover and trespass, alleging the conversion and wrongful taking to have been on October 26th, 1865.

Criminal law. Indictment. Perjury. Before Judge Knight. Milton Superior Court. August Term, 1873. George Hembree was placed on trial for the offense of perjury, upon the following indictment: “GEORGIA — Milton county: “The grand jurors, selected, chosen and sworn for the county of Milton, to-wit: * * In the name and behalf of the citizens of Georgia, charge and accuse George Hembree, of the county and state aforesaid, with the offense of perjury.

<p>Railroads. Charter. Before Judge Hill. Bibb county. At chambers. October 18th, 1873.</p> <p>The sole question made by this case is whether the Macon and Brunswick Railroad Company had the authority, under its charter, to construct its railroad into the 'city of Macon. Matthew R. Freeman, as trustee for his wife, owned certain city lots through which the road would pass, and sought to enjoin George H. Hazlehurst, the receiver of said company, from appropriating said property for that purpose.</p> <p>No question was made as lo compensation.</p> <p>The chancellor ordered the injunction to issue, and defendant excepted.</p>

Equity. Decree. Amendment. Debtor and creditor. Before Judge Schley. Glyuu Superior Court. November Term, 1873. A creditor’s bill was filed against'the Brunswick and Albany Railroad Company, to which Minnehan & Plazlehurst made themselves parties. Their claim was passed upon by the master appointed in said'case. Upon his report a decree was taken fixing the amounts, priorities, etc., of all the claims before the court, and directing the sale of the road.

<p>Constitutional law. Tax. License. Municipal corporations. Fine. Before Judge Underwood. Floyd county. At Chambers. March 20th, 1874.</p> <p>• McWilliams & Company et al., merchants, S. Holmes et al., clerks, John W. Janes, physician, R. I. Hampton, dentist, Benjamin Burns et al., contractors and mechanics, Halstead Smith et al., lawyers, William A. Reckling, photographer, Woodruff & Morgan et al., cotton buyers, A. 8. Caldwell, insurance agent, John C. Printup, railroad agent, and J. J. Vandiver, coal seller, all residents of and doing business in the city of Rome, filed their bill against the mayor and council of said city, making the following case:</p> <p>Your orators charge that the mayor and council of the city of Rome, under and by virtue of an ordinance passed on the 11th day of March, 1874, and an amendment thereto, passed by said body on the 13th day of March, 1874, require each and all of your orators, on or before the 17th day of March, 1874, to register their names, business or occupations, in the office of the clerk of the city council of said city, and to pay to the said clerk a fee of fifty cents for issuing a license to each of your orators, and to pay the following sums for license to follow their respective occupations in said city, viz:</p> <p>Merchants, traders, factors, commission merchants, or those engaged in selling goods, wares, produce or merchandise, whose average stock in trade is under $1,000 00, ............ $10 00</p> <p>From $1,000 00 to $10,000 00, 20 00</p> <p>From $10,000 00 to $25,000 00, ..................... 30 00</p> <p>All those averaging over $25,000 00,..................... 50 00</p> <p>Contractors,.................................... 25 00</p> <p>Clerks, book-keepers and railroad and steamboat ticket agents, insurance agents and telegraph operators, receiving a salary or wages of $600 00 per annum, or under, ............... 5 00</p> <p>And those over $600 00, ........................... 10 00</p> <p>Cotton buyers, each, ..............................25 OO</p> <p>Coal yards or agencies, ........................... 25 00</p> <p>Ice houses or agencies,..............................10 00</p> <p>Lumber merchants, .............................. 20 00</p> <p>That said mayor and council, in addition to said license taxes, have also levied a tax of one-half of one per cent, upon the gross sales of all merchants and commission merchants in said city, and require returns of said sales to be made quarterly.</p> <p>That said mayor and council, by said ordinance, require all artists, photographers, agents, lawyers, doctors and dentists, to make a quarterly return of their gross receipts, and to pay a tax of one-half of one per cent, thereon, the first quarter beginning on the 1st day of January, 1874, and ending on the 1st day of April, 1874; and insurance agents are required by the like authority to make like quarterly returns of their receipts, and to pay a tax of one-half of one per cent, upon their gross receipts.</p> <p>A copy of said city ordinance is hereto attached, and marked exhibit “a.”</p> <p>That said license and special taxes imposed upon your orators, and said taxes on gross receipts and on the gross sales of your orators, are unequal, unjust, not uniform, and that said taxes are imposed without authority of law, and that the said mayor and council have no authority to levy and collect the same.</p> <p>That the said mayor and council have exempted from the payment of said license -and registration taxes, and from the payment of said tax on gross sales and receipts, all carpenters and mechanics, and all other citizens not included in said ordinance; and that said exemption is unjust and illegal, and renders said taxes void, because not equal and uniform on all the citizens of said city.</p> <p>That said license taxes and fees are not taxes upon property, and are neither ad valorem nor uniform, and are contrary to law, illegal and void; and that said tax of one-half of one per cent, upon the gross sales and receipts of your orators is an additional tax to the ad valorem tax upon your orators’ property in said city, and is not an uniform nor ad valorem tax, and that no tax is imposed upon the gross sales or receipts of mechanics and other citizens of the city, and that said tax upon the gross sales and receipts of your orators is illegal and void.</p> <p>That under and by virtue of the said pretended ordinance, the said mayor and council have required your orators to make returns by the 1st day of April, 1874, or within ten days thereafter, of all the sales made by your orators, and also of all their receipts since the 1st day of January, 1874, and to pay a tax of one-half of one per cent, upon said receipts and sales.</p> <p>That they are ready and willing to pay all the taxes that may be legally imposed by said mayor and council upon all real and personal property owned by your orators in said city, when said taxes are assessed upon their said property ad valorem., uniformly, and equally, on all the property in said city, and do hereby tender and offer to pay the same in manner and form as aforesaid.</p> <p>That the said mayor and council have enacted an ordinance whereby they threaten, notwithstanding the protest of your orators, to enforce the payment of all said illegal taxes and fees by issuing fi. fas. against the property of your orators, and selling the same, and also to inflict fines, penalties and forfeitures upon them for failure to pay said illegal fees and taxes, as will appear by reference to exhibit “a.”</p> <p>That if said mayor and council are permitted to enforce the .payment of said taxes, licenses and fees, it will ruin the business of your orators, and will inflict irreparable injury upon them; that many of yóur orators are poor men and will be compelled to abandon their business in said city if their business is burdened with said excessive, unequal, unjust and illegal taxes, license fees, fines and forfeitures.</p> <p>That the enforcement of said illegal taxes and fees, fines and forfeitures, will cast a cloud over the title of your orators to their real estate owned in said city; and that if said tax fi. fas. are issued, and said fines are imposed by the said mayor and council, it will give rise to a multi picity of law suits between your orators and other citizens of said city and the said mayor and council. Wherefore, they pray the writ of injunction.</p> <p>The bill was subsequently amended as follows:</p> <p>And your orators do charge that each cotton buyer is required by said ordinance to pay said license tax. That your orators, Frank Woodruff and Samuel Morgan, are partners, carrying on the business of cotton buying in said city, under the name and style of Woodruff & Morgan, and that said mayor and council require each of your orators to pay a license, and will not issue a license to the firm of Woodruff & Morgan, but that said defendant issues a license to firms or merchants, contractors and others, upon the payment of a single license fee by said firms, and that said defendants do not require a separate license fee from the members of firms engaged in other business, and that said discrimination renders said license tax unequal, unjust, illegal and void.</p> <p>Your orators further charge and show unto your hon- or that there is located in said city a rolling mill, which manufactures annually a large amount of iron, nails, spikes, and railroad iron, and sells the same; a foundry and ma-' chine shop, and a stove and hollow-ware manufacturing establishment, manufacturing and selling large quantities of stoves, car wheels and axles, and other iron products; a mill manufacturing and selling large quantities of meal and flour; a shoe factory and furniture manufactories, all manufacturing and selling annually in said city large amounts of manufactured articles, and that by said ordinance, as amended since the filing of this bill, no tax is imposed upon the sales of said manufactured articles when sold by the said manufacturers, and that said exemptions from the tax of one-half of one per cent, imposed upon the gross sales of your orators, who are dealers and merchants, are unjust, unequal, illegal and void.</p> <p>(exhibit “a.”)</p> <p>“tax ordinance.</p> <p>“ The ordinance committee submitted the following ordinances, which were read three times and unanimously adopted, by section:</p> <p>“Section 1. Be it ordained, That for the ordinary current expenses of the city government for the year 1874, there shall be levied an ad valorem tax upon all real and personal property within the corporate limits of the city of Rome of one-half of one per cent.; the tax upon realty to be levied upon ils assessed value, and one-half of the same be called for and made payable on or before the 25th day of this month, the other half to be required and made payable on or before the 25th day of September next.</p> <p>“Be it further ordained, That all owners of personal property subject to taxation shall be required to make return thereof on or before the 15th day of April next, the amount and value of said property to relate to the 1st day of April, and the tax upon the same shall be one-half of one per cent. ad valorem, one-half of which shall be called for and made payable on the 25th day of April, and the other half on the 25th day of October next.</p> <p>“Section 2. Be it further ordained, That for the purpose of paying the interest on the public debt, and the $5,000 00 of the principal of bonds which mature in September next, and also for paying the balance of the floating debt of 1873, all being extraordinary expenses, there shall be levied upon all the real and personal property subject to taxation in said city an ad valorem tax of one per cent.; one-half of the tax upon the assessed value of the realty payable on the 25th of this month, (of' March,) and the other half payable six months thereafter; the personalty to be returned on or by the 15th day of April next, and one-half the tax thereon payable on the 25th day of April, and the other on the 25th day of October next.</p> <p>“Section 3.' Be it further ordained, That in addition to the ad valorem taxes required in the foregoing, there shall be levied for extraordinary expenses, to provide for payment of the public debt, a tax of one-half of one per cent, upon the gross sales of all merchandise, sold on commission or otherwise, in said city, .said sales to be returned under oath quarterly, and payable, when returned, on the first days of April, July, October and January, and covering the three months preceding the return. But the collector, in making up the amount due on each quarterly return, shall deduct from the return one-fourth of the value of merchandise given in by the tax-payer as being on hand, the first day of April, 1874, and collect the said one-half of one per cent, upon the remainder.</p> <p>“The term merchandise, in this section, shall include all goods, wares, products, produce, lumber, and materials of every description except cotton, held for sale by registered merchants or dealers.</p> <p>“Section 4. Non-resident itinerant or transient traders in produce, merchandise, or stock of any kind, shall be required to pay in advance one and one-half per cent, upon the value of the property held and oifered by them for sale, and shall, in addition, register their business and .pay license therefor, and shall pay on their sales one-half of one per cent, when called on by the city marshal: Provided, however, that when such persons employ a registered merchant, agent or dealer, to make sales for them, they shall not be required to take out license, and such registered merchant, agent or dealer, shall make return of said sales in his quarterly returns, and pay thereon only the tax of one-half of one per cent.</p> <p>“Section 5. All companies, firms, corporations or'persons hereinafter named, carrying on a registered business, or who are required to register their business, shall pay one-half of one per cent, upon their gross receipts, the same to be returned under oath, and payable quarterly on the first days of April, July, October and January, for the preceding quarter. Gas companies, artists, photographers and others; agents not specially mentioned ; warehouses, hotels, lawyers, doctors and dentists, insurance agents, and auctioneers, shall pay a tax of one-half of one per cent, upon the gross amount of their sales, to be returned and paid in like manner.</p> <p>“ Section 6. All persons coming into the city for the purpose of vending patent medicines, exhibiting or selling patent rights, or pursuing any business or calling not enumerated in existing ordinances, shall, before doing so, apply to the mayor, and at his discretion the tax shall be rated. The clerk shall then issue the license; but in no case shall the rate be less than $10 00.</p> <p>“ Section 7. For the purpose of keeping the streets and drains of the city in good condition and repair, there shall be required, during the year, nine days’ labor of each male inhabitant between the ages of sixteen and fifty, or in lieu thereof an annual tax of six dollars, one-half payable 25th day of April and the other half the 25th day of October; which tax shall be in commutation of their manual labor upon the streets of said city.”</p> <p>The following ordinances and rates of registration and license, as amended and corrected by council, are published for the information of all concerned:</p> <p>“ Section 1. Be it ordained by the mayor and city council, That every person, firm, corporation or company engaged in prosecuting or carrying on any trade, business or profession, within the corporate limits of said city, is hereby required to register their names, business, calling, trade or profession, annually, at such times as the mayor and council may, by resolution, from time to time, direct; any persons coming into the city, and so engaging in business, after that date in each year, shall so register within ten days after commencing such' business, calling, trade or profession, and pay for and procure his business license.</p> <p>“Section 2. No license issued by the clerk of council to any person, firm or corporation, shall be valid or sufficient until the same shall be countersigned by the mayor of the city, and registered by the clerk in a book to be kept for that purpose: Provided, that nothing herein contained shall invalidate any license heretofore granted, until the time for which the same has been issued expires.</p> <p>“ Section 3. Any person liable to be so licensed, who shall fail to take out such license, after the clerk has given ten days’ notice of his readiness to issue license, may, on conviction, be fined in a sum not exceeding $50 00 and costs.</p> <p>Section 4. Be it further ordained, that all persons, firms or corporations, engaged in any business, trade or occupation specified below, in the city of Rome, shall be required to register their various business, trade or occupation, and obtain a license, for which he, she or they, shall pay the amount hereafter set opposite such business, trade or occupation, in addition to a clerk’s fee of fifty cents, to be due and payable on the 17th day of March, 1874, and ending twelve months from that date.</p> <p>* =¡= * *</p> <p>“Section 5. Be it further ordained, That all persons, firms, corporations or companies doing business, of any description or character whatever, in said city, who are required to register and pay the license therefor, failing or refusing to register by the 17th day of March, 1874, shall pay. a double registry tax, and the clerk of council shall issue an execution therefor, which shall be collected by the marshal as other tax fi. fas. All persons, firms, corporations or companies, coming into the city after the 17th day of March, 1874, for the purpose of doing business in said city, are required to register and take out a license before commencing business, and on failure to do so, shall be subject to the penalties imposed by this section.</p> <p>“Section 6. All persons who have been licensed by the state or its authority to pursue or practice their callings shall not be required to take out license, but the tax above specified shall be collected from them.”</p> <p>AMENDMENT OF MARCH 13TH, 1874.</p> <p>On motion, the two following paragraphs were added to the registration license:</p> <p>“ S'reet brokers, .............................. $20 00</p> <p>Apothecary, ...... .......................... 10 00.”</p> <p>The ordinance committee submitted the following, amendatory to the tax ordinance, which being read three times, was .adopted:</p> <p>“ Section 8. Be it further ordained, That any person or firm, failing or refusing to make the quarterly returns of sales or receipts as required by law, shall be deemed guilty of having violated the ordinance requiring the same, and shall' be liable to pay a fine of fifty dollars for each failure.</p> <p>“Section 9. Beit further ordained, That the oath to be administered to persons making their quarterly returns of sales or gross receipts, shall be in the following words: ‘ You do solemnly swear or affirm, according to the mode of your faith, that the return you have just made is a just and true return of your sales (or receipts, as the case may be,) for the past quarter.’</p> <p>“Section 10. Be it further ordained, If any person, firm or corporation, shall fail or refuse to make a return of their sales, earnings or receipts, as required above, within ten days after the first day of April, July, October and January, it shall be the duty of the finance committee to assess the amount of such business in such sum as they may deem just, and if any person, firm or corporation, shall make a return that, in the judgment of the finance committee, is considerably less than should be returned, the committee shall assess such amount as they may deem just, and if the party so assessed shall object to said assessment, they may produce their books and the whole matter be referred to council for their determination.”</p> <p>The defendant answered as follows: It is true that the mayor and council of Rome, in pursuance of the power and authority granted to it by the general assembly of the state of Georgia, on the 17th day of February, 1874, by way of amendment to its charter, a copy of which act is hereto attached, marked “A,” passed the ordinance referred to in complainants’ bill, by which the said complainants are required to register their names, business, calling, trade or profession, on or before the 17th day of March 1874, which has been extended five days by a subsequent resolution of this defendant. It is also true that a fee of fifty cents is required to be ¡raid to the clerk for making such registration, and that the complainants are respectively required to pay the tax on their occupation or business, after so registering, as stated in said bill, except that, that portion of said ordinance requiring lawyers, physicians, dentists and photographers, to pay said tax has been and was repealed prior to the filing of said bill, and in deference to the construction put by this defendant on the 11th section of the general tax act of this state, passed on the 26th of February, 1874, and which prohibited such a tax. It is also true that this defendant, by virtue of said act of the legislature of Georgia, hereinbefore referred to, have levied a tax of one-half of one per cent, on all gross sales of all merchants and commission merchants doing business in said city, and require returns of such sales to be made quarterly. That said ordinance is a general law, and was not intended to be retroactive, and that since the filing of complainants’ bill, this defendant, by resolution, has disclaimed all purpose to collect any such tax on gross sales, made prior to the passage of said ordinance, so that the first return for this purpose to be made by complainants will only include their gross sales made between the 11th day of'March, 1874, and the 1st day of April of said year.</p> <p>Since the filing of this bill, defendant has repealed all that portion of said ordinance which requires a tax of one-half of one per cent, upon incomes of lawyers, doctors, dentists, artists, photographers, contractors, and upon the receipts or'incomes of all persons whatever, except upon gross sales and commission sales. This defendant respectfully submits that they are fully authorized and empowered to demand and collect the tax upon occupations and upon businesses, and also that it is fully authorized and empowered to collect one-half of one per cent, upon the gross sales and commission sales of all persons doing business within the corporate limits of said city, in addition to the ad valorem taxes of one and one-half per cent, levied by this defendant upon all the real and personal property within said corporation. This defendant further shows, that the value of the stock of complainants on hand, when they are required to return the same for ad valorem taxes, is deducted from the sum of their gross sales, so that they are not required to pay tax twice on their slock on hand.</p> <p>This defendant concurs with said -complainants that said tax on occupations' and businesses and on gross sales, is nota property tax, but respectfully submits if it were, the levy is equal, just and uniform. As to the power of this defendant to pass said ordinances, reference is made to the amended charter.herein:to attached, marked “a.”</p> <p>It is true this defendant has repealed that portion of the ordinance which imposed a tax upon the occupation of carpenters, mechanics and other artisans, and that many of said complainants were mainly instrumental in inducing (his defendant to make said repeal, and in inciting these classes of citizens to great dissatisfaction because said tax had been levied on them. This defendant was convinced by complainants and others that it was in error in levying a tax on the occupations of said persons, no other city in the state ever having taxed them, so far as defendant knows or is advised. Many of said persons are at work in the foundries and rolling mill in this city, and are poorly paid, and the levy of the tax would have been unproductive, and would have driven them from the city.</p> <p>This defendant has exempted no one within said city, or doing business there, from the payment of the tax required on gross sales or on commission sales, and now insists that all such persons shall be required to pay said tax whatever his business or occupation may be. It is conceded that said tax on gross and commission sales is not a property tax. It is submitted that there is no constitutional provision or law against it, or against the tax on occupations or businesses, and that the power to levy these taxes has been clearly granted to this defendant as aforesaid, and that said power has been, and is now being legally exercised.</p> <p>This defendant submits that the position assumed by complainants, to-wit: that nothing but real and personal 'property is taxable, is not tenable, and cannot be maintained, and certainly ought not to be, for all persons residing or doing business in the city ought to contribute to its support and to the payment of its debts.</p> <p>The tax on gross and commission sales and the tax on occupations and businesses can ruin no one. How the enforcement of this ordinance can cast a cloud over the tille to real estate in the city this defendant cannot see. But if, as complainants insist, the whole burden of the city’s debt and expenses is to fall upon real estate, it will so depress its value as to ruin its sale. This defendant respectfully shows that it is indebted to its several creditors in the aggregate sum of $410,000 00. That, to meet the ordinary expenses of the city, the interest over-due from last year and accruing the present year, together with $5,000 00 of bonds maturing this year, the sum of $59,000 00 will be required; and it is extremely doubtful whether all the taxes levied will raise that sum. This defendant has no personal interest, nor has any member of the council, in the questions raised by this bill further than that felt by any good citizen in sustaining the credit and paying the debt which hangs over the city.</p> <p>Defendant further says, that after the returns of personal property are made, to-wit: the first of April of each year, complainants, who are merchants, usually receive in store, by purchase and consignments, large amounts of goods, wares and merchandise, which are under the protection of the laws, ordinances and police regulations of said city, and also of its water works, and upon which goods, wares and merchandise, no ad valorem tax is assessed. From all such goods said complainants realize fair and legitimate profits — say upon their, purchases not less than ten per cent., and upon their consignments not less than five per cent. This defendant submits whether it is illegal or oppressive to collect from the sales of such property, so protected, so small a rate as one-half of one per cent, upon the sales thereof.</p> <p>(EXHIBIT a.)</p> <p>“an act</p> <p>“ To confer additional powers upon the Mayor and Council of the City of Borne.</p> <p>“Section 1. Be it enacted by the General Assembly of Georgia, That the mayor and council of the city of Rome shall have power and authority: “ 1 st. To require all persons, firms, companies and corporations, whether they reside within the'corporate limits of said city or not, engaged, or about to engage in any business, trade, calling or profession within said corporate limits, to register their names and business, trade, calling or profession, in the office of the clerk of council, at such time, and under such regulations as the mayor and council may prescribe. 2d. To require all bankers, brokers and commission merchants, to pay for their business license, during each year, a sum not exceeding $300 00. 3d. To require all l’etail liquor dealers to pay for their license not exceeding $1,000 00 per annum. 4th. To require all other liquor dealers, including druggists who sell for other than medicinal purposes, to pay for such registration and license not exceeding $500 00. 5th. To require all other persons to pay for each -registration and license not exceeding $50 00. 6th. To require all registered persons, firms, companies and corporations, to make stated returns of the gross amounts of their sales and to pay a tax thereon not exceeding one per cent. 7th. To require all persons selling goods on commission to make quarterly returns of the amount sold, and to pay a tax thereon of not exceeding one per cent. 8th. To alter and fix the time for making tax returns and to provide for the collection of taxes quarterly, semi-annually or yearly, and to have the assessment of property made in accordance therewith.</p> <p>“Section 2. Be it further enacted, That the mayor and council of said city shall have power and authority to require all persons residing in the limits of said city, subject to road duty under the laws of this state, to work on the streets of said city at such times and places as the said mayor and council shall determine, for fifteen days in each year, under the same rules as to the division of said number of days as obtain in the general law of the state, and said mayor and council, or a majority of them, shall have the same authority to enforce said street work as the road commissioners of this state have to enforce road duty in this state, to impose fines for the neglect of the same and to have all the powers over the same as road commissioners have in this state: Provided, That any person so liable to road duty may be allowed to commute the same by paying the said mayor and council such amount as the mayor and council may determine, not to exceed the sum of $10 00.</p> <p>“Section 3. Beit further enacted, That said mayor and council shall have power, 1st. To require all transient or itinerant traders to pay a tax of not exceeding two per cent, upon the amount of all sales made within the city. 2d, To have assessed the value of all real estate, depots and buildings, tracks and right of way, lying within the city, belonging to each and every railroad company having its terminus in, or passing through, said city, and to collect an ad valorem tax thereon: Provided, however, That this shall not apply to any railroad company which makes return of its capital stock to said city, and pays the taxes thereon. 3d.' To levy and collect an ad valorem tax upon the value of each and every steamboat owned or controlled by citizens of said city, plying to and from the city of Rome, which has the chief office of the company within the limits of said city. 4th. To levy and collect an ad valorem tax upon the assessed value of each and every toll bridge over the rivers adjacent to said city, and to regulate the management of said bridges so far as to insure the public safety and convenience in crossing the same. 5th. All real estate sold under tax fi. fas. for taxes due to the city shall be subject to redemption for'one year after sale: Provided, the defendant in said fi. fas. shall pay the amount of said tax and all costs, and twenty per cent, additional thereon.</p> <p>“Section 4. Be it further enacted, 1st. That said mayor and council shall have power and authority to regulate or prohibit the running at large of cattle, hogs or other animals upon the streets of the city. 2d. To seize, impound and sell, or otherwise dispose of, animals found running at large upon the streets, contrary to said regulations and prohibitions.</p> <p>“Section 5. Be it further enacted, That the boundaries of said city shall extend to and include the southeastern or opposite bank of the Etowah river, and the northwestern or opposite bank of the Oostanaula river, at all points where said rivers ai’e adjacent to-said city; but this limitation shall not militate against the jurisdiction heretofore granted over Myrtle Hill Cemetery, and the road leading thereto.</p> <p>“Section 6. Be it further enacted, That tlie mayor of said city shall have the right to veto any ordinance, resolution or other measure that may come before the council, and said veto shall defeat the same unless it shall be passed by two-thirds of the members thereof. This provision shall not, however, apply to elections of city officers, and in such cases the mayor shall have the right to give the casting vote in case of'a tie.</p> <p>“Section 7. Be it further enacted, That the mayor and council shall have authority to make and select a board of health, with all the rights, powers and privileges now belonging to that body under existing laws and ordinances, or such as ■may hereafter be conferred legally by said mayor and council.</p> <p>“Section 8. Be it further enacted, That said mayor and city council shall have power and authority to pass all the ordinances, rules and regulations necessary to carry out the provisions of this act, and to enforce the same.</p> <p>“Section 9. Be it further enacted, That all laws and parts of laws conflicting with this act be and the same are hereby repealed.</p> <p>“Approved February 17, 1874.”</p> <p>The chancellor rendered the following decision:</p> <p>“After hearing argument, and after carefully considering the questions made, which are deemed to be material, I decide as follows: Courts have ever regarded tax laws, or laws imposing taxes, with jealous care, and with reference to the subject matter, they are divided into three classes — capitation, property and income, and when one or more is treated of, or acted upon, the other is never intended. The legislature of this state has omnipotent power over these subject matters, ■controlled only by the constitution of the United States and of this state. The limitations are briefly: “No state shall levy any capitation tax or tax on exports or imports, except,” ■etc. “Taxation on property shall be ad valorem only,'’and .uniform on all species of property taxed.”</p> <p>“ The legislature has the power to grant to the authorities of towns and cities the power of taxation for municipal purposes, in subordination to the constitutional limitations. A municipal corporation cannot exercise the power of taxation, except in pursuance of an express grant or the clearest implication. In the construction of statutes, made in favor of corporations or particular persons, and in derogation of common right, care should be taken not to extend them beyond their direct terms, or their clear import. Statutes which impose restrictions upon trade, or common occupations, must be construed strictly. Statutes levying taxes should be construed most strongly against the government and in favor of the citizen. Revenue statutes are in no just sense remedial laws, and are not therefore to be liberally construed. All doubts should be resolved in favor of the citizen, and the doubt should absolve the tax-payer.</p> <p>“ The act or law of the general assembly of this state, approved February 17th, 1874, to confer additional powers, etc., confers on the mayor and city council of Rome, in direct terms; power and authority to require a license fee or registration fee of bankers, brokers, commission merchants, retail liquor dealers, and all other liquor dealers, including druggists who sell for other than medicinal purposes, and no express power or authority is conferred in direct terms to require such fee from any other class of persons.</p> <p>“Express power and authority is also conferred to require all persons, firms, companies and corporations, whether they reside within the corporate limits or not, engaged, or about to engage, in any business, trade, calling or profession within said corporate limits, to register their names and business, trade, calling or profession, in the office of the clerk of council at such time and under such regulations as the mayor and council may prescribe. The fee of fifty cents to- the clerk is a legal and valid regulation.</p> <p>“The mayor and council have the power and authority to require all persons, firms, companies and corporations thus registered, to make stated returns of the amount of their gross sales, and to require the payment of one-half of one per cent, levied by the ordinance of the city upon the gross amount of such sales; and this includes all sales made on commission, and have the power to enforce the payment of the tax by fine or execution, or both.</p> <p>“The tax on the amount of gross sales is not a tax on property, or the sale of properly, but is a tax on the amount of sales, and is no way in conflict with the constitution of this state, and does no violence to the ad valorem principle or to uniformity.</p> <p>“In requiring the registration of firms, each member of the firm may be required to register and to pay a license fee, in cases where the power to require such fee is given in direct terms.</p> <p>“It is therefore ordered by the court that the bill be sanctioned, and that the writs of subpoena and injunction issue,' restraining the mayor and council of Rome from levying and collecting a license or registration fee, from any and all persons except banker’s, brokers, commission merchants, retail liquor dealers, and all other liquor dealers, including druggists who sell for other than medicinal purposes; and from enforcing the payment of fines for violation of the ordinances by imprisonment, except the street tax. Injunction is refused as to all persons, firms, companies or corporations, of whom license fee is required in express terms, and as to the payment of the tax on the gross amount of sales made by registered persons, or persons expressly required to register, including commission sales.”</p> <p>Complainants and defendant both excepted to the judgment of the chancellor. By agreement of counsel, the cross-bills of exception were consolidated and heard together.</p>

Injunction. Coporations. Before Judge Underwood. Polk county. At chambers. April 13th, 1874. Jones filed his bill against the Cherokee Iron Company making, in substance, the following ease : An act of the legislature of February 18th, 1873, incorporated A. G. West, J. H. Browning and A. Griffith,.and such other persons as they might associate with them, as the Cherokee Iron Company, located in the county of Polk, with power only to make and manufacture pig iron.

Money rule. Laborers’ and mechanics’ liens. Executions. Attorneys. Fees. Before Judge Harvey. Floyd Superior Court. May Term, 1873. W. M. Yarborough and W. M. Bray procured a rule against John H.' Lumpkin, sheriff, requiring him to show cause why he should not pay oyer to them the amount due on their executions against Stogner Bray, based on judgments obtained November 21st, 1872, out of funds in his hands, realized from the sale of the property of the defendant.

Taxes. Lien. Revenue laws. Before Judge Underwood. Murray Superior Court. September Term, 1873. Lorenzo P. Gudger brought ejectment against Robertson Bates and Leonard E. Cline, for lot of land three hundred.and ten, tenth district, third section, of Murray county. The defendants pleaded not guilty and title in their lessor, Joseph Phillips. He, on motion, was made a co-defendant.

Criminal law. Accessory. Verdict. Practice in the Superior Court. New trial. Before Judge Hopkins.' Fulton Superior Court. October Term, 1873. Charles McCoy was jointly indicted with Clem Harris, Dred Darden and Floyd Reed, for the offense of larceny from the person, alleged to have been committed upon the person of C. V. Furlow, on November 29th, 1873. He was separately tried. The jury returned a verdict finding him guilty as an accessory after the fact.

• Criminal law. Continuance. Evidence. Attorneys. Witness. Charge of court. Jury. New trial. Before Judge Bartlett. Wilkinson Superior Court. October Term, 1873. McRae was placed on trial for the murder of Green Porter, alleged to have been committed in August, 1871. The defendant pleaded not guilty. When the case was called, he moved for a continuance on account of the absence of two witnesses, Jacob Lassiter and Wash Baum.. Upon call, the first came into court.

<p>Will. Receipt. Estoppel. Parent and child. Advancement. Notice. Record. Trusts. Before Judge Strozer. Dougherty Superior Court. April Adjourned Term, 1873.</p> <p>On the 4th day of January, 1851, Benjamin 0.‘Keaton executed in due form of law his will, by the first item of which he provides for the division of his entire estate into five equal lots or shares, and by the second and third items he sets apart two of said five, shares, one to each of his two sons, Benjamin W. Keaton and 'William W. Keaton, vesting the' fee in his grand-children, with power to his two said sons to manage and control said property during their natural lives, using the proceeds and profits for themselves, and for the support, maintenance and education of their children, and at the death of said sons all to go to the children. By another subsequent item he provides that in the event of the death of either, without children or wife, then the share of that one was to go to his grand-children,- each family of them to take share and share alike, and in the event either of said sons left a wife with surviving children, then the wife to control for the children in the same manner as the husband did until her death or marriage. There were other items not directly bearing on the issues in the case. Said Benjamin O. Keaton, after executing said will, to-wit: on the 30th December, 1854, delivered to one of said sons, William W. Keaton, a large amount of real and personal property, embracing lots of land numbers seventy-nine and eighty, in the second district, and number four hundred and twelve, in the first district, of. said county, valued at $8,000 00, and took from said William W. Keaton the following instrument in writing:</p> <p>“The following negroes, to-wit: * * * * Also those three lots of land distinguished by the numbers seventy-nine and eighty, in second district, and four hundred and twelve, in the first district, of Dougherty county, and valued at $8,000, which I receive from my father, Benjamin O. Keaton, as a part of my portion of his estate under his will, and which I am to have and to hold as his will directs, after his death, and which is to be taken and considered as a part of my portion of said Benjamin O. Keaton’s estate, directed to be given me in the will aforesaid. Albany, December 30th, 1854.</p> <p>(Signed) “ W. W. KEATON.</p> <p>“Signed in the presence of William W. Cheever.</p> <p>“Youel G. Rust, Notary Public. [l.s.]”</p> <p>Recorded in the clerk’s office of the superior court, 19th January, 1855.</p> <p>And on the 7th June, 1854, said Benjamin O. Keaton had taken just such a writing from his son, Benjamin W. Keaton, except that it was for different personal property, and for lots four hundred and twenty-one, in the first district, and four hundred and forty-one, and two hundred and eighty, in the second district, of Dougherty county, and known as the “ James Keaton place,” valued at same price, $8,000 00, signed by B. W.'Keaton, and witnessed by Marx Smith and John Jackson, J. I. C. Recorded in clerk’s office superior court, August 5th, 1854.</p> <p>On the 1st day of June, 1856, said Benjamin O.' Keaton sold, and executed a deed in fee simple,to said sons, William W. and Benjamin W. Keaton, eight-hundred and eighty-eight acres of land adjoining the said lots in dispute, making a settlement, when added to the fifteen hundred acres in dispute, of two thousand three hundred acres. On the 15th December, 1859, William W. Keaton executed a deed in fee simple to Benjamin W. Keaton, of all his interest in the lands in dispute and others. On the 3d December, 1862, Benjamin W. Keaton executed a deed in fee simple to Leonidas A. Jordan to said lands in dispute, with other lands adjoining, aggregating two thousand four hundred and thirty-nine acres, of which Jordan took possession. William W. Keaton had, before this, taken possession of lands in Baker county, which in part he obtained from Benjamin W. Keaton for his interest in the Dougherty county lands. Benjamin W., after his sale to Jordan, bought and settled upon two thousand seven hundred acres of land in Early county. In the first part of the year 1862, William W. Keaton died, leaving neither wife nor children, and about Christmas eve, 1868, Benjamin W. Keaton died, on the Early county place, leaving a wife and three or four children — plaintiffs in error- About one year thereafter said widow intermarried with J. E. Hightower, who after-wards became the guardian of said Benjamin W. Keaton’s children — all minors. Said Benjamin O. Keaton had, besides said two sons, a daughter and a younger son. The daughter intermarried about 1850 with W. W. Kendrick, and died about 1868, leaving five children, all minors at the institution of this suit, and plaintiffs in error therein, by their trustee, Benjamin O. Keaton. About the year 1869, the father of these children, W. W. Kendrick, also died.</p> <p>Thus stood the parties and their titles to the land in dispute at the commencement of suits in ejectment in November, 1869, by Benjamin O. Keaton, trustee for the children of W. W. Kendrick, and J. E. Hightower, as guardian of the children of Benjamin W. Keaton, in Dougherty Superior Court, vs. Leonidas A. Jordan. Pending' said ejectment suits, and in the month of September, 1870, said Jordan filed his bill in said court for relief, etc., against said plaintiffs in ejectment, praying a discovery and injunction, which injunction was granted by the judge of said court until the hearing, and to which bill Benjamin O. Keaton filed his answer," January 8th,. 1871, and upon this bill and answer, with the evidence that follows, was the trial had, at April adjourned' term, 1873. The bill set out, as exhibits, the deeds and receipts, as before set forth, and the suits in ejectment, and alleges that under said receipts and deeds a good and perfect title to said lands passed to Jordan from William W. and Benjamin W. Keaton, and that Benjamin O. Keaton had full knowledge of the trade at the time it was made, and not only made no objection to it, but approved it, and promised to bring in or send the back titles to Jordan, and that they were so brought or sent. The bill also set up that the funds paid by Jordan to Benjamin W. Keaton, went to purchase the lands in Early— two thousand seven hundred acres. It was agreed between the attorneys for complainant and defendants, that the answer of Hightower be dispensed with, as Benjamin O. Keaton, -who had filed his answer, knew more of the matter than High-tower. Complainant’s bill prayed a decree for perpetual injunction against the ejectment suits.</p> <p>Defendant’s answer denied the charges in the bill that there was any title in William W. and Benjamin W. Keaton in fee to said lands from him, by gift or otherwise, but alleged that they merely held them in trust for defendant’s grand-children, the plaintiffs in ejectment, and that the said lands were delivered to said William W. and Benjamin W. Keaton by him, B. O. Keaton, under said receipts, with the terms in his then existing written will well known to them and thoroughly understood by them; that they received said lands in^ trust for said grand-children, and they so took and held' them, and that he had no knowledge of their setting up a prior claim in themselves until the' sale was made to Jordan in 1862, and then not until the sale was made and completed, defendant refusing to recognize or consent to it. The answer further showed that three pine woods lots, first.given to Benjamin W. Keaton in the receipt, were, at his request, changed and three lots in the oak woods substituted, and that said Benjamin W. received and took possession of them under the same trusts and limitations. Also denies the charge of having consented to the trade to Jordan, and of any conversation with Jordan ou .the subject, or of consenting to the delivery of back titles; also, that he had no knowledge of the investment, so far as the Early county lands were concerned, and asks that complainant prove it; but answers that the Early county lands did not cost one-half of the lands in dispute, and was not now more than one fourth their value; and denies the purchase of the stock with the funds of Jordan; also states that the will before alluded to and set out as an exhibit to the answer, was his will at the time, and is yet, and will be at his death; that its terms, referred to in the receipts, were well known and fully understood atibe time the receipts were executed and the property delivered; -that the said William W. and Benjamin W. -Keaton so received the property under said receipt in trust as aforesaid, and so continued to hold it, so far as defendant knew, until the time aforesaid, in 1862.</p> <p>Said receipts, deeds and will, were all introduced in evidence, and Henry Turner testified that he was overseer upon the place in dispute for Benjamin W. and William W. Keaton in 1855, 1856 and 1857; they treated the land as their own and claimed it as such, so far as he knew; Benjamin O. Keaton was frequently on the place, sometimes as often asftwo or three times a week, and must have known of the sale from William W. to Benjamin W. Keaton, but could not say that he ever heard him say the land belonged to them; only heard him say to them that the land he had given them and the land he had sold them would make them a splendid plantation; also, that Benjamin W. Keaton built a good framed dwelling house, and made other improvements on his place, and gathered and sold crops as if the place were his own.</p> <p>Jordan testified, that not long after he bought said lands of Benjamin W. Keaton, Benjamin O. Keaton said to him that Wash had made a good trade, and that" he (B. O. Keaton) would send him the back deeds to the land, and that he after-wards got them from Vason & Davis, Jordan’s attorneys, but could not say who gave them to Vason & Davis; that he had no notice of the said will and receipts, but never examined the records as to Benjamin W. Keaton’s title.</p> <p>Y. G. Rust testified for the defendants, that he drew and witnessed the receipt from"William W. Keaton to Benjamin O. Keaton; they were both present'at the, time, and thinks the will was present; his reason for thinking so is, that when, he drew the receipt, the terms of the will were understood by him, and as he never saw it before or after that time, thinks he must have seen it then, but of this he is not positive; that he drew the receipt by one of a similar kind.</p> <p>Henry Morgan identified the will, having drawn it for Keaton and witnessed it in 1851.</p> <p>Benjamin O. Keaton testified substantially to the facts stated in his answer. Also,'that there'was, in the year. 1862, about seven hundred acres of cleared land on the premises in dispute, which was worth, from that time to the trial, $>3 00 per acre per annum, in good money.</p> <p>The jury found for complainant, and a decree was accordingly entered. The defendants moved for a new trial upon numerous grounds, which are not set forth for the reason that the exception 'to the charge of the court presents substantially the issues of law made.</p> <p>The^ourt charged the jury as follows: “If you should be of opinion, from the testimony, that Benjamin O. Keaton gave to his sons the lands in dispute, then he had the right to place upon it such limitation as the owner thought proper to reserve or place upon it. If you believe from the evidence that respondent placed his sons in possession of the premises to hold in trust for other persons, and the same was declared, and the sons accepted the gift, then the sons would hold as trustees for their eestui qwe trusts, and would be liable. Should you believe that the gift was made as above stated, if they sold the estate to an innocent purchaser — that is, without notice, either actual or constructive — then he would hold the property free from such trust; his title to the property would be good.</p> <p>“In order for a gift to be good, there must be an intention by the owner to give, an acceptance by the donee agreeable to its terms. A gift to a cliikl may arise in this wise: where he has exclusive possession of lands belonging originally to the father, without payment of rent for the space of seven years, raises a conclusive presumption of a gift and conveys title to the child, unless there is evidence of a loan or a claim of dominion by the father acknowledged by the child, or a disclaimer of title by the child. What is the evidence on these points, applied to .the law as thus given ? Was there a gift in writing? And was there any trust reserved, and if so, did the trustee sell the property to a bona fide purchaser, or did the purchaser have actual or constructive notice of the trust ? Or did the son go into the possession of the land of his father, and he and his vendee hold the same for seven years, not being a loan ? Did the father claim any dominion over it, and did the child acknowledge it? If so, and the complainant was notified, or had notice of it, then complainant would be bound by it. But if the owner stood by and permitted complainant to purchase without the assertion of any dominion over it, and permitted complainant, under a purchase from his sons, to go on and make valuable improvements upon it, then he would be bound by such acquiescence.</p> <p>“In order for the record of an instrument to become notice to a party, it must be such an instrument as the law requires to be recorded. But if the property was given them in trust for a third person, and the same was in writing, or declared in writing, then they would hold as trustees for the cestui que trust, and could not divest his right to pursue the property, unless it was to a bona fide purchaser without notice of such trust. And such trust may be evidenced by any writings that show the intention of the party to create a trust.”</p> <p>The motion was overruled and defendants excepted.</p>

Corporations. Stockholders. Illegality. Before Joseph P. Carr, Esq., Judge pro hac vice. Richmond Superior Court. April Adjourned Term, 1873. Heard recovered a judgment against the Mechanics’ Bank, of which Sibley was a stockholder. Within the time required, after the institution of the suit, notice was given in the Chronicle and Sentinel, a gazette published in Augusta, in. conformity to section 3371 of the Code.

Administrators and executors. Witness. . Husband and wife. Presumption. Before Judge Rice. Gwinnett Superior Court. September Adjourned Term, 1873. Held: that the marriage cast the lands on W. A. Green, in 1854, and on his death, in 1859, they went.to his heirs, and not to his widow by survivorship.

Debtor and creditor. Tender. Before Judge Buchanan. Campbell Superior Court. February Term, 1874. Sion P. Steed brought complaint against John Terry on the following note : “$2,000 00. One day after date I promise to pay Sion P. Steed or bearer, twenty hundred dollars, cash borrowed. January 19th, 1864, (Signed) “ John Terry.” The defendant pleaded the general issue, Confederate money consideration and tender.

<p>Contracts. Statute of limitations. Stock. Before Judge Gibson. Richmond Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Injunction. Fraud. Before Judge Buchanan. Troup county. At Chambers. September 22d, 1874.</p> <p>Gorham filed his bill against Bigham, making, in brief, this case: In April, 1860, complainant purchased from Samuel and J. W. Akers, a tract of land in Troup county, taking a deed therefor and giving his notes for the purchase money. Afterwards, during the same year, complainant sold a portion of said land to one B. M. Richardson, for $3,500 00, giving him a deed thereto and taking his notes for the purchase money, which was to be paid in six payments, the first note being for $507 50, and due January 1st, 1861. An arrangement was then made between the said Akers and their attorney, the defendant, of the one part, and complainant of the other; by which the Richardson notes, indorsed by complainant, were turned over to the defendant, representing the Akers, as collateral security to secure the notes given by complainant. When' the first one of these collaterals became due, complainant notified defendant to institute suit thereon, which was accordingly done, complainant being sued as indorser. It was subsequently ascertained that Richardson would be unable to meet his notes, whereupon an agreement was entered into between complainant and him by which the land was to be returned and the notes delivered up. Accordingly, Richardson, on the back of the deed executed by complainant, transferred and relinquished to him all claim on the land, and complainant delivered to him all of his notes except, perhaps, the one upon which suit had been brought, and if this was not returned, it was due to the fact that it was inaccessible. But whether delivered up or not, the trade between Richardson and complainant was canceled, as was well known both to the Akers and defendant, and assented to by them.. Complainant has since paid Akers in full for the land, principal and interest. It was also well understood between complainant and the defendant that the suit pending against Richardson, as maker, and complainant, as indorser, on the aforesaid note should be considered settled and at an end. Notwithstanding this agreement, said defendant, without the knowledge or consent of complainant, allowed said case to remain cupón the dockets of Troup superior court until the May term, 1866, when he entered a judgment in his own favor thereon. Execution issued on this judgment on June 2d, 1866, but •complainant never heard either of the judgment or of the •execution until early in the year 1873, when defendant mentioned the subject to him. A levy was made on April 7th, 1869, on lands which had formerly belonged to complainant, and to which he had given a title with warranty, but no notice thereof was ever given to him; Defendant did not have said note in his possession at the time he entered the judgment in the suit against complainant and Richardson. Said levy is now being pressed to a sale. Waives discovery, and prays the writ of injunction.</p> <p>The answer of the defendant presented in a most plausible manner the improbability of the facts alleged in the complainant’s bill; stated that his recollection of the circumstances under which he came into possession of the note was very indistinct, but failed to deny specifically and positively the material facts charged therein.</p> <p>The chancellor ordered the injunction to issue, and the defendant excepted.</p>

Attachment. Pleading. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874.

Criminal law. New trial. Before Judge Buchanan.' Coweta Superior Court. March Term, 1874. Frank Hastings was placed on trial for the offense of murder, alleged to have been committed upon the person of Wesley Camp on January 16th, 1874. He pleaded not guilty. Dr. A. B. Calhoun, D. H. Simms and John Lester, testified as to the character of the wound-on the body of deceased, his position when found, and the distance of the body from town when discovered.

<p>Where the sheriff levied upon property of the principal pointed out by the security, and a claim was interposed thereto which was subsequently dismissed for some technical defect, and the amount due paid to the plaintiff in fi. fa. by the security:</p> <p>Held, that the sheriff was not liable to be attached for contempt for failing to proceed with said execution, in the absence of further instructions from such security.</p>

County court. Officers. Levy. Execution. Before Judge Pottle. Hancock Superior Court. April Term, 1874. William A. Flury, as agent for his wife, Sarah F. Flury, sued out a distress warrant against Joseph Dickens et al. for $150 00.

<p>Assuming that the relief act of 1868 is a valid, constitutional law, in order to entitle a defendant, under the provisions thereof, to scale a judgment against, him, his motion must state the special and particular damage to which he has been snbj°cted by the act of (he plaintiff. The general statement that he has been damaged far beyond the amount of the debt now due is insufficient.</p>

Scire facias. Administrators and executors. Injunction. Judgments. Superior court. Inferior court. Before Judge Pottle. Richmond Superior Court. October Term, 1873. Glendenning, as administrator upon the estate of Jerry-Reed, deceased, filed his bill against Ansley & Company, making, in brief, the following case: In the year 1867 he was appointed administrator upon the estate of Reed, deceased, and immediately took possession of the assets thereof.

<p>Equity. Judgments. Before Judge Kiddoo. Early Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Contracts. Corporations. Pleadings. Joint promissors. Before Judge McCutchen. Whitfield Superior Court. April Term, 1874. Suit was brought against the defendant in a justice court. The case was carried by appeal to the superior court. The jury found for the plaintiff. The defendant moved for a new trial, among other grounds, because the court erred in charging the jury as follows: “It is immaterial whether St. Mark’s Episcopal Church is a corporation or not.

<p>1. Where a continuance is asked on account of the absence of the defendant for providential cause, the facts must be made to appear to the court by affidavit or other competent evidence. A letter from the defendant to his counsel, and his declarations to third persons are not sufficient.</p> <p>2. No brief of evidence having been filed, the motion for a new trial was properly dismissed. Aliter, had it been a motion to set aside the verdict.</p> <p>3. To authorize the setting aside of a verdict on account of the defendant having been providentially prevented from being present at the trial, it must be shown that he was injured by such absence. His afii- ' davit to the effect “ that he had a good defense to the suit, and that he would have testified that the account of the plaintiff had no valid existence in fact or law for which he was responsible,” being merely a conclusion of his own, is insufficient.</p>

<p>Banks. Stockholders. Judgments. Execution. Before Judge Underwood. Floyd Superior Court. January Term, 1874.</p> <p>This case is fully reported in the above head-note.</p>

<p>New trial. Practice in the Superior Court. Scaling ordinance. Relief Act of 1868. Before Judge Rice. Gwinnett Superior Court. March Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Administrators and executors. Trusts. Wills. Injunction. Before Judge Gibson. Richmond county. At chambers. April 28th, 1874.</p> <p>Kate B. Kerr and John L. Kerr, minors, by their legal guardian under the laws of Tennessee, and by their next friend in Georgia, filed their bill against Frank M. White, as executor of the will of John Kerr, deceased, and Thomas W. White, as trustee for complainants, alleging, in substance, ■the following facts:</p> <p>John Kerr died in Memphis, Tennessee, in September, 1870, leaving a will, the fifth item of which was as follows:</p> <p>“I.give and bequeath to Thomas W. White all the rest and residue of my property, both real and personal, including houses and lots, lands, bonds, notes and stocks of every kind and description, in Georgia, Tennessee and Mississippi, or elsewhere, in trust, for the benefit of my three grand-children, John- L. Kerr, Kate B. Kerr, and Julia Willie Kerr, with full power and authority to sell any portion of the same and reinvest- in such other property as he may think best; to expend such amounts as may be necessary to educate them well, and on the coming of age or marrying of my grand-son, to pay him over and deliver ,to him one-third of the same; and on the marriage or coming of age of the girls, to deliver one-half of their interest to them, and to settle on them for life, with remainder to their heirs, in strict settlement, the other half; but should either of them die before coming of age or marrying, his or her share to go equally to the other two* with the same limitations as to the girls.”</p> <p>Julia Willie Kerr has since died.</p> <p>At his death, testator possessed, in Georgia, two valuable lots in Augusta, at the southwest corner of Jackson and Broad streets, thirty-eight shares of stock in the Atlanta and West Point Railroad Company, and an interest in sixty shares of stock in the Georgia Railroad and Banking Company, standing in the name of Kerrs & Hope, a firm of which John Kerr had been a member with Andrew Kerr and James Hope, of whom James Hope is the survivor, and is now a resident of Augusta, Georgia. Frank M. White has collected the income from the property in Georgia, except the dividends on the Georgia Railroad stock, which have been collected by James Hope since the death of John Kerr.</p> <p>The following proceedings were had in Tennessee: A bill was filed early in 1872 to compel Thomas W. White to pay educational bills, and to give bond for his trust. During the fall of 1872 a decision was rendered requiring him to give bond for property in Tennessee, and not to give bond for property out of that state. Both parties appealed, and it is now in the supreme court of Tennessee. A bill was also filed to compel the trustee to pay past educational bills, and allow annually a sum for maintenance, support and education, of the infants, and to pay bills due for past maintenance of complainants. In July, 1873, an order was passed, pendente lite, for support and maintenance, but not for education; and a final decision for annual allowance for support and education was rendered March 27th, 1874, amounting to $3,000 00, with direction to pay back bills due for past maintenance. In January, 1874, a bill for injunction was filed in the probate court to restrain White from acting as trustee until he gave, bond for his trust, and for his removal if he failed to give bond; also, for a receiver. Injunction was issued and served in January, 1874, upon Thomas W. White and Frank M. White. The demurrer of defendant, Thomas W. White, to the jurisdiction of the court had not been argued up to the hearing in this case.</p> <p>The following proceedings were had in Tunica county, Mississippi: In the chancery court, having probate jurisdiction, an order was passed, in 1871, for maintenance and support, to be furnished out of the Tunica estate (not the trust' estate) of the minors, inherited from their father. An order, in 1872 or 1873, was passed increasing the allowance. In the fall of 1873, Mrs. Julia G. Coffee, mother of infants, was appointed guardian vice Dr. Nelson, resigned. • In the fall of 1873, an order was passed discontinuing the allowance from Tunica court, because the estate was out of repair, and there being no net income from it. The full sum allowed by that court for maintenance and support of infants was not received in any year; and in April, 1873, the amount received under such order had fallen short, from year to year, to about eighteen hundred or two thousand dollars. The bill against White, trustee,, for maintenance and support, -was not filed until, long after the infants had failed to receive anything from their Tunica allowance, and was only brought because White, trustee, refused to make any such allowance out of the trust estate, denying his authority to do so, notwithstanding the allowance failing from Tunica court, of which he (White) had knowledge.</p> <p>The following proceedings were had in Georgia: A petition for administration, with the will annexed, was filed in Georgia January 22d, 1874, to which objections were filed by Thomas W. White; trustee, and Frank M. White, executor, and .the same are on appeal, undetermined, in Richmond superior court. On the 16th February, 1874, Frank M. White delivered to Thomas W. White, trustee, in Tennessee, a deed of transfer of the real estate in Georgia, but made no reference to the Georgia or Atlanta and West Point Railroad stock. This was done after he had notice of an application plication for administration in Georgia.</p> <p>All the debts in Tennessee have been paid except one claim of about $3,000 00. No settlement has been had with James Hope, who retains control of the Georgia Railroad stock, and claims a large indebtedness as due him by testator on a settlement of the partnership affairs. The defendant, Thomas W. White, trustee, is now attempting to sell the real estate located in Georgia. He also fails to maintain and educate complainants. They pray that the said Frank M. White, executor, be enjoined from paying or delivering to the said Thomas M. White, trustee, any portion of the balance of their estate in Georgia until the further order of the court, and that said trustee be restrained from receiving the same.</p> <p>That the said Thomas W. White be enjoined from acting further in the capacity of trustee, or from receiving any of the income of the property now in his hands, or from disposing of any portion thereof, but that a receiver may be appointed to take charge of said property, and to collect its income until the further order of the court; that if it be held that said White is entitled to act as trustee, that such receiver be nevertheless appointed to act until he give a proper bond for the protection of the trust estate.</p> <p>That upon a final hearing the said White may be enjoined from acting further as trustee. If not, that he may be decreed to execute the trusts covered by the will by paying the tuition bills and expenses of the education of the complainants already accrued, or which may hereafter accrue. That he be required to give bond, etc.</p> <p>Thomas W. White answered, denying the jurisdiction of the court of Tennessee over him, or its authority to require security, asserting his right to control the property in Georgia under the authority of the will; denying the necessity for administration, and alleging proper provision for the minors.</p> <p>Numerous affidavits were read upon the hearing of the motion for injunction and the appointment of a receiver, all unnecessary here.</p> <p>The injunction was refused and a temporary receiver appointed to act until the supreme court could pass upon the questions involved. To this judgment the complainants excepted.</p>

<p>Where the state court has acquired jurisdiction of a creditors’ hill, and has the assets of the debtor within its custody, in the hands of a receiver, and said debtor is subsequently adjudged to be a bankrupt., it will not order said assets turned over to the trustees appointed by the United States court under the provisions of the bankrupt act, upon their mere petition. When the United States court shall enjoin the complainants in the creditors’ bill from proceeding in the state court to have their claims adjudicated, then it would be the duty of the latter court to turn over to the trustees the assets in its custody, to be administered by the bankrupt court.</p>

Mechanic's lien. .Title. Before Judge Hill. Washington Superior Court. September Term, 1873. The Central Railroad and Banking Company employed one Thomas J. Jenkins to make brick for it in its yard and with its machinery, at $7 00 per thousand for all he could make to the amount of two hundred thousand. The brick were to be of a certain quality, and were to be inspected by an agent of the road before acceptance.

Injunction. Debtor and creditor. Judgment. Fraudulent conveyance. Attachments. Bill of exceptions. Practice in the Supreme Court. Before Judge Clark. Sumter county. At chambers. September 9th, 1874.

<p>1. If one accept a draft, having no funds of the drawer, and the payee indorse the draft before acceptance, with the distinct understanding with the acceptor that the acceptance is on the faith of the indorsement, and the acceptor have the bill to pay, he may recover of the drawer and indorser as principal and security, for money paid out and expended, and under our law they are joint promissors, and may be sued in the county of the drawer, though the indorser lives in a differ- ■ ent county.</p> <p>2. Where A drew a draft in favor of B on C, factor and commission merchant, undertaking, in the draft, to deliver to the factor his cotton crop in time to be sold, so that the proceeds might be applied to the draft at its maturity, and the payee, to induce the factor to accept, indorsed the draft, with intent to hold the factor harmless, and A delivered his crop accordingly, but the factor permitted him to sell thirteen of the bales for other purposes, and applied the balance to th.e payment of debts due by A to him of a previous date to the indorsed draft, which debts were evidenced by acceptances by the factor of other and previous drafts of the same character by A on the factor, and which the factor had accepted and paid, and which exceeded in amount the value of all the cotton of A :</p> <p>Held, that the draft drawn in favor of B, and indorsed by him, was an appropriation of the proceeds of the cotton afterwards delivered to the payment of the same, and the indorser, B, would only be liable as surety to C, if he or his agent had notice that the previous drafts of A, accepted by C, had in them the like appropriation, and it was error in the court to charge the jury that it made no difference whether B or his agent had such notice or not.</p>

<p>(Trippe, J., having been of counsel, did not preside in this ease.)</p> <p>1. When one has parted with his title to property, his declarations made subsequently thereto are inadmissible to defeat or disparage such' title.</p> <p>2. Where one of the parties to the contract or cause oí action, in issue or on trial, answered interrogatories before her death, and such deposition is introduced in evidence, the opposite party is a competent witness.</p>

Judgments. Husband aud wife. Divorce. Attachment. Judicial sale. Before Judge Rice. Jackson Superior Court. August Term, 1873. On the 8th day of August, 1871, Delila M. Venable commenced her action of ejectment against R. T. Carithers, who pleaded the general issue.

<p>Factors’ lien. Bond. Before Judge Hill. Twiggs Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Criminal law. Evidence. Charge of court. Witness. Accomplice. New trial: Before Judge Kiddoo. Quitman Superior Court. November Adjourned Term, 1873. These two cases were argued and determined together. Robert E. Hammaek and John Hammaek were placed on trial for the offense of arson, alleged to have been committed upon the property of Nancy Thomas, on November 15th, 1873. The former was charged with burning a corn-crib, and the latter a cotton-house.

<p>1. The third section of the act of 1866, authorizing the ordinaries to levy an extra tax sufficient to pay all just and equitable debts contracted for the prevention of the spread of small-pox, is a law of force in this state, although the same is not incorporated in the Code.</p> <p>2. The ordinaries have no legal authority to levy an extra tax for educa, tional purposes without the recommendation of the grand juries of their respective counties. Whether with such recommendation, quaere ?</p>

Wills. Election. Homestead. Before Judge Hall. Jasper Superior Court. August Adjourned Term, 1873. A report of the facts of this case is unnecessary to an understanding of the principle embraced in the opinion.

<p>Promissory notes. Slaves. New trial. Before Judge Steozer. Worth Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Railroads. Constitutional law. Venue. Husband and wife. Damages. Evidence. Witness. Before Judge Bartlett. Greene Superior Court. September Term, 1873. Fannie V. Oaks brought ease against the Georgia Railroad and Banking Company, a body corporate located in the county of Richmond, claiining $20,000 00 damages for the homicide of her husband.

<p>Receivers. Possessory warrant. Before Judge McCutchen. Bartow county. At’chambers. November 10th, 1873.</p> <p>For the facts of this case, see the decision.</p>

Insurance. Contracts. Evidence. Custom. New trial. Immaterial error. Before C. B. Wooten, Esq., Judge pro hac vice. Bibb Superior Court. October Adjourned Term, 1873.

<p>Estates. Trusts. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Building and loan associations. Fine. Penalty. Damages. Collateral security. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1873. On September 17th, 1867, Thomson borrowed from the Ocmulgee Building and Loan Association, on thirty shares of stock, $6,000 00, at a premium of sixty-five and one-half per cent., upon which he received, in cash, $2,080 00.

<p>Where a declaration alleged that the defendant, a municipal corporation, cut a ditch along, and close to, the east line of his residence lot, and left it in such condition that the water coming, or falling, into the same could not run off in any direction; that thereby water accumulated and became stagnant in said ditch, thus generating malaria, causing sickness in the family of the plaintiff, and by the unwholesome stench produced in the atmosphere, rendering his premises unfit for occupation, to his damage §1,000 00:</p> <p>Held, that a prima facie case of special damage from the nuisance was presented, and it was error to sustain a demurrer thereto.</p>

Administrators and executors. Evidence. Stamps. Constitutional law. Exemplification. Demand. Practice in the Superior Court. New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.

<p>Evidence. Before Judge Underwood. Cobb Superior Court. November Adjourned Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Service. Sheriff. Estoppel. Before Judge Gibson. 'Warren Superior Court. April Term, 1874. An execution issued in favor of C. F. Johnson et al., executors, against W. R. D. Johnson, for $341 30 principal debt, with interest from August 16th, 1870. On November 1st, 1873, it was levied upon certain lands as the property of the defendant. On the 20th of the same month lie filed an affidavit of illegality, upon the ground that he neither had been served nor waived service.

<p>The power vested in a trustee to sell the trust property and reinvest or otherwise dispose of the proceeds in any manner for the use and benefit of the cestui que trust, does not include the authority to settle various actions of ejectment pending against said trustee by agreeing to allow verdicts to be taken for I lie plaintiffs in some of the cases, and for the defendants in the others.</p>

New trial. Before Judge Hall. Newton Superior Court. September Term, 1873. This case is fully reported in 47 Georgia Reports, 24. As it turns exclusively upon the evidence it is thought unnecessary to add anything here.

<p>Injunction. Execution. United States Court. Multiplicity of suits. Before Judge Knight. Lumpkin .county. At chambers. May, 1874.</p> <p>For the facts of this case, see the decision.</p>

Insurance. Distribution. Administrators and executors. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874. Rawson & Company brought complaint against James S. Jones, as administrator upon the estate of Robert C. Jones, deceased, for $782 16, besides interest, alleged to be due on a judgment against said defendant. The defendant pleaded no assets and plena administravit prater.

Husband and wife. Laws. Railroads. Contracts. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.

Husband and wife. Torts. Railroads. Before Judge Hopkins. Fulton Superior Court. October Term, 1873. Charity A. Hendricks brought case against the Western and Atlantic Railroad Company for $10,000 00 damages, sustained by her on account of the homicide of her husband, John C. Hendricks, by said defendant, through its negligence.

<p>Equity. Judgments. Before Judge Knight. Lumpkin Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Money was raised by sheriff's sale under attachments, and in June, 1872, was, by order of court, deposited with John King, banker, upon condition that said King hold the same subject to the order of the court, and that he pay interest upon the same at the rate of seven per cent, as long as said money is in his hands. In May, 1873, King becoming insolvent, made an assignment for the benefit of his creditors, of all his property, including an amount of money greater than the sum so deposited with him ; all of which was taken in possession by the assignees. In May, 1874, a receiver was appointed for the fund so raised by the sheriff and deposited with King. At the same term of his appointment the receiver brought a rule requiring the assignees of King to pay the amount so deposited with the said King into court, for the purpose of distribution among the claimants of said fund :</p> <p>Held, that the court committed no error in refusing the rule.</p>

Garnishment. Before Judge Schley. Bryan Superior Court. April Term, 1874. It is unnecessary to an understanding of this decision to add to the facts embraced in the above head-note.

Promissory Notes. Indorser. Protest. Before Judge Gould. City Court of Augusta. February Term, 1874. Emeline T. McNatt brought complaint against William C. Jones, as maker, and William H. Jones, as indorser, on a note for $300 00, dated March 5th, 1873, payable ten days after the date thereof at the National Bank of Augusta. The indorser was served by leaving a copy at his residence. When the case was called for trial, no plea had been filed.

<p>Where a bill is filed by complainants against the administrator of their father to recover the interests of their two brothers, who are alleged to have died “ in minority,” in his estate, and there is no charge as to the ages of the deceased brothers at the time of their respective deaths, nor any reason set forth why administration was not had on their estates, a demurrer thereto was properly sustained.</p>

. Wills. Administrators and executors. -Before Judge Underwood. Walker Superior Court. February Term, 1874. The question made in this case is sufficiently presented by the above head-note.

Criminal law. Practice in the Superior Court. Jury, Before Judge Bartlett. Chatham Superior Court. May Term, 1874. Tilton was placed on trial for the offense of an assault and battery. He pleaded not guilty. The jury found to the contrary. After the verdict had been read, but before it had been recorded, in the presence of the jury, the defendant moved that they be polled. The' motion was overruled upon the ground that it came too late.

Deed. Mortgage. Debtor and creditor. Contracts. Alteration. New trial. Before Judge Hall. Pike Superior Court. October Term, 1873.

<p>Pleading. Contracts. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Will. Executor and administrator. Collateral security. Evidence. Practice in the Supreme Court. Damages. Before Judge' Gould. City Court of Augusta. November Term, 1873.</p> <p>James G. Bailie, as executor of Harper C. Bryson, deceased, brought trover against Thomas J. Kinchley and John T. Shewmake, for certain notes hereinafter mentioned. The defendants pleaded the general issue.</p> <p>The facts of the case were as follows: On 3d June, 1872, James G. Bailie and William Bryson, the latter a son of testator, qualified as executors on the estate of Harper C. Bryson, whose will contained the following clause:</p> <p>“I direct all my just debts to be paid, and to enable this to be done, as well as for the purpose of managing and distributing my estate, my executor’s hereinafter to be named, or the survivor, or the one that may qualify, are authorized to sell, convey, exchange, or otherwise dispose of, any portion or all of my estate.”</p> <p>Among the assets of the estate was a note (secured by mortgage) made by Joseph Moffatt, trustee, for $740 96, dated 4th September, 1871, and due 1st January, 1872, payable to H. C. Bryson or bearer, and a note made by said Moffatt, trustee, and Belia Moffatt, for $100 00, dated 4th September, 1871, and due at four months, payable to order of H.U. Bryson. After the maturity of these notes, to-wit: on or about the 29th November, 1872, these notes and the mortgage were turned over to Kinchley by William Bryson without,any written transfer, .as collateral security for the loan of $1,000. The capacity in which said loan and transfer, was made is in dispute, and the evidence thereon conflicting, plaintiff contending that William Bryson, in such transaction, acted as an individual, and defendants contending that he acted as executor. William Bryson testified that he borrowed the sum of $1,000 00 from Kinchley in his individual capacity and not as executor; that the money obtained from Kinchley was not intended to be used for the benefit of the estate,-and, in point of fact, was not so used, but was applied to his individual use; that witness was a member of the firms of O. A. Withers & Company, Savannah, Georgia, and of C. Campbell & Company, Augusta, Georgia, and that his main business at time of the loan was buying and selling cotton on account of said firms, and that the loan in question was procured by him as an individual and not as executor, and that he did not tell Kinchley the money was to be used for the estate, and, in point of fact it was not so used. That Harper C. Bryson was a cotton fac-</p> <p>tor for many years, and his estate consisted in part of accounts due as cotton factor; that he does not think the check is in his handwriting, but thinks the note is; that he is not sure his note to Kinchley was given the same day the money was obtained or afterwards.</p> <p>The following written evidence was introduced, to-wit: a note sent by William Bryson to said Kinchley, prior to the loan: “Enclosed I send you a cheek filled up for the amount which you can sign, if you will let me have the loan of the amount I ask for. You need have no fear of not getting the money when you want it. It will oblige me very much.</p> <p>“W. B.”</p> <p>The check referred to is in the following words:</p> <p>“Augusta, Georgia, 29th November, 1872.</p> <p>“Merchants’ and Planters’ National Bank, pay to check one thousand dollars ($1,000 00.) Thos.. J. Kinchley.”</p> <p>And the following note:</p> <p>“Augusta, Georgia, 29th November, 1872.</p> <p>“ $1,000 00. Thirty days after date I promise to pay Thos. J. Kinchley, or bearer, one thousand dollars, value received.</p> <p>“ Wm. Bryson.”</p> <p>Letters testamentary granted to James G. Bailie and William Bryson 3d of June, 1872, by the ordinary of Richmond county.</p> <p>Order of the ordinary of Richmond county, vesting the sole management of the estate in James G. Bailie, dated 9th April, 1873.</p> <p>Clause of the will above quoted.</p> <p>Petition of Caroline A. Bryson, a legatee, to have the executors of Harper C. Bryson removed, was introduced by defendant over the objection of plaintiff.</p> <p>John T. Shewmake testified that he held the notes and mortgage in question at the time suit ivas commenced and at the present time, as attorney for Thomas J. Kinchley, and that a proper demand had been made by plaintiff upon him for them before the commencement of this suit, and that he, as such attorney, and for himself, had refused to give them up.</p> <p>Defendants introduced Thomas J. Kinchley, who testified as follows: William Bryson sent several times to him to borrow money, which he refused to loan; Bryson then came himself, and said he needed $1,000 00 to settle or collect a claim or account of the old man, meaning Harper C. Bryson; an old customer owed an account and wanted a further advance, and Bryson could collect all if he could advance and take the man’s cotton ; Bryson offered the cotton as security ; he then left and a little negro boy brought witness the note enclosing the check; witness signed the check; on getting the check back from the bank he saw no name on it but his own ; he then went to Bryson and said, he (witness) had no writing to show Bryson had got the money, and Bryson gave him his note as such writing; witness told Bryson to take back theMoffatt notes and mortgage and pay him his money; Bryson said to hold on to those securities, he would soon pay; this was a day or so after witness signed the check; the Moffatt notes were sent to witness by Bryson within less than an hour after witness signed the check; witness would not have loaned Bryson the $1,000 00 as an individual, or on his note.</p> <p>A. E. Austin testified as follows: He was a clerk with William Bryson for several months prior to December 6, 1872, at which time he ceased to be in his employ; his business was-to keep his books; William Bryson’s business was settling up the estate of H. C. Bryson, and doing some cotton business 'himself; Mr. Bryson handed him $1,000 00, and told hi into credit Dr. .Kinchley with it; part of the money was used that day in the ordinary course of business ; remembers Dr. ■Kinchley’s asking for his money, and William Bryson telling him to hold on to the papers, meaning the Moffat notes.</p> <p>Joseph Austin testified that he succeeded A. F. Austin as clerk; that Mr. Bryson told him his business was winding up the estate of H. C. Bryson; that William Bryson did some cotton business of his own, but not much; that the bulk of the business was with old customers.</p> <p>The jury found for the defendants. The plaintiff moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the court committed error in charging that William Bryson, as executor, had power, under the terms of the will of Harper C. Bryson, to dispose of the assets of said estate at private sale, or to borrow money for the use of said estate, as testified to by the defendant, and pledge the notes and mortgage for which suit was brought as security for the payment of such borrowed money.</p> <p>2d. Because the court committed error in charging that if Thomas J. Kinchley acted in good faith in loaning the money to William Bryson, it made no difference whether or not the latter acted in good faith; thus making no discrimination between the representative and individual capacity of said William Bryson, whereby the jury were led to believe that if Kinchley, in good faith, loaned the money to William Bryson as an individual, and not as an executor, still Kinchley could retain the assets of said estate placed in his hands, as collateral security for such loan to William Bryson individually.</p> <p>3d. Because, over objection of plaintiff’s counsel, the court admitted in evidence a petition filed by Caroline A. Bryson in the court of ordinary, to have the executors of Harper C. Bryson removed, the same being irrelevant to the point in issue, and calculated to cloud the minds of the jury.'</p> <p>4th. Because the jury. returned a verdict decidedly and strongly against the weight of the evidence, the testimony of William Bryson being supported by written evidence as well as the surrounding circumstances, and being rebutted alone by the testimony of Kinchley,- a party in interest, as to the capacity in which the loan was made.</p> <p>The motion was overruled, and plaintiff excepted.</p> <p>When the case was called in the supreme court, counsel for Kinchley moved that ten per cent, damages on $840 96, the aggregate principal of the-notes in controversy, be awarded him, on the' ground that the writ of error was sued out for delay only. The court disposes of this motion in the fourth head-note.</p>

Garnishment. Claim. Debtor 'and creditor. Before Judge Gibson. Chatham Superior Court. February Term, 1874. F. J. Spain, as administrator upon the estate of J. W. Spain, deceased, held a judgment against one Adam Dutenhofer. Garnishment process was issued thereon, and was served on Wallace Cumming- Upon the call of the claim case, plaintiff moved for a judgment on the claim bond, there being no traverse of the answer of the garnishee.

Administrators and executors. Amendment. Husband and wife. Infant. Before J udge Kiddoo. Decatur Superior Court. May Term, 1874. Ephraim PI. Poole brought complaint against Ella S. Hines on a note dated March 30th, 1867, due at six months, payable to Hodgkiss, Scott & Company, or order, for $2,496 89, with the indorsement'of the payees and divers credits thereon. The note was signed thus: “ Ella S. Hines, adm’x on est.

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

Bond for titles. Vendor and purchaser. Damages. Before Augustus Reese, Esq., Judge pro hac vice. Jasper Superior Court. August Term, 1873. Smith brought complaint against Bacon on the following note: “$750 00.

Criminal law. New trial. Newly discovered evidence. Before Judge Schley. Chatham Superior Court. November Special Term, 1873. The plaintiff in error was indicted for assault with intent to murder. The following is a condensed statement of the material points of the evidence : FOR THE STATE. Cornelius Donovan sworn: I have charge of the hands at the cotton press. My business is to see that they work ; it is customary for them to report to me after having been absent; Ben.

Banks. Deposits. Charge of Court. Scaling ordinance. Confederate money. New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1873.

<p>Where an affidavit of illegality alleged that the defendants never Bad any notice of the pendency of the suit upon which the judgment was found- ■ ed until execution issued against them, a demurrer thereto should' have been overruled.</p>

Constitutional law. Pleading. Before Judge Gibson. Richmond Superior Court. April Term, 1873. Branch brought complaint against the Mechanics’ Bank for $95,641 00, and twenty-five per cent, damages, besides interest, on certain of. its bills, all dated and alleged to have been issued prior to the year 1861.

Criminal law. Witness. Accomplice. Before Judge Schley. Chatham Superior Court. November Special Term, 1873. Jack Middleton and William Seabrook were placed on trial for the murder of John Houston. The evidence disclosed the following facts: The body of deceased was found in the Savannah river with the appearance of having been in the water several days. There was a wound upon the head which was sufficient to produce death.

Will. Evidence. Deed. Equity. Discovery. Charge of Court. New trial. Before Judge Underwood. Chattooga Superior Court. March Term, 1874. Persons Bass filed his bill against James A. Bass, as administrator upon the estate of Joseph L. Bass, deceased, making the following case: Prior to January 11th, 1867, complainant and wife were aged and infirm, and incapable of supporting themselves.

<p>Where complaint for land in the statutory form is brought, the plaintiff must, by the abstract attached to his declaration and by his evidence, show title in himself.</p>

<p>1. The proprietor of a toll-bridge is bound by law to keep the same in a safe condition, and to make all needful repairs, and he has a right to-take up any portion of the bridge which it may be necessary to displace for the purpose of making such repairs.</p> <p>2. While such repairs are being made, and a large portion of the flooring of the bridge is taken off, and the timbers sustaining the floor are removed from their usual place, so as to be plainly seen by all persons, and the collection of toll is discontinued, the relation of the owner Ur the public as proprietor of a toll-bridge is suspended, and he is not liable to a passenger who attempts to cross the bridge on foot on planks temporarily laid down several feet apart, for the use of the workmen, and who is injured by falling between the planks thus placed, or through an opening caused by the removal of the timbers.</p> <p>3. For the purpose of proving that toll was charged while the bridge was in that condition, it is not competent for a witness to state that he has an account showing a charge against him for toll of the same date the accident occurred.</p> <p>4. When a party to an action intends to be a witness for himself, and the court directs that his witnesses be separately examined, it is the proper rule, unless there be special reasons to the contrary, that such party should first be examined in the absence of his other witnesses, in order that he may thereby be present, as is his right, during the whole trial of his case.</p>

Practice in the Superior Court. Verdict. Pleadings. Set-off. New trial. Before Judge Bartlett. Greene Superior Court. March Term, 1874. The two cases above stated were tried together in the superior court. In the first, the jury found a verdict “for the plaintiff.” The court instructed them to return to their room .and to find a definite sum. The foreman stated that they intended to find the amount claimed, to-wit: $58 79.

Bankrupt. Judgment. Attorneys. Evidence. Before Judge Hall. Spalding Superior Court. February Term, 1874. Phillips held an execution against Edward G. Foster for $3,189 25 principal, $792 83 interest, and $13 75 costs, based on a judgment rendered in Spalding superior court on May 18th, 1864. This judgment was had upon appeal from a verdict obtained in 1862 in favor of plaintiff.

<p>Pleadings. Bond. Award. Evidence. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873.</p> <p>Dortch brought debt against Cobb & Duncan, as principals, and James M. Leonard, as security, on a bond dated October 26th, 1871, in the sum of $2,000 00, conditioned as follows:</p> <p>“The condition of this bond is such, that whereas differenees have arisen between said Cobb & Duncan of the one part, and Walter Dortch of the other part, in regard to mill •damages set forth in an agreement heretofore signed by the parties above named, and bearing even date with this instrument, and having agreed to Submit the same to A. W. Redding, Thomas J. Watt, and S. J. Jeukings, as umpire, if needed. Now, if the said Cobb & Duncan shall, on their part, do and perform the award which the said arbitrators may make under their hands and seals, within thirty days after the date of the award, then this bond to be void*, else of full force and effect.”</p> <p>The plaintiff assigned the breach of'said condition thus: 4e That the said Cobb & Duncan did not, on their part, do and perform the award which the said arbitrators did make under their hands and seals, within thirty days from the date of the award, or at any other time, but the same to do have wholly failed, because plaintiff avers that said arbitrators, to-wit: A. W. Redding, Thomas J. Watt and S. J. Jenkins, on October 26th, 1871, under their hands and seals, did award and decide as follows :</p> <p>“ Walter Dortch vs. Duncan & Cobb.</p> <p>“The referees, chosen to arbitrate the matters in dispute between said parties have made the following award: That the claimant, Walter Dortch, is entitled to $400 00, with the present height of the dam, but if the said Dortch -will agree to the raising of the dam eighteen inches, then the said Duncan & Cobb shall pay the said Dortch $600 00.</p> <p>“ And plaintiff alleges that said Duncan & Cobb did not choose to raise said dam, and that said Duncan & Cobb have failed and refused to pay your petitioner said sum of $400 00 within thirty days from the making of said award, or any part thereof, and wholly refuse to pay the same,” etc. •</p> <p>The defendants demurred to the declaration upon the ground that no sufficient breach was alleged. The demurrer was.overruled, and defendants excepted.</p> <p>For the remaining facts, see the decision.</p>

<p>Judgments. Principal and security. Before Judge Rice. Franklin Superior Court. April Term, 1874.</p> <p>This case is reported in the above head-note.</p>

<p>Corporations. Eailroads. Liens. Mortgage. ' Trusts. Before Judge Schley. Glynn county. At chambers. December 15th, 1873.</p> <p>Reported in the opinion.</p>

Garnishment. Evidence. Before Judge Pottle. Hancock Superior Court. April Term, 1874. These two cases were argued and determined together by the court below, without the intervention of a jury. The evidence submitted was voluminous, but the following brief report is sufficient for an understanding of the decision : Suits were instituted against one Drafton S. Haynes, in Bartow superior court, at the instance of James W. Moore et al., and of Henry H. Culver.

<p>1. Counts for an assault with intent to murder by shooting at another with a pistol, and for shooting at another with a pistol, may be joined in the same indictment.</p> <p>2. Evidence not offered upon the trial cannot be considered on a motion for a new trial.</p> <p>3. Where there are two counts in an indictment., and a general verdict of guilty is returned, the legal intendment is that reference is had to the highest grade of offense charged.</p> <p>4. The verdict is sustained by the evidence.</p>

Partnership. Landlord and tenant. Levy and sale. Charge of Court. Before Judge James Johnson. Muscogee Superior Court-. May Term, 1874. J. A. Holifield & Company sued out an attachment-against, James F. A. Boyal for $500' 20, besides interest, and had (he-same levied upon a one half interest in thirty-eight bales of cotton. A claim was interposed by James F. White. Pending the litigation the claimant died, and his executrix, Louisa. A. White, was made a party in his stead.

Contracts. Evidence. Guaranty. Waiver. Before Judge Rice. Gwinnett Superior Court. September Adjourned. Term, 1873. This case is fully reported in the first head-note. The bill therein referred to was dismissed, on motion,- for want of equity, and complainant excepted.

Criminal law. New trial. Before Judge Strozer. Dougherty Superior Court. April Term, 1874. 'Walters was placed on trial for the offense of vagrancy. He pleaded not guilty. The evidence for the state showed that the defendant had been “loafing about” three or four months in idleness; that he had never been seen to work, and had been accused of stealing, etc.; looked like he was able to work.

<p>1. Where an action of complaint on open account was instituted, it was competent for the plaintiff to amend by adding a count alleging that the defendant was indebted to him for money paid to said defendant under a parol contract for the purchase of certain property, from the possession of which he had been ejected under paramount title ; that the contract was consequently rescinded, and therefore he was entitled to recover the amount paid as aforesaid.</p> <p>2. To have entitled the plaintiff to recover money paid to the defendant under a parol contract of purchase, on the ground that he had the right to treat the contract as rescinded, it was incumbent upon him to have shown at the trial either that he had been actually ejected from the possession of the property by a title paramount to that of the defendant, or such paramount title as in judgment of law would have amounted to an eviction.</p>

Criminal law. New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1873. This case turns exclusively upon the testimony. To make any report beyond what is contained in the above head-note would illustrate' no principal of law.

New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1873. John Elder was indicted for the offense of perjury, alleged to have been committed in May, 1872, upon the trial of Frank IT. Hall for an assault with intent to commit murder. He pleaded not guilty.

New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1873. Hagni was placed on trial for the offense of taking and carrying away, with intent to steal the same, “ one pale, yellow, muly-headod cow, of the value of $30 00, of the personal goods and chattels of Edward Beehtoldt.” The defendant pleaded not guilty. The jury found to the contrary. Amotion was made for a new trial because the verdict ivas contrary to the evidence.

<p>Executions. Evidence. Judgments. Practice in the Superior Court. Before J udge Clark. Sumter Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

New trial. ^ Criminal law. Before Judge Hopkins. Fulton Superior Court. October Term, 1873. This case turns purely upon the weight attached by the jury to the evidence introduced. To set forth the testimony would illustrate no principle of law.

Mortgage. Practice in the Superior Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1873. DeGive instituted proceedings against Lewis to foreclose a mortgage on certain real estate in the city of Atlanta, exe-. cuted to secure the payment-of a promissory note dated September 23d, 1862, payable one year after the ratification of a treaty of peace between the United States and the Confederate States of America, for $3,400 00.

<p>(Teippe, Judge, was providentially prevented from presiding in this ease.)</p> <p>Where a claimant showed by an exemplification of the record of the suit in which the judgment was obtained upon which the execution was based, that the defendant therein had not been served, it was not error in the court to refuse a continuance upon the application of the plaintiff in execution to allow him to show to the contrary. The only tribunal in which such evidence could benefit him would be the court rendering the judgment, where the record could alone be perfected.</p>

<p>Where a levy was made upon personal property, and before the sale the property was, by agreement between the plaintiff and defendant, placed in the hands of a third person to be sold at private sale, and before • the sale the defendant becomes a bankrupt, and the property is taken by the assignee and sold :</p> <p>Held, that this is such a disposition of the levy, as authorizes the plaintiff in fi. fa. who does not prove his debt in bankruptcy, to levy bis execution upon real estate upon which it is a lien, in the hands of a . purchaser from the bankrupt before the bankruptcy.</p>

<p>Mortgage. .Registry. Notice. Before Judge IIiddoo. Terrell Superior Court. November Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Guardian and ward. Judgments. Lunatic. Confederate money. New trial. Before Judge Buchanan. Floyd Superior Court. January Term, 1874.

<p>Bankrupt. Mortgage. Before Judge Harris. Dooly Superior Court. March Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Criminal law. Charge of Court. Manslaughter. New trial. Before Judge Pottle. Richmond Superior Court. October Adjourned Term, 1873.</p> <p>Isaac Hooper was placed on trial for the murder of Howard Satterwhite, and found guilty. He moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the court erred in charging the jury as follows: “ In the opinion of the court this case rests upon the law of murder, voluntary manslaughter, or of justifiable homicide. I have given you in charge all the grades of manslaughter, and but for the position of defendant’s counsel, would not give-you the law of involuntary manslaughter, notwithstanding this opinion, if you find from the testimony that the defendant unlawfully killed the deceased, without any intention to-do so, you may find involuntary manslaughter, either in the commission of a lawful act or of an unlawful act.”</p> <p>2d. Because the verdict was contrary to the law and the- . evidence.</p> <p>g(j * * * * * *</p> <p>4th. Because the court erred in the following charge: “ What I have read you from the Code defining the different grades of crimes, you are to take from the court as law; what the opinion of the court may be in its applicatian to the case, you may receive or reject according to your conscientious convictions. It is presumed that the court is familiar with the law, and you ought to pay deference to those opinions, and not contemptuously disregard them. You have the right to do so if you honestly differ from the court.”</p> <p>KfU ********</p> <p>6th. Because the court, after charging in the language of the Code as to the justification of a battery by proof of opprobrious words, erred in charging as follows: “ If the prisoner used opprobrious words to the deceased, the latter had the right to threaten, or to commit a battery, in reply to those words, and those words may or may not amount to a justification according to the nature or extent of the battery, all of which must be determined by the jury.”</p> <p>7th. Because the court erred in the following charge: “ If the defendant approached the deceased in a threatening manner, using opprobrious words and armed with a- deadly weapon, and if the deceased knew, or had reason to believe that the prisoner had a deadly weapon, and was then and there acting under the fears of a reasonable man that a felony was intended on him by violence or surprise, the deceased had a right to strike the prisoner, and if he did strike or intended to strike, (and the amount of force used by him is immaterial) and the prisoner then struck the deceased, without any other provocation, and death ensued, it would be murder, and cannot be manslaughter if the prisoner had malice. While malice is inferred when a killing takes place, and murder is presumed, the presumption may be rebutted by proof produced by the state or the accused; the burden of proof to rebut this presumption is on the defendant.”</p> <p>8th. Because the court erred in the following charge: “If you believe from the evidence that the accused sought the difficulty with the deceased for the purpose of taking his life, and did any act other than using words, towards the deceased, with the purpose of inducing him to attack him, and if you believe, from the evidence, that the defendant sought for and induced a provocation from the deceased, the killing of the deceased would be murder.”</p> <p>It is only necessary to state in reference to the first ground of the motion for a new trial, that there was not a particle of testimony upon which a verdict for involuntary manslaughter could have been claimed.</p> <p>As to the second, that the evidence to support the verdict ■was abundant if the instructions of the court to the jury were ■correct.</p> <p>As to the remaining grounds, except the seventh, they are sufficiently clear in themselves.</p> <p>As to the seventh, it was insisted that there was no evidence to support the charge therein set forth. The facts presented by the testimony' upon this point of the case were, in brief, as follows:</p> <p>On the night of the homicide, Gardner’s baud, of which •deceased was a member, was out serenading. The defendant, who was a musician, though not a member of the organization, accompanied them. For some reason he entertained towards some of the band, and especially towards the leader, the most deadly hostility. He had stated on the evening of the •difficulty, exhibiting his knife, that there were three or four members whose throats he intended to cut, that he must have revenge. He had played with them on previous occasions, taking the place of some member who was absent. He seems to have joined them on this evening without any invitation. In the course of the serenading tour the defendant commenced cursing. The deceased told him that he ought to obey the leader. He then cursed deceased, who replied that if he was going to be cursing he would not have anything to do with him. He then said to deceased, “you are as damned a rascal .as some of the rest of the band, and I intend to get my satisfaction this night.” The deceased walked off. The defendant called him back to speak to him. What passed at this interview is only known from the dying declarations of the deceased ■and the surrounding circumstances. The deceased, immediately thereafter, was found lying on the ground mortally wounded by a knife or some such instrument. By him, was found the knife which the defendant had previously shown. The defendant was gone. The deceased stated that the defendant had killed him. On the next day the defendant was .arrested in South Carolina. He had two bruises on him.</p> <p>The motion was overruled, and the defendant excepted.</p>

<p>The defendant gave the plaintiff a note for an amount claimed by the latter to be due for board. This note was paid off. The plaintiff subsequently sued the defendant on an account, to which the general-issue alone was pleaded. The defendant claimed upon the trial that the mote was given for too much, and that he so stated to the plaintiff at the time of its execution, but nevertheless signed it “to keep down a fuss.” He claimed a credit for the excess:</p> <p>Held, that no matters in evidence anterior to the date of the note could be considered by the jury.</p>

Landlord and tenant. Assignment. Before Judge Pottle. Richmond Superior Court. October Adjourned Term, 1874. Robert C. Kerr, as trustee of Eliza R. Kerr, brought complaint against William T. Gould, as assignee of the Mechanics’ Bank, on an account for $480 00, for rent of room where the books and effects of the bank were stored from September 30th, 1869, to September 30th, 1873, at $120 00 per year. The defendant pleaded the general issue.

<p>1. Bonds issued by a municipal corporation having lawful authority to issue such instruments, are, in the hands of innocent purchasers, binding, notwithstanding irregularity or fraud in the manner in which they were placed upon the market.</p> <p>2. Power vested in a municipal corporation to make all contracts which it might deem necessary for the welfare of said city, includes the authority to issue bonds.</p> <p>3. Certificates of indebtedness issued by a municipal corporation, receivable in payment of public duties, are binding upon the city, notwithstanding the fact that such act was in violation of a penal law.</p> <p>4. Where bonds are issued by a municipal corporation to redeem a currency binding on the city, it was competent for the general assembly to ratify such issuance.</p> <p>5. Where the title of an act specifies some of the objects for which it was passed and contains the general expression, “ and for other purposes,” portions of the act not especially indicated in the title are nevertheless valid.</p> <p>6. Where the subject matter of legislation is the subscription to stock of railroad companies by a municipal corporation, the fact that an act and an amendment thereto, authorize the subscription by said corporation to the stock of two or more railroads, does not render them unconstitutional as referring to more than one subject matter.</p> <p>7. Authority to subscribe to stock of railroad companies necessarily implies that such municipal corporation should provide the means to pay therefor.</p> <p>8. Where it is submitted to the citizens under the provisions of the constitution of 1868, whether a municipal corporation shall subscribe to a ■work of public improvement, a majority of those voting being in favor thereof, will authorize such issue.</p>

<p>Claim. Mortgage. Sheriff. Possession. Before Judge-Gibson. Richmond Superior Court. April Term, 1873.</p> <p>Rival brought case against Gallagher for removing him and his goods, wares and merchandise, from a certain storeroom and. premises in the city of Augusta. The defendant, pleaded the general issue. The errors complained of will sufficiently appear from the motion for a new trial. The jury found for the defendant. ■ The plaintiff moved for a new trial upon the following grounds :</p> <p>1st. Because the court erred in refusing to charge the jury, as follows: “A sheriff has no authority to put a purchaser of real estate at a sheriff’s sale in possession, if to do so, it is necessary to turn out a purchaser from the defendant in execution whose title is anterior to the date of the judgment, even though it be true that for some reason the judgment was a lien anterior to its date, so that the purchaser gets a good title. If you believe from the evidence that the title of the plaintiff is anterior to the date of the judgment of foreclosure, the sheriff had no authority to put the purchaser in possession, if to do so, it was necessary to turn out the plaintiff, and if he did so under the instruction of the defendant, the latter is liable.”</p> <p>The court charged the first sentence of this request and refused the last.</p> <p>2d. Because the court erred in charging as follows : “If Rival was a lessee under Guerin who, before that time, had mortgaged the premises, he got only what Guerin had, and the sheriff had the right to turn him out. The date of the mortgage foreclosure relates back to the date of the mortgage, and i'f Rival held under a lease dated subsequently to the date of the mortgage, the sheriff had a right to turn him out.”</p> <p>The motion was overruled and plaintiff excepted.</p>

<p>R Where the question at issue was whether a sale by an insolvent was made to defraud creditors, the fact that rumors of his insolvency were prevalent after the date of such sale, was inadmissible.</p> <p>2. Where one ground of attack upon such sale was its secrecy, it was competent to prove by a witness who entered the vendor’s store on the day of the sale, the vendor and vendee both being present, that from the appearance of the goods and the parties, he thought some kind of sale was about to be consummated, and asked a clerk in reference to it, who smiled and replied that they were selling out, or had sold out, giving no very definite answer.</p> <p>3. It is error to charge upon a point in reference to which there is no testimony.</p> <p>4. The charge that if a witness swears wilfully and knowingly false, even to a collateral fact, his testimony ought to be rejected entirely, unless it be so corroborated by circumstances or other unimpeached evidence, as to be irresistible, in view of the evidence act of 1866, was error.</p> <p>5. An unusual degree of secrecy in a sale by an insolvent is a badge of fraud. Whether such secrecy existed is a question of fact for the jury.</p> <p>6. If a person buy from an insolvent, knowing that the sale was made for the purpose of defrauding his creditors, the transaction would be void. Aliter, in the absence of such knowledge.</p>

Ejectment. Prescription. Principal and agent. Charge of Court. Before Judge Underwood. ■ Whitfield Superior Court. October Term, 1873. Blackshear brought ejectment against Payne for a lot of land in Whitfield county. The defendant pleaded the general issue and title by prescription.

<p>Corporations. Insurance. New trial. Waiver. Evidence. Witness. Before C. B. Wooten, Esq., Judge pro hac vice. Bibb Superior Court. October Adjourned Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Debtor and creditor. Practice in the Superior Court. Before Judge Kiddoo. Chatham Superior Court. February Term, 1874. A. J. Miller & Company foreclosed a chattel mortgage held by them against one Samuel S. Miller. The execution was duly levied, but before a sale was had an injunction issued at the instance of George W. Berry & Company, creditors of the mortgagee. An attachment was also levied at their instance on the same property.

<p>Illegality. Service. Before Judge Clark. Schley Superior Court. May Term, 1874.</p> <p>At the August term, 1866, of Schley county court, H. K. Lamb recovered a judgment against Seaborn Dozier for $300 00 principal, and $139 00 interest to date of judgment, with accruing interest. The execution based on this judgment was levied on certain lands as the property of the defendant. He filed an affidavit of illegality to the effect that he had never-been served, and the papers were returned to the superior court. Upon the trial of the issue thus formed, the evidence made this case: The record showed personal service on the defendant by James J. Drew, deputy sheriff, of date August 2d, 1860.</p> <p>The defendant testified that he had no recollection of having been served by the sheriff; that if service had been perfected on him he would have filed the copy writ with his papers and kept it until the case was decided, as such was his uniform custom. That had he received notice of the suit he would have defended it. That he would soon be seventy-four years old.</p> <p>The defendant’s wife testified that she knew the defendant had never been served, because when he was sued he always-told her of it, in order that she might be informed about his-business if anything happened to him. That she always took the papers and kept them, but that she had never seen any papers in this case, nor heard the defendant say anything about it.</p> <p>The plaintiff’s attorney testified to having had several conversations with the defendant in reference to the suit both before and after judgment, in which the latter made no claim of never having been served.</p> <p>The jury found in favor of the defendant. The plaintiff' moved for a new trial because the verdict was ‘contrary to the evidence. The motion was sustained, and the defendant excepted.</p>

<p>Administrators and executors. Witness. Husband and wife. Evidence. Before Judge Strozer. Dougherty Superior Court. April Term, 1874.</p> <p>Eor the facts of this case, see the opinion.</p>

<p>Appeals. Principal and agent. Before Judge Buchanan. Floyd Superior Court. January Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Warehousemen. Factors. Landlord and tenant. Lien. Before Judge Hall. Spalding Superior Court. February Term, 1874.</p> <p>This case was submitted to the presiding judge without the intervention of a jury. The facts were briefly as follows:</p> <p>In the year 1872, George W. Grant rented from Dobbins a farm near Griffin, for which he was to pay five bales of cotton, averaging five hundred pounds, rent. In the fall of that year Grant stored with Clark & Cole, warehousemen, in his own name, ten bales of cotton, which had been produced on the place rented from Dobbins. He'sold two bales which were accordingly delivered to the purchaser. On the remaining eight bales, Clark & Cole advanced from time to time, $290 00, indorsing the amounts on the receipts, and taking up the same.' This action was in accordance with the custom prevailing between warehousemen and planters. Dobbins, having received no rent, demanded of Clark & Cole his five bales. The latter delivered to him receipts for the five bales with the advances indorsed thereon. According to the testimony of Dobbins he did not notice the indorsements until he attempted to sell the cotton. He immediately demanded from Clark & Cole the cotton. They offered to deliver the same to him upon the payment of the amount of the advances with interest. This he declined, and forthwith sued out his distress warrant. According to the testimony of Cole, more than one month previous to this demand, Dobbins had ascertained the weights of the bales and the advances which had been made, making no objection to the latter. The receipts contained the stipulation that the cotton was subject to the order of the holder of the same upon the payment of expenses and all advances. At the time the cotton was stored and when the advances were made, Clark & Cole had no notice of the claim of Dobbins for rent, or of the claim of L. R. Brewer & Son for guano furnished.</p> <p>L. R. Brewer & Son claim that in the spring of 1872, they furnished Grant with guano and took a lien on his crop; that in the fall of that year they notified Clark & Cole that they held such lien to which his cotton was subject, but are unable to state whether such notice was given prior or subject to the advances; that at the time-they took such lien they had no notice of the claim of Dobbins for rent.</p> <p>The eight bales of cotton were sold and the proceeds held up for distribution, there not being sufficient to satisfy all the claims.</p> <p>The court ordered that the charges of the warehousemen for expenses be first paid, then Dobbins, then Brewer & Son, and lastly the advances of Clark & Cole. To which ruling the latter excepted.</p>

Arbitrament and award. Waiver. Evidence. Laches. Before Judge Hall. Pike Superior Court. April Term, 1874.

Criminal law. Severance. New trial. Costs. Practice in the Supreme Court. Before Judge PIerschel ~V. Johnson. Washington Superior Court. March Term, 1874. James Durden, John Durden and Robert Fisher, were charged with the offense of riot.