Volume 53 — Georgia Reports

<p>1. Where complaint for land was brought by certain heirs-at-law, against the defendant, and their right to recover depended upon the question as to whether the husband of the defendant, when in life, held as tenant of plaintiffs' ancestor, the defendant, claiming under her deceased husband, is placed in the same position which he would have occupied, and is therefore incompetent to testify as to the character of his possession.</p> <p>2. Where the verdict was required by the testimony independent of illegal evidence which had been admitted, a new trial will not be ordered.</p> <p>3. Prior to this action, the plaintiffs having sued out a warrant against the defendant as a tenant at sufferance, to obtain possession of the land, and the defendant having filed an affidavit denying such tenancy, 0 and a verdict having been returned in her favor, the judgment based thereon was conclusive of the fact that she did not hold possession as their tenant or as the tenant of their ancestor.</p>

<p>1. A -workman employed by a railroad company to do the work of an ordinary laborer on its track, and who is injured while .he is being carried on a train of the company from the place of his work to the camp where he stays at night, comes within the provisions of sections 2083 and 3034 of the Code, so far as his right to recover damages for the injury, is affected by the question of negligence on his part. ■</p> <p>2. Though in such a case the company or its agents may be guilty of negligence, yet if the injured party could have avoided the ponsequenees to himself of that negligence by the exercise of ordinary dili- ‘ gence, he is not entitled to recover.</p> <p>3. If it appears that both parties were guilty of negligence, and that the person injured could not by ordinary care and diligence have avoided the consequences to himself of the negligence of the company or its agents, he may recover, but the jury should lessen the damages in proportion to the negligence and want of ordinary care of the injured party.</p> <p>4. The rule given in the case of tile Macon and Western Railroad Company vs. Johnson, 38 Georgia, 408, for estimating damages where a suit is brought by a widow for the homicide of her husband, and no fault is proven on the part of the deceased, is affirmed. But the amount that such a rule would give should be lessened in proportion to the contributory negligence of the husband in causing his death.</p> <p>5. Under the evidence in this case, it was error in the court, when requested by the defendant to charge as to the doctrine of contributory negligence, to say in the hearing of the jury that “it did not apply to this case.” The defendant was entitled to a charge on that question, and when the attention of the court was called to it, the law on that subject should have been given. The remark of the court was, in effect, a denial of the right of the jury to consider it.</p>

Vendor and purchaser. Bond for titles. Ejectment. Promissory notes. Evidence. Bankrupt. Practice in the Supreme Court. Before Judge Clark. Sumter Superior Court. October Term, 1873.

Continuance^ New trial. Administrators and executors. Before Judge Buchanar. Troup Superior Court. May Term, 1873. Ornan Whatley brought complaint against Mary Bowling, as administratrix upon the estate of Archibald W. Tyree, deceased, for $316 25, besides interest, alleged to be due upon certain promissory notes made by her intestate. The defendant pleaded the general issue and plene administravit.

<p>That the affidavit upon which an attachment was based was sworn to by the plaintiff “as guardian,” was no ground to dismiss the proceedings. Such affidavit was the individual oath of the party swearing thereto.</p>

<p>1. A plaintiff in garnishment is not entitled to enter a judgment against the garnishee, because the answer was filed in vacation, the same hav- ' ing been so filed subsequent to the term next after service of the summons and before judgment was obtained against the principal debtor.</p> <p>2. If the answer admits indebtedness to the defendant of a certain sum, but sets up that he is indebted to the garnishee in a certain other sum of a much larger amount, and the plaintiff asks a judgment for the sum so admitted, on the ground that a claim of the garnishee against the principal debtor, if not due, cannot be retained under the doctrine of set-off, and it does not appear from the pleadings that it is not due, the plaintiff should traverse the answer and prove the fact on which he relies, before he can assert any right to the judgment he seeks.</p> <p>3. Where a garnishee discharges himself by his answer, he.is entitled to a judgment against the plaintiff for the cost.</p>

Corporations. Judgments. Lost papers. Executions. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. On June 5th, 1854, the Bank of Brunswick instituted ac* tions of assumpsit against the Water Lot Company of the city of Columbus, one for $> 782 30, besides interest, and the other for $250 00, besides interest, alleged to be due upon certain due bills. Judgments were obtained on June 7th, 1855, and executions issued on July 9th, 1855.

Criminal law. Arson. New trial. Before Judge Hill. Houston Superior Court. May Term, 1874. Paul Jenkins was placed on trial for the offense of arson, alleged to have been committed upon the guard-house, in the town of Port Valley, on March 22d, 1874. The defendant pleaded not guilty. The evidence made the following case : The guard-house referred to in the indictment had two doors to it, an outer and an inner door.

<p>1. Where a court of equity would originally have had jurisdiction of the case, the fact that concurrent jurisdiction has been given to the common law courts, does not deprive it thereof; and where1 courts have concurrent jurisdiction, that first taking will retain it.</p> <p>2. Where a warehouseman’s receipt for cotton was lost or destroyed, a court of equity has jurisdiction of a bill filed for the recovery of the cotton, containing therein an offer of bond and security to indemnify the warehouseman from any subsequent liability on such receipt.</p> <p>3. Especially should a demurrer to such a bill be overruled, where it appears that if the same be dismissed the remedy of complainant at law would be barred by the statute of limitations.</p>

<p>1. A creditor does not have a laborer’s lien for work which he has done for the debtor by other persons hired by him to do the work.</p> <p>H. Upon the trial of an issue formed in such a case, it is necessary to a recovery by the creditor for any part of the claim, that he should show for what portion of the work he is entitled to the lien arid the value of such portion.</p> <p>3. In such a proceeding the plaintiff cannot amend so as to change the case into an ordinary action of assumpsit or complaint.</p>

Judgments. Scire facias. Statute of limitations. Before -Judge James Johnson. Muscogee Superior Court. November Term, 1873. On January 10th, 1856, Hugh Dolan obtained a judgment •against Peter McLaren, as garnishee, in a suit in which the Rock Island Factory was defendant, for $127 50, principal, «$7 65 interest, and costs of suit. Execution issued on January 6th, 1857.

Illegality. Bond. Costs. Attorneys. Lien. Before Judge Hill. Twiggs Superior Court. April Term, 1874.

<p>■Roads and bridges. Diligence. Before Judge Strozer. Dougherty Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Criminal law. Rape. Indictment. Before Judge Schley. Bullock Superior Court. April Term, 1874.</p> <p>Robert Joice was indicted for the offense of rape, as follows: “For that i^he said Robert Joice, in the county of Bullock and state of Georgia, aforesaid, oxi the 6th day of March, in the year 1874, with force and arms, in and upon one Sarah E. Groover, in the peace of God and said state, willfully,-feloniously and violently, did make an assault, and her, the said Sarah E. Groover, did then and there forcibly and against her will, feloniously ravish and carnally know, contrary,” etc. The indictment also contained a count for an assault with intent to commit a rape. A motion to quash was made upon the ground that the indictment failed to show that the person upon- whom the offense in each case alleged to have been committed, was a female. The motion was overruled, and the defendant excepted.</p> <p>The evidence disclosed that Sarah E. Groover was in the kitchen of her father’s house, washing up dishes by the light of a lamp; that as she started out of the kitchen door, the defendant blew out the light and caught her around the waist; that he did not pull her to him; that she called her father, who came; that it was dark in the kitchen when the lamp was blown out, though there were coals in the fire-place; that she came out of the kitchen crying; that this building was about thirty yards from the house.</p> <p>The jury found the defendant guilty of an assault with intent to commit rape. A motion was made for a new trial because the court erred in refusing to quash the indictment, and because the verdict was contrary to the law and the evidence. The motion was overruled, and defendant excepted.</p>

Money rule. Practice in the Superior Court. Judgments. Amendment. Bond for titles. Levy and sale. Vendor and purchaser. Before Judge Jambs Johnson. Muscogee Superior Court. November Term, 1873. Hugh G. Ivey, sheriff of Muscogee county, held certain funds in his hands, realized upon a sale of property under an execution against John F. Cleghorn.

Factors. Practice in the Supei’ior Court. Liens. Claims. Execution. Levy. Before Judge Buchanan. Troup Superior Court. November Adjourned Term, 1874. On October 9th, 1869, Hutchinson & Brother foreclosed, in one proceeding, various factor’s liens, given, as alleged in the affidavit, under the act of December 15th, 1866, aggregating in amount $1,225 66, against Zachariah Colly and W. W. Wilder.

<p>Deed. Witness. Presumption. Registry. Before Judge Strozer. Randolph Superior Court. May Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>B. was security on a note payable to G. and was also executor on the estate of his principal. G. having obtained judgment on his debt caused a levy to be made on the property of the estate. B. filed a bill of injunction and to marshal the assets. A decree was taken in 1869 reciting that it was by consent of all parties, creditors and heirs, and directing, among other things, the payment of a certain proportion of the debts, except that of G., which was stated in the decree to be a slave debt, and out of the jurisdiction of the court. A levy was afterwards made on the individual property of B., who filed an affidavit of illegality, setting up the foregoing facts, and that he had sold the property of the estate, paid what was going to creditors, and divided the balance with the heirs, and claiming that he was thereby dis- ' charged as security. B. was one of the heirs :</p> <p>Held, that B. was not discharged.</p>

Bankrupt. Attachment. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. Loudon, as assignee of the Empire Cotton Seed Pluller and Oil Company, moved to dissolve an attachment against said company in favor of John King, upon the following statement of facts: The attachment was levied on May 14th, 1872. The defendant was adjudged a bankrupt by the district court of the United States for the southern district of New York, on July 2d, 1872.

Bond for titles. Contracts;- Homestead. Verdict. Practice in the Superior Court. Before Judge Kiddoo. Sumter Superior Court. October Adjourned Term, 1873. Crocker brought complaint against Cook on two notes dated October 31st, 1870, the first for the sum of $1,000 00, payable to the plaintiff, or bearer, by December 25th, next thereafter, with a credit thereon of $400 00, of date December 23d, 1870; the second for $1,100 00, payable by December 25th, 1871.

<p>An execution was levied on cotton by the sheriff; on the day of the levy, by agreement of plaintiff and defendant in fi. fa., the cotton was turned over to the former to be credited on the execution. About five days after this transaction, notice was given to the sheriff by an attorney for another plaintiff in Ji. fa. not to pay over the proceeds of the sale of the cotton to the owner of the execution first levied, a3 he claimed it on a Ji. fa. of superior dignity:</p> <p>Held, that a rule against the sheriff at the instance of the second plaintiff in execution was properly discharged.</p>

<p>Williams gave his written promise to pa.y by a given date to T. J. Dooly, as administrator of L. J. Dooly, $451 00, adding thereto “which is to be discharged and paid in notes and demands I hold against the estate, to {he extent and as far as the estate is sufficient to pay the debts thereof-."</p> <p>Held, that Williams was not bound to tender the notes and demands he held against the estate to the administrator on the day his contract matured, or forfeit all rights under it. By the contract the claims were so connected with the debt created by it, as to entitle Williams to a credit of such sum as he had a right to claim out of the estate, whenever the same could be ascertained.</p>

Criminal law. Indictment. Grand Jury. Witness. Aliens. Municipal corporations. Jurisdiction. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874. Reich was presented for the offense of keeping open a tippling house on the Sabbath day.

<p>Statute of limitations. Warranty. Before Judge Hopkins. Fulton Superior Court. April Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Injunction. Partnership. Executions. Before Judge James Johnson. Muscogee county. At chambers.' August 1st, 1874. Abram Gammell filed his bill against Randolph L. Mott and Randolph M. Mulford, praying that the latter might be enjoined from enforcing two executions against the individual property of complainant. The grounds upon which the injunction was sought are succinctly stated in the above headnote, and it is unnecessary to repeat them here.

<p>A mere notice to the sheriff to retain money collected under legal process, unless accompanied by some lien claiming it, will not justify him s in withholding it from the plaintiff under whose process he received it.</p>

Criminal law. Before Judge Harris. Dooly Superior Court. March Term, 1874. Counsel for Christmas proposed to take the following order: “ The State vs. Nathan Christmas. “ September Term, ISIS.

<p>Where the plaintiff was employed for one year, at a stipulated sum per month, but was discharged before the expiration of his term, and thereupon sued and obtained a judgment for the amount due up to the time of such discharge, he is not thereby estopped from instituting proceedings to recover the balance due him for the remaining portion of the year.</p>

Illegality. Continuance. Witness. Before Judge Kiddoo. Early Superior Court. October Term, 1873. Carrigan brought complaint against Chancy on a note dated January 20th, 1862, due one day after date, payable to J. M. & R. W. Wade, or bearer, for $189 72, with a credit thereon of $115 00, of date January 1st, 1863. At the October term, 1866, judgment was confessed by the defendant for $106 80, principal, with interest and costs of suit.

<p>Administrators and executors. Guardian and ward. Sales. Before Judge Bartlett. Greene Superior Court. March Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>When, in a suit against an administrator on a debt of his intestate, he had failed to file any issuable plea under oath, and vhe court gave a judgment for the plaintiff’s demand, and during the term the defendant moved to open the judgment, with leave to plead plene administravit, alleging, under oath, that he had in fact fully administered the estate, and paid all the assets out to debts'of higher dignity than the plaintiff’s debt; that he was led to think, from the statement of the ordinary to him to that effect, that it was unnecessary for him to plead, as a judgment against him would, in such a case, only bind the assets that might afterwards come into his hands, and that for this reason he had failed- to plead plene administravit. To this was added an affidadavit of the ordinary, who was also a lawyer, that he had been consulted by the defendant as to whether it was necessary for him to plead, and that he, knowing that all the assets had been paid out to debts of higher dignity, told him it was not necessary, as a judgment in such a case would only bind future assets, and that he so thought at the time:</p> <p>Held, that it was not error in the judge to grant the motion. During the term it is in the discretion of the court to review any judgment it may have made.</p>

<p>Injunction. Taxes. ' Before Judge Schley. Chatham county. At Chambers. November 26th, 1874.</p> <p>For the facts of this case, see the decision.</p>

Ejectment. Landlord and tenant. Judgment. Statutes of limitation. Fraud. Evidence. Before Judge Clark. Sumter Superior Court. April Term, 1873. David G. Rodgers brought trespass vi et arm's against Samson Bell and Alexander W. Wheeler for $1,000 00 damages, for ejecting him from a certain lot of land in the county of Sumter. The record fails to disclose any plea.

<p>Partnership. Statute of frauds. Before Judge James Johnson. Muscogee Superior Court. October Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

<p>Insurance. Amendment. Before Judge Clark. Sumter Superior Court. April Term, 1874.</p> <p>Bridget A. Croghan, trustee, brought case against the New York Underwriters’ Agency for $500 00 damages, averring substantially as follows: That said defendant, by its agent, in the city of Americas, on October 13th, 1869, insured certain property of the plaintiff to the amount of $500 00 for the term of one year; that about two weeks before the expiration of said policy, said defendant, by its agent, promised to renew the same when it should expire; that'notwithstanding said promise, and notwithstanding the fact that money sufficient to pay the premium upon such renewal was left in the hands of plaintiff’s agent for said purpose, said defendant failed to renew said policy, as it had contracted to do; that plaintiff believed that the defendant had complied with its promise until about December 1st, 1870, when the property insured was totally destoyed by fire, to the damage of plaintiff $500.</p> <p>The defendant demurred to the declaration. Pending the argument of this question, plaintiff proposed to amend by adding a count upon an express contract of insurance, charging that the defendant did renew said policy on the 13th of October, 1870, for the period of one year.</p> <p>This being refused by the court, the plaintiff proposed to amend the original declaration by changing it into a suit upon such express contract. This the court also refused to allow. The demurrer was then sustained; and the plaintiff excepted to each of the rulings aforesaid.</p>

<p>Where, upon an indictment for an assault with intent to murder, the defendant was found guilty of whipping his wife, the judgment should be arrested.</p>

Evidence. Possession. Attachment. New trial. Before Judge Hansell. Randolph Superior Court. November Term, 1873. On April 1st, 1871, an attachment in favor of Hood & Kiddoo against Thomas Ozmore, for $408 09, principal debt, besides interest and costs, was levied upon lot of land number one hundred and fifty-two, in the ninth district of Randolph county. Judgment was obtained at the November term, 1871, and execution was issued and levy made.

<p>Equity. Demurrer. Municipal corporations. Constitutional law. Eminent domain. State. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

<p>1. As a general rule, a jury may, if the evidence justify it, find the defendant guilty of the attempt under an indictment charging the actual commission of a crime.</p> <p>2. When the penalty fixed by law for an offense is neither death nor imprisonment in the penitentiary, not less.than four or not less than two years or not exceeding one, or fine not exceeding $500 00, or imprisonment, or both, there is no penalty prescribed by law for an attempt to commit such offense.</p>

<p>1. Where the evidence disclosed that an express company received the goods of the plaintiff at Savannah, for the purpose of transportation to the city of Atlanta, and that the same were not transported, it was error in .the court to award a non-suit.</p> <p>2. Whether the defendant can protect itself from its common law liability as a common carrier for the loss of the plaintiffs’ goods, by showing that it received them under a contract made with another company, or as the agent of another company, or whether the plaintiffs had the right to elect to sue either company for the loss of their goods, are questions not now before the court.</p> <p>3. A non-suit was awarded in the superior court, and such a decision was brought by writ of error, to this court, without any supersedeas having been obtained, where the judgment aforesaid was affirmed i</p> <p>Held, that a second suit, commenced within six months from the date such affirmance was made the judgment of the superior court, but after the expiration of six months from the date of the decision awarding a non-suit, came within the provision's of section 2932 of the Code.</p>

Judgment. Service. Officer. Presumption. Before Judge Stbozeb. Quitman Superior Court. November Term, 1873. Elizabeth Jones and Debby Jones brought suit in the justice court for the one thousand one hundred and ninety-fifth district, against John G. D. Pittman, on a note dated May 16th, 1873, payable one day after date to plaintiffs or bearer, for $32 17. The usual notice of suit was served upon the defendant, except the justice failed to sign it.

<p>Criminal law. Verdict. Practice in the Superior Court. Eecord. Before Judge Schley. Chatham Superior Court. November Special Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>(Tkippe, Judge, was providentially prevented from presiding in this case.)</p> <p>1. Under the acts of 17th of March, 1866, pamphlet, 22, and 17th of March, 1866, pamphlet, 71, passed in pursuance of the constitution of 1865, the jurisdiction of the inferior court as a court of law over civil cases was abolished, and the cases upon all its dockets transferred to the county court, and, under these acts, it was competent'for the clerk of the county court, on the 1st of January, 1868, to issue an execution on a legal judgment obtained in the inferior court, on which no execution had been issued.</p> <p>2. An entry made by a deputy sheriff, or by his direction, in his presence, upon an execution, of a levy on a described lot of land, with intent then and there to devote the land to sale under the execution, but-by mistake not signed by him, is a good levy if the signature be aftached during the official term of the deputy sheriff, or if the same be not signed during his term, the entry may be afterwards perfected, under an order of the court, or the mistake may be shown by evidence, on a trial in which the validity of the levy may be in question, but it is not competent for the deputy, after his term has expired, or whilst he is the deputy of a succeeding sheriff, to peifect said entry by signing, the same.</p> <p>3. The proceedings of a court of record can only be shown by the records, unless they.b.e lost or destroyed, and if, upon the production of the minu'es of the;'inferior court, it appears that there is no record of the swearing and impanneling of a jury at a certain term of said court, a verdict entered upon the minutes at said term is, prima facie, void, as well as a judgment entered up thereon.</p> <p>4. Whether such defect can be corrected by an entry nunc pro tune, on motion in the proper court, as against a purchaser from the defendant, or against one who has subsequently obtained a lien, qacere?</p>

<p>The verdict being sustained by the evidence, the motion for a new trial was properly overruled.</p>

Principal and agent. New trial. Before Judge Strozer. Randolph Superior Court. May Term, 1874.

<p>1. Upon the trial of a tax cellector for embezzlement, transcripts from the books of the comptroller general and treasurer of the state, certified under section 3316 of the Code, are admissible in evidence to show a failure on the part of such defendant to pay over the taxes collected by him.</p> <p>2. A moiion for a continuance based on the ground that the indictment had been found only two days before the case was called for trial, and that the defendant’s counsel had been constantly engaged in the business of the court to the exclusion of any opportunity of preparing the case, or even of consulting withjhis client, was properly overruled, it appearing that the defendant had been arrested under a warrant at the previous term of the court, and was then as fully informed of the nature of the accusation, as he was after the indictment was found.</p>

<p>When the verdict of the jury is for one-fourth more than is justified by' the pleadings and evidence, and the court below granted a new trial, this court will not reverse the judgment, nor will it put the defendant in error on terms so as to require him to write off the excess when the evidence is conflicting as to his right to recover at all. The judge having granted a new trial, his judgment ought not to be disturbed.</p>

Husband and wife. Registry. Marriage settlemenk Fraudulent conveyance. Debtor and creditor. Before Judge Hill. Houston Superior Court. May Term, 1874. For the facts of this case, see decision.

Partnership. Before Judge Hill. Houston Superior Court. May Term, 1874. Carter brought complaint against R. R. & Daniel Adams for $199 38, besides interest. The defendant, Daniel Adams, leaded the general issue and no partnership. Upon the question of partnership the evidence presented the following case: R. R. Adams was the son of Daniel Ac[ams.

<p>1. The place of the execution of the commission attached to interrogatories must appear, otherwise such evidence should be excluded.</p> <p>2. Where the facts stated in the affidavit of a witness in support of a motion for a new trial in behalf of the defendant, on the ground of newly discovered evidence, are controverted by the plaintiff, who submitted divers affidavits to the court, which he claimed showed the statement of such witness to be entirely unworthy of credit, but which did not attack such witness upon the ground of general had character, this court will not control the discretion of the court below in ordering a new trial.</p> <p>S. It was error 'in the court to remark, in its charge to the jury, that certain evidence which had been introduced upon the trial was of but little value, and to give its reasons therefor.</p> <p>4. It is improper for the court, in the presence of the jury, to ask counsel if they will consent for the jury to disperse after having agreed upon their .verdict, but before having returned it into court.</p>

Criminal law. Bail. Bond. Before Judge Knight. Towns Superior Court. November Term, 1873. George W. Caradine entered into two recognizances with Edwin P. Williams as security, for his appearance at the superior court of Towns county to answer to two indictments, each for the offense of assault and battery. He failed to appear, and the bonds were forfeited. Executions issued and were levied upon the property of the security.

<p>Receivers. Contracts. New trial. Practice in the Supreme Court. Before J udge McCutci-ien. Bartow Superior Court. March Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Municipal corporations. Railroads. Bonds. Indorsement. Before Judge Hill. Bibb county. At Chambers. October 10th, 1874.

<p>1. A motion for a new trial was made during the term of the court at which the verdict was rendered, and sixty days allowed by order for the filing of the brief of the evidence. Such brief was agreed to. within the time allowed, but it was not convenient for the judge to hear the motion at the appointed date, so he approved the evidence and ordered the same to be filed without limitation as to time. After the expiration of the sixty days allowed by the first order had expired, a second order was passed, by consent of plaintiff’s counsel, that the motion should be heard at such time as would suit the judge:</p> <p>Meld, that the discretion of the judge in refusing to dismiss the motion for a new trial because the brief of evidence was not filed within the sixty days originally appointed, will not be controlled, especially as ' plaintiff's counsel made no objection on this ground when they consented to the second order above mentioned.</p> <p>2. Where the question at issue was as to the damage sustained by the plaintiff by reason of the taking of his land for railroad purposes, evidence of its value to the defendant was inadmissible.</p> <p>3. Upon the trial of such an issue, evidence of the defendant’s having backed water upon the plaintiff’s land by the erection of a dam, was inadmissible. His remedy would be by an action of trespass.</p> <p>4. The testimony of a witness to the effect that he was one of a company about to engage in the pork packing business, and had examined the plaintiff’s shoal and water power with the view of purchasing it for that purpose, and was willing to give $6,000 00 therefor; that he thought it was worth that amount, but the other members of the company were not willing to give more than $5,500 00, was inadmissible. It was entirely too speculative and uncertain as to what was the value of the plaintiff’s property at the time it was taken.</p> <p>5. The statement of a witness that, by reference to a book issued by a company advertising the sale of turbine wheels, he came to the conclusion., taking into consideration the fall that could be obtained, that a twenty horse power could be procured, was inadmissible, the book not being in court, and the witness testifying from h¡3 recollection of the assertions therein made.</p> <p>6. The rule of damages in this case is the actual value of the plaintiff’s land taken by the defendant for the use of its road, at the time it was so taken, which may be proved by the opinion of witnesses who were acquainted with and had knowledge of its cash value at that time. As to the consequential damage done to the mill shoal by the defendant’s road, the plaintiff may show what was its actual cash value at the time the road was located on his land, and how much and to what extent that value was diminished by such location.</p>

Jurisdiction, Venue. Statute of limitations. Before Judge. Hall. Henry Superior Court. October Term, 1873.

<p>(Trippe, Judge, was providentially prevented from presiding in this ease.)</p> <p>1. Where two city lots adjoin, the lower lot owes a servitude to the higher so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means.</p> <p>2. The discretion of the chancellor in granting or refusing an injunction, will not be controlled where the evidence produced before him was conflicting.</p>

Claim. Execution. Levy. Description. Before Judge Hall. Newton Superior Court. September Term, 1873. An execution in favor of Stephen C. Glass against Isham H. Berry and Andrew J. Berry, security, was levied upon certain property, as follows: “Levied the within jfi,. fa. on three hundred acres of land, more or less, whereon the defendant’s family now lives, adjoining lands of S. Glass on the west, and others. This 29th December, 1858.

<p>County matters. Taxes. Ordinary. Judgment. Evidence. Before Judge Strozer. Dougherty Superior Court. October Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

<p>[Teippe, Judge, was providentially prevented from presiding in this case.]</p> <p>1. Under the facts of this case, we cannot say that the verdict of the jury is so contrary to or without support from the testimony, as to authorize this court to determine that the judge of the superior court abused his discretion in refusing to set it aside.</p> <p>2. As the conviction in this case is founded wholly on circumstantial testimony, this court directs that the judge of the court below resenfence the prisoner, and that in so doing, he exercise the discretion vested in him by law, in cases where the conviction is founded solely on circumstantial testimony.</p>

<p>1. In a proceeding to attach the defendant to a bill in equity for violating, a resiraining order of the chancellor, in collecting certain assets of an estate of which he was one of the administrators, it would be technically more correct t.o specify in the petition what assets had been collected ; but as the petition alleged that he had collected a large amount of such assets and converted the same to his own use, a demurrer "thereto was properly overruled.</p> <p>2. Where a defendant has eight days notice of o, proceeding to attach him for, violating a restraining order of ihe chancellor, in collecting and converting to his own use a large amount of the assets of an estate of which he was one of the administrators, the fads necessary to sustain such charge being peculiarly within his own knowledge, an application for a continuance was properly overruled.</p> <p>3. A restraining order has all the force of an injunction until rescinded or modified by the.chancellor.</p> <p>4. The judges of the superior courts of this s*ate, in the exercise of chancery jurisdiction, must necessarily be allowed a large discretion in enforcing obedience to their orders, which this court will not control unless grossly abused.</p> <p>5. It is within the di-cretion of the chancellor to rescind or modify his orders at any time, upon sufficient cause therefor being shown, or as the exigencies of the case may require.</p>

Criminal law. Assault with intent to murder.- Before Judge Strozer. Mitchell Superior Court. May Term, 1874. Wilson was placed on trial for an assault with intent to commit murder, alleged to have been committed on April 3d, 1873, upon the person of one Solomon Davis. The jury found 1 him “guilty of an attempt to make assault.” A motion in arrest of judgment was made upon the ground that there was no such crime. The motion was overruled, and defendant excepted.

<p>Injunction. Fraud.- Before Judge Jambs Johnson. Talbot county. At Chambers. October 15th, 1874.</p> <p>This case is sufficiently reported in the decision.</p>

<p>That the mortgagor has been adjudged a bankrupt, and the property-mortgaged claimed by him in the schedule to his petition annexed as a homestead, (it not appearing that the mortgagee ever proved his debt, or that any steps.have been taken in the bankrupt court to contest or discharge his mortgage lien,) are no reasons why the state courts should not proceed to foreclose the mortgage.</p>

<p>1. Ejectment was brought by plaintiffs against defendant for a certain tract of land. The latter had made advances for the benefit of the plaintiffs and of the property now sought to be recovered, and had purchased the land in satisfaction of said indebtedness, ata sale made under the order of the chancellor. This order was attacked by the plaintiffs as illegal:</p> <p>Held, that even if such order was auauthorized, yet the defendant, having purchased the property in good.faith, under color of legal proceedceedings, might set up the ‘facts aforesaid by an equitable plea, and claim to be reimbursed before a recovery could be had.</p> <p>2. Where a trust deed was executed prior to the time when the Code ■ went into effect, bnt the life tenant did not die until after that date, leaving the remaindermen minors :</p> <p>Held, that the chancellor had authority, at chambers, to appoint a trustee for said minors, and to order a sale of the property.</p>

Evidence. Promissory notes. Before Judge Kiddoo. Dougherty Superior Court. April Adjourned Term, 1874.

<p>1. A letter from the book-keeper of a manufacturing company to the defendants, without further proof of his authority, is inadmissible to show that the goods of said company were not sold to the defendants, but sent to them on consignment.</p> <p>2. The evidence being conflicting, a new trial will not be ordered.</p>

<p>1. Where several forty acre tracts of land were levied on and sold separately by the sheriff, all for less than the amount of the execution :</p> <p>Held, that as each lot was sol'd separately, the question of an excessive levy and sale did not arise.</p> <p>2. Where several lots of land are levied on by the sheriff under a valid execution, and are duly advertised, as the law provides, and are duly sold to the highest bidder, at the proper time and place, and in the mode prescribed by law, without any fraud of extraordinary circumstances to keep people from the sale, the purchaser gets a good title, however inadequate the price.</p> <p>3. Where a bill charges that purchasers at a sheriff’s sale, combined with the sheriff and each other to deter persons from bidding at the sale, it is error in the judge to dismiss the bill for want of equity, although he may be well satisfied from the answer that the charge is untrue. He may, for this reason, refuse an injunction prayed for, but the issue made by the bill presents matter for a trial by the jury.</p>

<p>New trial. Before Judge Buchanan. Troup Superior Court. May Term, 1873.</p> <p>A report of this ease is unnecessary.</p>

<p>Where á deed was made to A, in trust for his own use during his life, and for the support and education of such children as might be born to him, and if he die without children, remainder to the children of B, and A, before he had children, contracted a debt for supplies for his farm on said land, and upon suit being brought against him, as trustee, under sections 3377 et seq. of the Code, charging that the debt was contracted for the use of the estate, and describing the land, but not setting forth the terms of the trust, A making no defense, a judgment was taken subjecting the corpus of the whole land to the debt, and ordering the same sold to satisfy it, and execution issued and the sheriff was proceeding to sell the same accordingly:</p> <p>Held, that it was error in the judge, on a bill filed by A setting out the deed and averring that the debt was the debt of A alone, to refuse to enjoin the sale. The judgment was a breach of trust by A, and by the plaintiff, and equity will protect the beneficiaries other than A. The judge should have granted the injunction, directed the bill to be amended by making the remaindermen now existing, parties, appointing guardians ad litem, if they be infants, and on final decree, subject • the interest of A to the debt, with full protection to the rights of hia unborn children, should he have any, and of the remaindermen, should he die without children.</p>

<p>Subscription to the stock of an incorporated company does not create a statutory liability. Right of action thereon is barred at the expiration of six years.</p>

<p>1. Where, on the trial of a charge of permitting a minor to play billiards without the consent of his parents or guardian, there was proof going to show that the defendant honestly thought the minor was of full age:</p> <p>Held, that it was error to find the defendant guilty simply because the proof was positive that the young man was, in fact, a minor, without regard to any evidence going to show an honest mistake, after proper caution, by the defendant.</p> <p>2. In such a case it is not an absolute requirement of law that inquiry shall be made of the parent or guardian.</p>

<p>Roads and bridges. Prescription. Ways. Before Judge Underwood. Walker Superior Court. February Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Constitutional law. Criminal law. Jurisdiction. Before Judge Hopkins. Fulton Superior Court. April Term, 1874. Porter was placed on trial for the offense of having, whilst a constable, received from a prisoner, then in arrest and under a warrant for retailing without license, $25 00, said sum being paid in consideration of his releasing said prisoner and stopping the prosecution.

<p>(Tkippe, Judge, was providentially prevented from presiding in this ease.)</p> <p>1. The general assembly has not the power, under the constitution, to deprive the superior courts of. jurisdiction over misdemeanors.</p> <p>2. Where no objection is made to evidence introduced upon the trial, it is too late to base a ground of new trial on account of alleged error in its admission.</p> <p>3. The superior courts are not bound to "take judicial cognizance of what had previously transpired before them, unless the records of such proceedings are exhibited as evidence.</p> <p>4. There being sufficient evidence to sustain the verdict, it was not contrary to law.</p> <p>5. To sustain an indictment for keeping a lewd house, it Í3 only necessary to establish that the defendant contributed to and aided, directly or indirectly, in maintaining and keeping the same.</p> <p>6. Where a juror failed to answer to his name when called, after the •jury was stricken, but before the jurors were sworn or the ease submitted, it was not error in the court to order the panel to be filled and the jury again stricken.</p> <p>1. The defendant having gone to trial before that jury, without objection at the time, it was too late, even if the objection had been good, to-insist upon it as a ground for a new trial.</p> <p>8 The charge that the defendant maintained and kept a lewd house, was sufficient under the provisions of the Oode, without alleging that it wa3 a place for the practice of fornication or adultery.</p>

<p>Land. License. Riparian rights. Before .Judge Hopkins. DeKalb Superior Court. March Term, 1874.</p> <p>Thomas McGuire brought case against Zadock C. Baker and Bradford Humphries for $5,000 00 damages, sustained by reason of the backing of the water of “No Business” creek on certain lands of the plaintiff, situated in the counties of DeKalb and Gwinnett. The defendants pleaded the general issue, and set up title in themselvs to a portion of the land alleged to have been injured.</p> <p>The following brief statement of facts as presented by the testimony, is sufficient to an understanding of this case:</p> <p>Forty-five or fifty years ago Zachrey Lee built a mill and dam upon properly then owned by him. After his death, toAvit: in November, 1863, the tract of land upon which said dam Avas located Avas divided into parcels and sold by his executor. Zadock C. Baker bought that portion upon which the mill and dam Avere situated. Bradford Humphries Avas simply interested Avith Baker in the mill. The plaintiffs hold their land under the same sale. Baker built a new dam in July or August, 1871.</p> <p>There was evidence tending to show that since the erection of the new dam the back-water had been considerably increased, thus damaging the plaintiff. There was also testimony to the effect that this result was not duo to the dam, but to other causes beyond the control of the defendants. The defendants and other witnesses, testified that-the new dam was of the precise height of the old, and that if the back-water was thereby increased, it was due to the fact that the former was leaky, 'or out of repaip, or for some other cause, did npt-accumn-• late the head of water which its height would justify; that the new dam would produce no greater effect upon the water than the old one, in proper condition, would have done.</p> <p>The jury found for the plaintiff $1,920 00. The defendants moved for a new trial upon the ground, that the damages were excessive, and because the court erred in charging the jury, “that the defendants had no right, by their dam, to back or make the water in the pond higher than was customary or ordinarily the case with the the old dam;” and in defining or explaining the efficient height of the dam to be, “the height at which it was capable, as ordinarily used, of raising the water.”</p> <p>The court ordered a new trial unless the .plaintiff would write off from their verdict $1,620 00. This was done, and the defendants excepted.</p>

<p>Criminal law. Larceny. Before Judge Schley. ' Chat-ham Superior Court. November Special Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Trusts. Husband and wife. J udgment. Before Dennis F. Hammond, Esq., Judge pro hqo vice. Fulton Superior Court. April Term, 1874. Coughlin, in his own right, and as next friend for his minor children, brought complaint against Seago for two lots of land in the city of Atlanta. The record fails to disclose any plea.

<p>1. The verdict of the jury is supported by the evidence.</p> <p>2. 'The entire charge not being in the recoid, and therefore presumed to have been correct as applicable to the facts, a new trial will not be ordered because the court refused to charge “ that the fact that the goods alleged to have been taken from the house of the prosecutor, were found in the possession of the defendant, was not conclusive proof that the defendant was guilty of burglary.”</p>

<p>Criminal law.' Witness. Evidence. Before Judge Strozer. Dougherty Superior Court. April Term, 1874.</p> <p>Jack McDaniel was placed on trial for the oflense of malicious mischief, alleged to have been committed on November 13th, 1873, in burning a stack of fodder, the property of S. H. Wilson. The defendant pleaded not guilty.</p> <p>The evidence for the state was purely circumstantial. It showed that there had been “some unpleasantness” between the defendant and Wilson; that the tracks leading from the fodder stack went to the defendant’s house; that they resembled those usually made by him in measurement and general appearance; that defendant’s boots had metal and brads on the heels, the impression of which was left upon the tracks.</p> <p>The evidence for the defendant made a strong case of alibi.</p> <p>The jury found the defendant guilty. A motion was made for a new trial because the verdict was contrary to the law and the evidence, and because the court erred in allowing the state to impeach one of her witnesses without having previously shown that the prosecution was entrapped to introduce such witness by statements made by him contradictory to those testified to.</p> <p>The motion was overruled and the defendant excepted.</p>

<p>New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1873.</p> <p>For the facts, see the decision.</p>

Ejectment. Homestead. Trust. Mistake, Amendment, Equity. Charge of Court. Estoppel. New trial. Before Bichare H. Clark, Esq., Judge pro hac viee. Fulton Superior Court. October Term, 1873.

<p>1. That the name of the plaintiff has been twice changed by amendment in the progress of a suit, is no ground to quash the execution based upon the judgment obtained therein.</p> <p>2. Two executions were in the hands of the sheriff. He also had the proceeds of the sale of the defendant’s property, not enough to satisfy both executions. The owner of the junior^/?, fa. gave him notice to hold up the amount due on the senior as he intended to contest its validity. Thereupon, the sheriff retained'such sum, but paid over to the junior fi. fa. the remainder of such fund. Pending the contest • upon the validity of the older execution, arising upon a rule against the sheriff, the defendant died, and the ordinary allowed to his family a sum of money for their year’s support. His widow, thereupon, petitioned the court to have the balance in the hands of the sheriff paid over on said allowance. The court so ordered, and directed further that the sheriff pay over the amount due on said senior execution within thirty days, and in default thereof, that he be attached for contempt’</p> <p>Held, that inasmuch as the claim of the widow was not in the sheriff’s hands when he made the appropriation of the proceeds of the defendant’s property, by retaining the amount due on the senior fi. fa. for the payment thereof, and crediting the balance on the junior fi. fa., ■such subsequently acquired lien should not have been allowed to interfere with the rights of the parties as they stood at that tilne.</p>

Trusts. Husband and wife. Estoppel. Before Judge Kiddoo. Randolph Superior Court. May Term, 1874. Elizabeth J. Mounger filed lier bill against Mastín H. Duke, as administrator upon the estate of Edwin Mounger, deceased, making, in brief, the following case: On December 1st, 1869, complainant, then Elizabeth J. Allen, and Edwin Mounger were married.

Administrators and executors. Accounts. Before Judge Herschel Y. Johnson. Washington Superior Court. September Term, 1873. ' The above head-note states the sole point passed on in this case so clearly that any further report is unnecessary.

<p>The admissions or declarations of an executor are only competent evidence as to his own acts after he became clothed with such trust, and do not bind the estate which he represents in so far as they refer to what was told him by his testator during life.</p>

Mortgage. Jurisdiction. Claim. Practice in the Superior Court. Before Judge Knight. Forsyth Superior Court. April Term, 1873. Robert M. Barrett executed a mortgage to John Hackenhull on two lots of land lying in Forsyth county, and on one lot in Dawson county. The mortgage was recorded and foreclosed in the latter county. The execution based on said foreclosure was levied on the two lots situated in Forsyth county.

Evidence. Receipt. Before Judge Strozer. Dougherty Superior Court. April Term, 1874. Odom brought complaint against Walters on the following account: Jeremiah Walters “1873. To George W. Oclom, Dr. “January 1st. To services rendered as agent, superintendent dr overseer of ‘Porter place’ for the year 1872........................................$1,000 00 “ Credit. “December 12th, 1873.

<p>Service. Judgments. Process. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873.</p> <p>This case is fully reported in the above head-note.</p>

<p>Costs. Before Judge Pottle. Richmond Superior Court. October Term, 1873.</p> <p>For the facts, see the decision.</p>

<p>Under the special acts of this case, there was no error in the judgment of the court dismissing the certiorari.</p>

<p>Rule against sheriff. Laborer’s lien. Before Judge Hill. Twiggs Superior Court. April Term, 1874.</p> <p>The principles involved in the two cases above stated were precisely similar, and therefore only one case will be reported. They were argued and determined together.</p> <p>On the 28th of February, 1872, Patriot Fleming, by occupation a ditcher, made affidavit before a judge of the superior court, that under a contract with William B. and Benjamin M. Tarver, belabored on their plantation during the year 1871, except in the months of July and August, and twenty days lost time, at the stipulated price of board and $500 00 for ten months. That for his labor on said plantation under said contract, the said Tarver had become indebted to him in the sum of $466 66, of which amount only $35 00 had been paid; that for the balance due demand had been made and refused. On the 8th of March, 1872, the affidavit was filed in the clerk’s office, and a fi. fa. issued thereon. On the 26ih of March said fi. fa. was levied on five hundred and thirty-six acres of land in said county, of the value of $500 00, but no sale had taken place. At the April term, 1874, a rule against the sheriff, at the instance of plaintiff in fi. fa., came on for trial. Upon the trial Harriet M. Tarver having been made a party, showed to the court that at the April term of Twiggs superior court, 1873, she had obtained a decree in equity against William B. and Benjamin M. Tarver, and against certain property therein described (the land upon which the lien fi.fa. had been levied being a part of said property) and charged by the will of Hartwell H. Tarver, with the support and maintenance of the said Harriet M., and by judgment of the court made the “first charge and lien” upon said property. That a fi. fa. for the principal sum of $52,500 00, and $36-750 00 interest, had been issued on said decree, and was in the hands of the sheriff, and insisted that the money which should arise from the sale of said land levied on should be paid to her.</p> <p>After argument, all parties being represented, it was ordered by the court that “ the sum of $500 00 be brought into court ■by said sheriff, or so much thereof as. is necessary to pay the priucipal, interest and costs due on this (the lien) fi.fa., and be paid over by said sheriff to the counsel for the plaintiff (Patrick Fleming) in satisfaction of the'same.” To which order and decision the said Harriet M. Tarver and the said sheriff excepted.</p>

County matters. Ordinary. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873.

<p>Equity. Ordinary. Jurisdiction. Wills. Before Judge Gibson. Columbia Superior Court. March Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>State. Prescription. Title. Land. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.</p> <p>The pleadings and evidence in this case present, substantially, the following facts:</p> <p>Complainant owns lots twelve and thirteen, on which the National hotel stands, in Atlanta. She sets up title to a strip of ground, say twenty feet wide, lying between the hotel wall and the railroad. The defendant ivas laying a side track on a part of this strip. She files this bill to enjoin the laying thereof. An interlocutory injunction1 was granted, which stood until the trial. The deed on which defendant relies was made by Samuel Mitchell, on the 11th day of July, 1842, the only material portion of which was as stated in the above head-note.</p> <p>This deed was never recorded until the 11th day of October, 1849.</p> <p>In 1842, but whether before or after the date of this deed, does not appear, F. C. Armes, as assistant to C. F. M. Gar-nett, who was then chief engineer, located the state square and the right-of-way through lot seventy-seven, leading to the square. There is no dispute that he (Armes) marked off tin's right-of-way one hundred feet wide east of Whitehall street, and both Armes aud Garuelt swear that, to the best of their recollection, it was one hundred feet wide west of Whitehall; and the evidence of L. P. Grant is to the same effect, who swears that he often saw 'the original plat made by Armes. There was no other designation of the width of the right-of-way laid off, than that Armes ran the lines, and made a plat of the ground-, which was filed away in the chief engineer’s office. The original was lost long ago, and there is no copy or duplicate, but Grant testifies that Vincent’s map, made in the year ......, was modeled after it. By Vincent’s map the right-of-way is one hundred feet wide the whole distance. In 1845 complainant’s husband bought lots twelve and thirteen, built a dwelling on the property, and it has ever since beén in the possession of those claiming under the Dougherty title.</p> <p>But the bond for titles from Samuel Mitchell was not made until the 23d day of February, 1847, which recites the purchase money at $400 00, $240 00 of which was cash, and the balance due December 25th, 1848. After taking this bond, Samuel Mitchell died, and Patrick Connally, complainant’s father, having become the holder of the boud for tifies, took a deed from Mitchell’s administrator. This deed is dated 28th day of January, 1850, and was recorded 8th day of October, 1850. The rights of Dougherty and Connally passed to complainant by inheritance. This bond for titles, and deed made under it, bound the lots on the south by the Western and Atlantic Railroad.</p> <p>East of Whitehall street the use and occupancy of the right-of-way, to the width of one hundred feet, and up-to the line contended for by the defendant, has been uniformly recognized by the coterminous proprietors. But west of Whitehall street the holders of the Dougherty title have uniformly asserted and maintained that the line was where complainant now contends and held possession accordingly.</p> <p>The main track of the Western and Atlantic Railroad was laid along the locality in question in 1842, and for several years there was no other track there but that. After some years the Macon and Western Railroad and the Atlanta and West Point Railroad, came in on the right-of-way of the West-, era and Atlantic Railroad, and laid down two or three tracks each, all south of said first track, but on right-of-way as laid off by Armes. They ran four or five trains each per day, if not more. The Western and Atlantic Railroad had but the one main track west of Whitehall street until the shops were. mQ.ved from the state square, in 1853 — after that, had t.wo shielings laid down. None of these tracks encroached on the property claimed by complainant, except one for a short time, with her consent, her rights being then expressly acknowledged. After the Central Railroad leased the Macon and Western Railroad, it was determined, in 1872, to re-model the tracks in the yard at that point. In order to give the Central more room on the south side, the defendant determined to move its track some distance to the north, and by the plan of one of these changes, one of the sidelings, not the main track, would be on the disputed twenty feet. It was in testimony that more trains run, or have to be switched there now, than formerly, and more tracks are needed than when the road was located.</p> <p>The freight depot buildings, shops, etc., were moved oft the state square and off of the Samuel Mitchell lands in 1854, and located on lot number seventy-eight, and after that only the passenger business of the road was done at' the state square where the union passenger depot is located. Vincent’s map and Cooper’s map were both putin evidence, and there was an agreement to use the originals in the supreme court, because impracticable to copy them.</p> <p>The Dougherty conveyances call for two acres of land, more or less, and if complainant gets all she claim's title to in this bill, she will-have much loss than that quantity.</p> <p>The side track about being laid when the change in the tracks took place to give the Central Railroad more room, is the one sought to be enjoined by this bill. If the Macon and Western tracks and the Atlanta and West Point tracks were removed there would be room enough, and more than enough, for all purposes of the Western and Atlantic Railroad, without encroaching on the disputed ground.</p> <p>There was no proof of notice to Dougherty or Connally of the deed of 1842. The court charged as follows :</p> <p>“ Gentlemen of the jury: . Ifc is said in the bill that complainant is owner of a certain lot of land in the city of Atlanta, which is described in the bill, to which she holds title under Samuel Mitchell; and that upon that land the Western ,and Atlantic Railroad Company has attempted to commit a trespass, and to put its tracks upon and occupy the land, and she asks the court to interfere and enjoin them from taking it. The defendant in the case says that the land on which it has entered was not the property of Mrs. Dougherty, but the property of the state of Georgia; and that it had been leased to defendant by act of the Legislature; that it has not passed beyond the limits of the land which the state held, and which had been conveyed to the defendant. You are to determine which is the true theory: whether the defendant, the Western and Atlantic Railroad Company, has gone upon land belonging to complainant.</p> <p>“ The defendapt says that in 1842, Samuel Mitchell gave to the state of Georgia, for the purposes of the Western and Atlantic Railroad, a right of way for making a road or track of sufficient space or breadth to answer all convenient and necessary purposes of said xxxad, as xnight be designated by the chief engineer of said state. And defendant further clainxs that that deed was x-ecorded in 1849, and that subsequent to that date Mx-s. Doughex-ty acquix-ed her right to lots numbers twelve and thirteen; that its right to the property in dispute was acquix’ed by_a conveyance prior in time to hers; and that a deed made subsequently could not cover the land, which was granted under the conveyance, made by Samuel Mitchell, in 1842, to the state.</p> <p>“By the deed from Samuel Mitchell to the state, it was x’eferred to the chief engineer to designate the precise parcel of land which was to pass under the deed to the state; and you are to look to the testimony in the case axid see whether he did, under this deed, designate the right of way or tract of land which, in his judgment, was necessary for the purposes of the road under this deed. If he did that, and the state, by its officers, or agents of the Western and Atlantic Railroad, entered upon and occupied the land, or any portion of it, which was set apart by the chief engineer of the road, and Reid and retained it for railroad purposes, then, from the time this deed was recorded there would be notice to all parties of the extent of the claim thus made under the deed.</p> <p>“I will state this again: The power of designating the ¡precise locality of the land that was to be conveyed by deed •was referred to the chief engineer of the road, and if he, in the honest discharge of his duty aud exercise of his judgment, did designate such portion of that tract of land as would answer the convenient and necessary purposes of said road as a right of way, and he did that by a survey or other means; if it was thus chosen, and the road placed on that right of way, or a portion of it, and the deed was recorded, from the date of its record, it would be notice to all the world of the amount of land then taken and set apart under the deed.</p> <p>“ These are questions of fact for you to determine under the law. See if the testimony shows that the chief engineer, acting under authority, designated a tract or parcel of land to be taken by the state under this deed for the purposes named therein — a right of way for the state road; if he did, to what extent did it go — where does it lie? Is the property that is involved in this controversy embraced in that tract or parcel of land thus designated by him ? If it is, and the conveyance made to complainant was made after the date of the record-of the deed to the state, the title of the state would prevail over hers; it would be good in the state.</p> <p>“If the'property that has been entered on, and is -in dispute, is not embraced in complainant’s deed at all, she could not recover; if it does embrace it, and the road had already taken possession of it, and the deed had been recorded before hers, as hereinbefore stated, the title of the state would be paramount to hers.</p> <p>“If you find that the land in dispute was not embraced in this Mithell deed to the state; that the land set apart under that deed did not extend to and embrace the property in dispute, but that complainant’s deed extends to and embraces it, then your verdict should be for her. If you find that the property set apart, designafed by the engineer for the slate road, did not extend to and embrace that in dispute, but that Mrs. Dougherty’s deed did embrace.it, then your verdict should be for complainant. It would be necessary, if you find for her, that you be particular and state what you find in your verdict; said premises should be described; you may designate the extent of the ground, beginning at the present building. If you see proper, you may make that.the beginning point, or you may adopt such form in your verdict as you think proper, so that you distinctly locate the northern line of defendant’s right of way and the southern boundary of Mrs. Dougherfy’s line. 11 you find for complainant, describe the premises and find that defendant be perpetually enjoined from encroaching on or occupying the same; if for defendant,.say we find for defendant.”</p> <p>Under this charge, the jury found for the defendant.</p> <p>The errors assigned are that the court erred in charging that the record of the defendant’s deed, in 1849, enabled it to prevail over defendant’s title. In charging that the survey made by Armes was a sufficient identification of the boundaries, and if the disputed track was within that survey, defendant’s title would prevail. In charging that land, instead of the usufruct, passed under the state’s deed; and excluding from the consideration of the jury the effect of complainant’s evidence, showing possession of and dominion over the property, aud acquiescence in the line claimed by her by the coterminous proprietors.</p>

<p>Principal and agent. Partnership. Before Judge Kiddoo. Decatur Superior Court. May Term, 1874.</p> <p>Por the facts of this case, see the decision.</p>

Trusts. Husband and wife. Marriage contract. Evidence. Vendor and purchaser. Heeds. Witness. Before Judge Herschee V. Johnson. Bibb Superior Court. October Term,1873. This is the third time this litigation has been before this court: See 42 Georgia Reports, 95, and 48 Ibid., 537.

<p>New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1873.</p> <p>The facts necessary to an understanding of this case are embraced in the decision.</p>

<p>Criminal law. Larceny after trust. Before Judge Schley. Chatham Superior Court. February Term, 1874.</p> <p>Anthony Carter”was indicted for the offense of larceny after a trust delegated, in this, that he “was entrusted by one John Mongin with four hundred and eighty melons of the value of ten cents each, the property of the said John Mongin, for the purpose of applying the same to the sole use and behoof of the said John Mongin.” And, “after having been entrusted as aforesaid, failed to apply thes article aforesaid as directed, but wrongfully, feloniously, fraudulently, and without the consent of the owner thereof, appropriated the same to his own use, without paying to the owner thereof the full value or market price thereof.”</p> <p>The evidence for the state disclosed that the melons were delivered by Mongin to the defendant to be sold for him, the proceeds to be paid to Mongin, less what the defendant charged for his services; that the melons were of the value charged and that the defendant paid but one dollar to Mongin.</p> <p>The evidence for the defendant is omitted as unnecessary tp an understanding of the decision. The jury found a verdict of guilty. The defendant moved for a new trial because the verdict was contrary to the law and the testimony. The motion was overruled and defendant excepted.</p>

<p>Vendor and purchaser. Mortgage. Judgment. Before Judge Hall. Newton Superior Court. September Term,' 1873.</p> <p>For the facts of this case, see the decision.</p>

Prescription. Judgment. Possession. Before Judge Underwood. February Adjourned Term, 1874. On April 9th, 1873, Marsh brought complaint against Griffin for lot of land one hundred and eighty-six, in the twelfth district and fourth section of said county'. The defendant pleaded the general issue and title by prescription.

<p>New trial. Charge of Court. Before Judge Hall. Pike Superior Court. April Term, 1874.</p> <p>For the facts, see the decision.</p>

Constitutional law. Pleadings. Before Judge Bartlett. Meriwether Superior Court. May Term, 1874. This case was before the court,in 48 Georgia Reports, 142. Any further report of it than is contained in the opinions is unnecessary.

Claim. Argument1. Evidence. Interrogatories. Witness. Debtor and creditor. Fraudulent conveyance. Charge of court. New trial. Before Judge McCutchisn. Bartow Superior Court. -September Adjourned Term, 1873.

Judgments. Statute of limitations. Before Judge Hopkins. Clayton Superior Court.- March Term, 1874. This case ivas submitted to the presiding judge without the intervention of a jury, upon the following facts: At the May term, 1864, of Clayton superior court Thomas Plambrick, as administrator upon the estate of Sarah Jones, deceased, recovered a judgment against James F. Johnson, J. H. Johnson and Thomas S. Crawford, for $1,675 00 principal, and $786 00 interest.

Statute of frauds. Criminal law. Settlement. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1874.

Judgments. Practice in the Superior Court. Statute of limitations. Before Judge James Johnson. Muscogee Superior Court. October Term, 1873. At the November term, 1873, of the superior court of Muscogee county, Harvey Mosely petitioned, in brief, as follows: On April 2d, 1861, he loaned to Mrs. Ann Sealy and John Sealy $2,187 50, taking their note therefor, payable on the first of the ensuing January.

<p>Garnishment. Principal and agent. Insurance. Debto'r and creditor. Before Judge Schley; Chatham Superior • Court. May Term, 1874.</p> <p>Meinhard Brothers & Company, Max Krauss & Company, Lilienthal & Kohn, and Symons & Company, defendants in error, were creditors of one Philip A. Zoller, who had sustained a loss by fire of certain goods which were covered, by a policy of insurance issued to him by the Franklin Fire Insurance Company of Philadelphia, through their agents in Savannah, Purse & Thomas. On March 14th, 1872, Meinhard Brothers & Company, and Max Krauss & Company, commenced suit against Zoller, in the city court of Savannah, and, on the same day, had summons of garnishmentserved upon said Purse & Thomas as the agents of said insurance company, requiring them to appear at the May term, 1872, of the said city court, to answer what they "were indebted to said Zoller ; at the said May term, they obtained judgment against said Zoller for the amounts of their claims, and subsequently, during said term, the said garnishees answered denying any indebtedness to said Zoller, and their answer was never traversed or in any way objected to. After the adjournment of said court, said creditors, on the 27th day of June, 1872, without giving any new bond or making any new affidavit, caused a second summons of garnishment to be served on said Purse & Thomas by which they were required to answer at the following July term "of said court, what they 'were indebted to said Zoller, at the time of said summons, 27th of June, 1872, and between that date and the time of making return thereto. On the 17th day of August, 1872, said garnishees answered said summons, admitting at that time, 17th August. 1872, an indebtedness to said Zoller of $800 00, which amount was' received by them from the Franklin Fire Insurance Company of Philadelpia, as the loss by said Zoller covered by said policy of insurance.</p> <p>Lilienthal & Kohn, defendants in error, obtained judgment against said Zoller at the same May’term and on the same day as said Meinhard Brothers & Company, and Max Krauss & Company, and pursued the same course with like results as hereinbefore stated, with this exception only, that they did not commence suit until the 18th day of April, 1872, or sue out any summons of garnishment prior to that time.</p> <p>The remaining defendants in error, Symons & Company, commenced suit against said Zoller, in a magistrate’s court, on the ,6th clay of April, 1872, and obtained judgment on the 27th day of the same month, having, at the commencement of said suit, garnished said Purse & Thomas, and subsequently obtained judgment against them as garnishees, they having made a return on the 17th day of August, similar to that made in the cases before stated. At the November term, 1872, of the city court of Savannah, the judge of said court passed the following order:</p> <p>“ It appearing to the court that the sum of $800 00 has been returned by Purse & Thomas, as agents of the Franldiu Fire Insurance Company of Philadelphia, garnishees, as in their nands subject to the order of the court; and it further appearing that there are various parties besides those in this court, who claim certain interests in and liens upon said fund, which parties are represented by Thomas R. Mills, Jr., and R. R. Richards, attorneys of this court; and it being further represented that all parties in interest are auxious and willing that all claims, and liens, and priorities existing against, or arising out of, said sum of money, or which any one or áll of said parties may have, should be determined by tin's court in as full a manner as if it were a court of equity, sitting for the purpose of distributing said sum of money according to the priorities established by law. It is ordered that said parties, so represented by said attorneys, Thomas R. Mills, Jr., and R. R. Richards, be, and they are hereby permitted to file in this court a statement of their respective cases, after which they shall have all such rights in this court as they might or could' have had had they regularly claimed said money by a proceeding instituted for that purpose. The statements of said cases shall not, however, be conclusive upon those parties who have brought said sum of money into court, but they, or any of them, shall have .the right to traverse the truth of the facts alleged therein. (Signed) W. S. Chisholm, Judge.”</p> <p>Whereupon said Symons & Company filed a statement of their case in substance as heretofore set forth, and plaintiff in error also filed the statement of his claim in substance as follows: That said Zoller, prior to sustaining said loss covered by said policy of insurance, was- indebted to him in the sum' of $326 00, and upon applying for payment, after said loss was sustained, said Zoller offered to pay him out of the money which would accrue out of said policy, which was then in the hands of T. R. Mills, Jr., andS. W. Goode, attorneys at faw, for collection, against said insurance company; that said Zoller, in consideration of his said indebtednes and a forbearance on plaintiff in error’s part to sue him, delivered to him on the 27th day of March, 3872, the following order or draft:</p> <p>“Messrs Mills ancl Goode will please pay to Thomas Daniels the sum of three hundred ancl twenty-six ($326 00) dollars out of the money due me on policy of insurance given by the Franklin Insurance Company of Philadelphia, through their agents, Purse & Thomas, at Savannah, Georgia.</p> <p>(Signed) - P. A. Zoller.</p> <p>“ 27th March, 1872.”</p> <p>“Accepted, and payable when we collect the money on said policy. (Signed) “ T. R. Mills, Jr.,</p> <p>“ Samuel W. Goode,</p> <p>“per Goode.”</p> <p>That on the 28th day of March, 1872, the following paper, as additional evidence of' plaintiff in error’s interest in said policy, was delivered to him by said Zoller:</p> <p>“ $326 00. To T. R. Mills, Jr., and S. 'W. Goode. In consideration of a forbearance to sue, I hereby transfer and assign to Mr. Thomas Daniels an interest to the extent of $326 00 in my policy in the Franklin Fire Insurance Company, said policy to be collected by my attorneys, and that amount to be paid to him out of proceeds.</p> <p>(Signed) “ P. A. Zoller.”</p> <p>“ Accepted, payable when collected.</p> <p>(Signed) ’ “T. R. Mills, Jr.,</p> <p>“S. W. Goode.”</p> <p>That in addition to the said orders or drafts, the following arrangement was agreed upon between said Zoller and his said attorneys, and plaintiff in error, on said 27th day of March, 1872, all being present; that on and after date plaintiff in error had an interest to the extent of $326 00 in said policy of insurance, and said attorneys were to hold said policy and collect any amount due or to be due thereon, for plaintiff in error’s benefit to the extent of his said interest, and for the purpose of first paying said accepted orders or drafts, and notice of plaintiff in error’s said interest in said policy was, on the same day, given to said insurance company through Miéir said agents, Purse & Thomas.</p> <p>There, being no question of fact in dispute the court ordered said fund to be distributed among the defendants in error, to the exclusion of plaintiff in error. The latter petitioned for the writ of certiorari which was ordered to issue. Afterwards, on the final hearing, the decision of the city court was affirmed except in one unimportant particular. To which ruling plaintiff in error excepted. •</p>

Criminal law. Witness. Evidence. Charge of Court. Drunkenness. Before Judge McCutchen. Bartow Superior Court. September Adjourned Term, 1873. James L. Pierce was indicted for the offense of using obscene and vulgar language in the presence of Lucinthia E. Jones, a female, on March 31st, 1871. He pleaded not guilty. There was no question made by the evidence except as to the fact of the use of the language charged.

<p>Ejectment. Prescription. Statute of limitation. Administrators and executors. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1873.</p> <p>Reported in the opinions.</p>

Injunction. Party. Specific performance. Before Judge Clark. Sumter county. At Chambers. September 21st, 1874. The facts of this case are sufficiently reported in the' above head-note.

Indorsement. Judgment. 'New trial. Before Judge Knight. Dawson Superior Court. April Term, 1864. Silas B. Palmour, for the use of Reuben H. Moss, brought complaint against John Palmour upon the following indorsement : “I hereby sell and transfer the within note, and the judgment and_/?. fa. predicated thereon, sued in Gilmer superior court, to be personally liable to S. B. Palmour if the defendants prove insolvent. I am also to pay the attorney’s fees.

Railroads. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873. Suit was instituted by Paramore in the justice court of the seven hundred and seventy-third district against the Western Railroad Company for $89 28, damages done to a lot of liogs in the transportation of the same to the city of Columbus. The case was carried by appeal to the superior court.

<p>1. When a suit was brought against A and B, administrators of C, and against D as security for C, on a promissory note made by C, as principal, and D as security, and a verdict taken for the plaintiff for the amount due on the note, but the judgment was entered up simply against the defendants, and contained no words providing that it should be levied on the goods and chattels, lands, etc., in the hands of A and B, as administrators, etc., and execution issüed against A and B, as administrators simply, and against D as security :</p> <p>Meld, that the judgment was not void, but only irregular, and might be so amended as to conform, to the declaration and verdict.</p> <p>2. A bill in equity will not, in this state, lie to enjoin an execution on the ground that the judgment and execution do not follow the declaration and verdict. The remedy is at law by affidavit of illegality, or by motion in open court to amend.</p> <p>3. No second affidavit of illegality will lie for a defect or irregularity in a judgment and execution, unless it appears that such defect was unknown to the affiant at the time of the filing of the first affidavit, and if the sheriff refuses to receive such second affidavit, equity will not interfere to restrain the levy of the execution.</p>

<p>1. The act of March 2d, 1874, pamphlet page 90, in these words, to-wit: “Be'it enacted, that the law passed by the general assembly and approved December 13th, 1871, providing that compensation should be made to ordinaries for services in relation to county business, and to sheriffs and clerks of the superior court for services in relation to which existing laws provide no adequate compensation at all, etc., etc., be and the same is hereby repealed,” indicates an intention in the general assembly to repeal all laws authorizing such compensation, and the act of 1862, Irwin’s Code, section 8645, making substantially the same provisions, but providing a different mode for ascertaining such compensation, is not revived by such act of March 2d, 1874.</p> <p>2. Persons performing any service for the county, which in its nature creates a debt against the county, have the same method of seeking compensation as have other creditors of a county, to-wit: by application to the ordinary or county commissioners, or by suit at law.</p>

<p>1. Where one buys cotton, stored in a certain house, which he is to remove, and in so doing gets other cotton belonging to the seller stored in another house, the owner in suing for such last mentioned cotton is not compelled to bring an action in tort, but may sue in assumpsit.</p> <p>2. The measure of recovery in such an action is the value of the cotton at the time it was taken by the defendant, with interest.</p> <p>3. If the claim sued for be solely for cotton taken from a certain house, and the testimony relied on for a recovery be confined to that, and the jury be exclusively restricted to that in considering their verdict, then a judgment in favor of plaintiffs vs. defendant, rendered in another action for cotton obtained at another and different place, is irrelevant testimony.</p> <p>4. If it be not clear that the cotton sued for, or any part thereof, is not covered by such judgment, then the same should be admitted and the question of former recovery left to the jury.</p> <p>5. To make the sayings of an agent admissible in.evidence against the principal, it should appear that they were made whilst in the prosecution of the enterprise to which they refer.</p>

Railroads. Trover. Prescription. Evidence., Principal and agent. Corporations. Evidence. Practice in the Superior Court. Before Henry Williams, Esq., Judge pro hao vice. Bibb Superior Court. October Term, 1873. This was an action of trover for the recovery of one hundred and fourteen and one-fourth tons of railroad iron, known as the T rail, brought by the Atlantic and Gulf Railroad Company vs. the Southwestern Railroad Company.

Homestead. Before Judge Hopkins. Fulton Superior Court. April Term, 1874. Bettis, by his petition for certiorari, made the following ease: In February, 1874, he applied to the ordinary of Fulton county for an exemption of personalty aud a homestead in realty. The latter he prayed might be set apart in a house and lot on Decatur street, in the city of Atlanta, and in certain other property. The surveyor appointed valued the said house and lot at $.2,000 00 in specie.

<p>Injunction. Municipal corporations. Tax. Costs. Illegality. Before Judge James Johnson. Chatham county. At chambers, July 1st, 1874.</p> <p>S. P, Goodwin and others, citizens of Savannah, filed their bill against the Mayor and Aldermen of the city of Savannah, a municipal corporation, to the May term, 1874, of Chatham superior court, in which they alleged that the said Goodwin, and other complainants named, were engaged in the business of draying, and used in their said business certain drays and vehicles drawn by animal power. That Morel & Mercer were engaged in the business of buying and selling grain and produce. That M. J. Doyle was a grocer; and J. J. Dale & Company were engaged in the lumber business; and that all said complainants’ last named used vehicles drawn by animal power in their said several branches of business, as incident and necessary thereto, but not as a distinct and separate occupation.</p> <p>That the said the Mayor and Aldermen of the city of Savannah, by a certain ordinance passed in council December 31st, 1873, and commonly known ás an ordinance to assess and levy taxes and raise revenue for the city of Savannah, for the year 1874, did, among other things, declare, in the third section thereof, that in addition to the ad valorem, tax upon all real and personal property in the city of Savannah, certain specific taxes should be paid by every person using and employing in his, her or their business, any dray, truck, cart or wagon, cab, hack, buggy, omnibus, break-wagon, or any other vehicle for the transportation of passengers awd baggage, or for the transportation of goods, wares and merchandise, to-wit: $16 00 for each-one-horse dray or truck ; $24 00 for each two-horse dray or truck, and so on.</p> <p>That on February 7th, 1874, said S. P. Goodwin and others filed their bill to the May term, 1874, of Chatham superior court, and prayed for an injunction against the collection or enforcement of said taxes, upon the ground that they were taxes upon the property of complainants, and were not ad valorem, as required by the constitution of Georgia. That the judge of said court did thereupon grant the injunction prayed for; that no effort liad been made by said city to dissolve the same, and that said action, and the subsequent course of said defendant had, in effect, fully admitted the unconstitutionality of said taxes.</p> <p>That on March 24th, 1874, the said defendant did pass another ordinance, entitled an ordinance t* amend the ordinance hereinbefore mentioned, and did provide that all that portion of said ordinance which provides specific taxes on drays, wagons, and other vehicles, be repealed and the following substituted therefor: “In addition to the ad valorem tax on property already mentioned in said ordinance, the following taxes on business and property shall be levied and collected : Each person engaged in the businéss of transporting goods, etc., or baggage, or passengers and baggage, or in loading or unloading vessels by horse power (except such persons as are already taxed on said business in said ordinance) shall pay a tax on said business; said tax to be due and paid yearly, and to be graduated according to the number of drays, wagons, etc., used in said business;” that said ordinance then provided a specific tax tobe paid by each person using said vehicles, ranging from $15 00 for one vehicle to $1,000 00 for not more than fifty vehicles, said tax amounting to from $15 00 to $24 00 upon each vehicle used, irrespective of the value of the same.</p> <p>That said ordinance also required a tax of two and one-quarter per centum ad valorem on the value of each animal and vehicle so used; that for each vehicle a badge should also be taken out, at the expense of complainants, and placed in a conspicuous place on-each vehicle, which should be conclusive evidence that said tax had been paid; that a failure so to affix said badge to any vehicle should be punished before the police court by fine not exceeding $10 00, and by not more than ten days in jail, provided said tax had been paid ; if not, the fine to be the amount of said specific tax and costs, or not exceeding thirty days in jail.</p> <p>That by said ordinance a specific tax was already impose^ upon the several branches of business of the said complainants Morel & Mercer, M. J. Doyle and J. J. Dale & Company ; that a tax of one per centum was levied on furniture, stock in trade, and other species of personal property, and one-fourth of one per centum upon the value of bonds, and other species of personal property specified in said ordinance, while two and one-quarter per centum was levied upon the stock in trade and personal property of complainants. That a tax of one per centum was also levied upon income from business. That the constitution-of Georgia required taxation on property to be ad valorem only, and' uniform upon all species of property taxed.</p> <p>That said taxes were unconstitutional and onerous, amounting, to some six per centum upon the value of complainants’ property, and almost prohibitory in their character.</p> <p>That the returns were required to be made in the early portion of the year, when business was most active, and the largest number of animals and vehicles in use; whereas, in spring and summer, a large proportion of them were unemployed and useless; that said so-called specific tax on business was in no just sense a tax upon occupation, but only an attempt to enforce the original specific tax upon the property of complainants under a change of name; that said taxes were not ad valorem or uniform, and that even if said taxes were specific taxes upon the business of complainants, said defendant had no power to graduate said taxes as provided by said amendatory ordinance.</p> <p>' That said defendant was proceeding to enforce the collection of said illegal assessments against- all of said complainants; whereupon complainants averred that they were otherwise wholly remediless, and prayed for an injunction.</p> <p>The defendant, in its answer, filed May 4th, 1874, averred in substance that it admitted that the complainants were engaged in their several branches of business, the passage of the ordinance of December 31st, 1873, the filing of the original bill by S. P. Goodwin and others, and the granting of the injunction asked ; it also admitted the repeal of said ordinance, without any effort on the part of defendant to dissolve said injunction, or to oppose said bill, but protested that it did not thereby admit said repealed ordinance to be illegal.</p> <p>Defendant also admitted the passage of the amendatory ordinance of March 24th, 1874, but submitted that by the statutes of Georgia it was authorized to impose taxes on those who transact, or offer to transact, business in said city, and that said taxes imposed on complainants by said amendatory ordinance were legal.</p> <p>That it had, since the filing of said bill, repealed so much of said ordinance as imposed a tax of two and one-quarter per centum on the value of the animals and vehicles used by complainants, and that such portion of said ordinance was no longer in force.</p> <p>Defendant further submitted that such portions of said bill as referred to the wisdom and expediency of said tax, were matters exclusively for the consideration of the Mayor and Aldermen of Savannah.</p> <p>After argument, the presiding judge refused to grant the ■injunction prayed for, and thereupon the complainants excepted.</p>

<p>(Tkippe, Judge, was providentially prevented from presiding in this ease.)</p> <p>1. A marriage settlement made without fraud, and duly recorded, in which the settler covenants to stand seized to the use of the intended wife and children of the marriage, and two other of his children by a former wife, of a sum of money which he covenants to invest for the uses declared, and for the faithful performance of which he pledges and mortgages his whole estate, then in his possession or thereafter to be acquired, is a good settlement against the husband, and if at the time, perfectly solvent, including the trust then assumed by him as a debt, it is good against creditors present and future. Marriage is a valuable consideration, and the^ien thus created on property, in possession of the husband, duly recorded, is notice to all subsequent creditors, as to such property. But as' to the property thereafter to be acquired, the lien is upon a mere possibility, and is not good against either present or future creditors.</p> <p>2. When equity enforces a trust in a marriage settlement, in favor of those coming within the scope of the marriage consideration, it will enforce it in full in favor of all the beneficiaries, whether they be wilhin the scope of the consideration, or be only volunteers.</p> <p>3. A marriage settlement, however good against the settler and creditors, or even subsequent purchasers, cannot divest legal liens actually acquired, such as judgments and mortgages.</p> <p>4. That a guardian is in debt to his wards, as appears by his returns to the ordinary, does not give the wards a lien on his estate, unless the fund'can be traced into some specific thing, or can itself be identified ; nor does the fact that the guardian’s whole estate is before the court, in the hands of a receiver, aller the rule. And this doctrine, that trust money does not create a lien, unless it can be traced, applies to all trusts of money, or of property turned into money. To give the cestui que trust a lien, the money must be traceable, or be capable of identification.</p> <p>5. A laborer, or mechanic, who, as the employee of another mechanic, works upon a building, and accepts as a discharge of his debt, from his employer, the’ promissory note of the owner of the building, has no lien as a mechanic upon the building.</p> <p>6. Whether one, who makes at the time of his marriage a settlement upon his wife, thereby,disables himself from paying his existing debts, is a question of fact, and,if the evidence be conflicting, and there be sufficient to justify the finding, this court will not disturb it.</p> <p>7. When by consent of parties, the whole of a case, both as to the law and the facts, is submitted to the judge, this court will treat the judgment of the court, as to the facts, as though- it were the verdict of a jury.</p>

Municipal corporations. Streets. Road's. Fines. Before Judge McCutchen. Whitfield Superior Court. April Term, 3874. James N. B. Cook brought ease against thé Mayor and Council’of the city of Dalton for $10,000 00 damages, alleged to have been sustained by him on account of the illegal arrest and imprisonment of his son, John V. Cobb, a minor.

Criminal law. Manslaughter. New trial. Jury. Before Judge Clark. Sumter Superior Court, April Term, 1874 Primus Edwards was placed on trial for the offense of murder alleged to have been committed upon the person of Berry Adams, on March 31st, 1874. The defendant pleaded not guilty. The evidence made this case : The defendant and the deceased were laborers upon the same plantation. The defendant lived at the house of one Bunk Lamar.

<p>Machinist’s lien. Practice in the Superior Court. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873.</p> <p>Loudon, as assignee of the Empire Cotton Seed Huller ánd Oil Company, moved to quash an execution against said company in favor of the Columbus Iron Works Company, based upon the foreclosure of a machinist’s lien. This foreclosure was in the manner of foreclosing liens ¿gainst steamboats. The plaintiff moved to dismiss such motion upon the ground that the defendant had filed no affidavit contesting the amount or justice of the claim, or the existence of the lien. The court overruled the last motion and sustained the first. To both of which rulings the plaintiff excepted.</p>

Husband and wife. Mortgage. Estoppel. Before Judge ’ Clark. Sumter Superior Court. April Term, 1874. On January 15th, 1868, William Mize and his wife, Rebecca J. Mize, executed to T. J. Dunbar & Company, a mortgage upon a lot of land in Sumter county, to secure the payment of a promissory note made by said William Mize, on or about December 31st, 1867, due one day after date, payable to T. J. Dunbar & Company, for $809 65.

Equity. Injunction. Debtor and creditor. Receiver. Parties. Before Judge Hill. Twiggs county. At Chambers. July 25th, 1874. Flannegan, Abell & Company, for themselves and other creditors that might become parties thereto, filed their bill against Vickers & Hughes and Benjamin H. Hill, alleging, in brief, as follows : Vickers & Hughes were planters on a large scale, owning and controlling several plantations, both as partners and as individuals.

Attachment. Amendment. ■ Insurance. Pleadings. Joint and several liabilities. Bill of exceptions. Practice in the Supreme Court. Production of papers. Practice in the Superior Court. Before Judge Kiedoo.' Dougherty Superior Court. April Adjourned Term, 1874. This is the second time this casa has been before the Supreme Court: See 46th Georgia Reports, 652. Only such additional facts are here stated as are necessary to an understanding of the opinion.

<p>The defendant was indicted prior to June, 1873, in the superior court of Fulton county, for keeping open a tippling house on the 4th day of May, 1873, the same being the Sabbath. He gave bond for his appearance to answer the charge. Pending that indictment he was prosecuted in the city court of Atlanta for the same offense, charged to have been committed on the 8th day of June, 1873, and on this he was regularly tried and convicted by a jury and fined. When called for trial on the indictment, he pleaded this conviction with all necessary averments, alleging that both proceedings were for the same act and offense, and that on the trial in the city court, evidence was introduced by the state as to his guilt on a day prior to the day mentioned in the indictment. On the hearing of a motion to strike the plea, the above facts were admitted by the state to be true :</p> <p>Held, that the motion should have been overruled and the plea sustained.</p>

Ejectment. Execution. Judicial sale. Deed. Possession. Before Judge Kiddoo. Randolph ' Superior Court. May Term, 1874. Jones brought ejectment against Easley and others, tenants in possession, for lot of laud number six, in tlie sixth district of Randolph county. The defendants pleaded the general issue. The plaintiff relied upon a sheriff's deed made under a sale for taxes, and prior possession.

Contracts. Action. Newtrial. Before Judge Bartlett. Greene Superior Court. March Term, 1874. It is unnecessary to the elucidation of any principle in this case to state facts additional to those embraced in the above head-notes.

Laws. Legitimation. Presumption. Estoppel. Deeds.Before Judge Hopkins. Fulton Superior Court. October Term, 1873. Amanda E. Wood instituted proceedings against Martha F. Thrower, as tenant in common with her, for the partition of a lot of land in the county of Fulton, claiming a title to one-sixth undivided interest in the same.

<p>1. A verdict in a claim case finding the property levied on not subject, is not illegal because the claimant did not show title to but one undivided half of the land when the plaintiff neither showed the possession of the defendant in execution or any title in him, except as to the one-half interest, and which claimant pioved had been previously sold at a tax sale and his title under it.</p> <p>2. Under the charter and ordinances of the city of Rome in 1863, an advertisement by the marshal of a sale under a tax fi fa. for thirty days was sufficient.</p>

Criminal law. Constitutional law. Before Judge Rice. White Superior Court. May Term, 1874. It is unnecessary to an understanding of this decision, to report any facts additional to those stated in the above head-notes.

Claim. Execution. Judgment. Before Judge James Johnson. Chattahoochee' Superior Court. March Term, 1874. On March 17th, 1869, an execution in favor of Robert C„ Patterson against George H. Kelly et al., for $95 00 principal, $15 50 interest and costs, based on a judgment rendered by the superior court of Chattahoochee county, on March 29th, 1861, was levied upon certain lands as the property of Kelly. A claim was interposed thereto by William Bagley.

Homestead. Novation. Promissory notes. Before Judge McCutchen. Bartow Superior Court. December Adjourned Term, 1873. An execution in favor of Susan Gaines against Wade H, Wofford, was levied upon certain realty which was claimed by Nancy S. Wofford. Upon the trial of the issue thus formed the following facts appeared r In the year 1850, Wade H. Wofford purchased the land iu controversy from James Gaines, giving two negotiable notes therefor, each in the sum of $500 00.

<p>1. In the case of an injury to an employee of a railroad company, caused by the running of a train, whilst the burden is on the company to prove that it used proper care and diligence, it is necessary for the plaintiff to show that the injury was caused without fault or negligence on his part.</p> <p>2. The judge before whom the case was tried being dissatisfied with the verdict, and he having granted a new trial, this court cannot say that the evidence was such as to show that there was an" abuse of discretion by the court below, and we are of opinion that there should be another investigation of the case.</p>

<p>S. Where, on a motion to set aside a judgment on the ground that the defendant had never been served with process, and had not appeared of acknowledged service, it appeared in evidence on the trial o'f an issue formed in the matter, that there Was a due return by the sheriff of personal service:</p> <p>Held, that it was error in the court to refuse to charge the jury, that under the law it required the strongest evidence to overcome the effect of the sheriff’s entry, and to charge in lieu thereof that the sheriff’s entry was prima facie evidence, but like other presumptions it might be rebutted by proof.</p> <p>2. Where there was a confession of judgment by an attorney of the court, whose name was marked on the bench docket, and seven years had elapsed, and the attorney was dead, it should require the strongest testimony to show want of authority of the attorney, and even then it ■ ought to appear by the oath of the defendant that he had a good defense, and what that defense was.</p>

Promissory notes. Indorsers. Protest. Before Judge Hopkins. Fulton Superior Court. April Term, 1874. Hoyt & Jones, “lately bankers doing business in the city of Atlanta/7 brought assumpsit against Salmons & Alexander, as indorsers upon a note made by Chapley B. 'Wellborn, dated October 21st, 1871, and due at thirty days, for $500, payable at “ Hoyt & Jones.77 Plaintiffs, in their declaration, also claimed $3 25 for noting and protesting.

Ejectment. New trial. Newly discovered evidence. Before Judge Hopkins. DeKalb Superior Court. March Term, 1874. This case was a common law action of ejectment in the name of Doe, upon the demises of William Ezzard, as executor of Merrell Collier, deceased, and of Eli J. Hulsey, against Roe, and Warren J. Clark, tenant in possession, for a portion of a lot of land in DeKalb county. The suit was commenced on March -4th, 1872.

Railroads. Contracts. Jurisdiction. Pleadings. Before Judge Bartlett. Greene Superior Court. March Term, 1873. John C. Carmichael brought assumpsit against the Georgia Railroad and Banking Company for $627 90, besides interest. The defendant pleaded the genei’al issue.

<p>Constitutional law. Banks. Stockholders. Before Judge Gibson. Richmond. Superior Court. April Term, 1873.</p> <p>It is only necessary to report the first of the above stated cases. The second is similar to it in all material respects.</p> <p>Branch brought assumpsit against Baker, a stockholder in tbs Mechanics’ Bank, to recover the amount due on certain bills or notes issued by the said bank, and which came into the possession of plaintiff in due course of trade, and for a valuable consideration, making the sum of $36,680 00 besides interest; and for which judgment had been rendered in favor of said plaintiff against said Mechanics’ Bank at a previous term of said court, and executions issued thereon, which had been -returned with the entry of nulla bona thereon, previous to the commencement of said suit.</p> <p>The defendant pleaded as follows:</p> <p>1st. That the evidences of indebtedness, to-wit: the bank bills on which said suit is predicated, and in said plaintiff’s declaration named, were given, used, issued, and put into circulation by the said Mechanics’ Bank during the late rebellion against the United States, to-wit: on the 22d day of October, 1861, with the intention and for the'purpose of aiding and encouraging said rebellion.</p> <p>2d. That said bills were last issued and put into circulation by the said Mechanics’ Bank to the late so-called Confederate States government, through its officers and agents, during the late rebellion against the United States, to-wit: 'on the 22d day of October, 1861, and on divers other days during the same year’, as a loan to said Confederate States, and that it was the purpose and intention of the said Confederate States government, and of the said officers and agents in procuring said loan and receiving said bills, to aid and encourage said rebellion, and that fact was known to the said Mechanics’ Bank.</p> <p>3d. That at the time said bills were last issued by said bank, the said bank was amply able to redeem and pay the same, and the said plaintiff, or those under whom he claims, failed, and neglected to demand payment thereof, with full knowledge that the means of said bank were constantly diminishing, until said bank failed and became insolvent.</p> <p>4th. That said plaintiff is not a bona fide holder for value of said bills, and did not receive the same in due course of trade, nor while said bills were circulating as money, but that he bought the same on speculation, at a very low rate, to-wit: at not more than five cents on the dollar, and after the said bills had ceased to circulate as money, and said bank had ceased to do business.</p> <p>5th. That the capital stock of said bank is five thousand shares, of the nominal value of $100 00 each, of which this defendant owns three hundred and eight shares, and that all the bank bills of said bank issued and unredeemed, amount to $1,500,000 00 or less, and that all of said bills were issued before the first day of June, 1865, and none of them on or since that day, and that against said bank no action had been brought on any of said bills prior to the first day of January, 1870, except on $500,000 00 thereof, or a less amount.</p> <p>6th. That of the total amount of outstanding unredeemed bills of said bank, not less than $1,375,000 00 were issued to the Confederate States and the state of Georgia, during the late civil war, for the purpose, and with the intention and with the knowledge that they would be so used, to aid and encourage the rebellion then being made against the United States, and have not been re-issued since said illegal issue.</p> <p>7th. That before the commencement of said suit, to-wit: on the 18th day of December, 1869, and' on divers other days before the 31st day of December, 1869, this defendant paid and redeemed bills of said Mechanics’ Bank, then outstanding and unredeemed, to the amount of $58,000 00.</p> <p>The plaintiff demurred to the first plea of defendant, on the following grounds :</p> <p>1st. The clause of the constitution of Georgia, section 17, paragraph 2d, on which the plea is based, does not embrace bank bills or notes;</p> <p>2d. The plea does not allege that any contract was made between the plaintiff and defendant, or any other parties, with the intention and for the purpose of aiding and encouraging said rebellion ; nor that it was the purpose of any one of said parties to said contract to aid and encourage the said rebellion, such purpose being made known to the other party.</p> <p>3d. Said clause of the constitution of Georgia is void, being in conflict with the constitution of the United States, as it impairs the obligation of these contracts.</p> <p>And to the second plea on the same grounds. And to the third, on the ground that it does not allege that the plaintiff was the holder of said notes or bills, at any time when said bank was able to pay and redeem the same.</p> <p>And to the fourth, on the ground that it is not a proper defeuse to said action, plaintiff being a dona fide holder of said bank notes or bills, for value, and entitled to recover the full amount named on the face of said notes or bills.</p> <p>And to the sixth, on the grounds of demurrer set forth to the first and second pleas.</p> <p>And to the seventh, on the following grounds :</p> <p>1st. Said defendant has not redeemed the said amount of bills named in his plea, at their value when first issued by said bank, or at the value named on the face of said hills or notes; but that said defendant bought them at a depreciated rate since said bank became insolvent, to-wit: at not more than ten cents on the dollar, and after said bills had ceased to circulate as money, and said bank had ceased to do business.</p> <p>2d. Said defendant is bound by the charter of said bank to redeem or pay the full value of said bills in pi’oportion to his number of shares as a stockholder in said bank, as said value is stated on the face of said bills, at the time they were first issued by said bank.</p> <p>3d. Upon the grounds of demurrer set forth to the 1st and 2d pleas of said defendant.</p> <p>4th. Upon the ground that this suit is founded on a judgment against Mechanics’ Bank, rendered in said superior court of Richmond county, at the......term......of said court; and the said defendant cannot set up as a defense to this suit any plea that would have been good as a defense to said judgment against said Mechanics’ Bank, or that would collaterally attack or invalidate said judgment.</p> <p>The court overruled the demurrers to defendant’s pleas, except that to the fourth. To which ruling plaintiff excepted.</p> <p>In the further progress of the cause, the following agreement of counsel as to the facts of the case, was submitted to the jury as evidence :</p> <p>“In the suits in Richmond superior court, of John P. Branch ’ against sundry parties (separate suits,) as stockholders of the Mechanics’ Bank, in which the undersigned aré opposing counsel, it is agreed that the following facts shall be considered in evidence — subject to objections to relevancy and legality- — and subject also to be shown incorrect by either party by evidence.</p> <p>“ 1st. That the Mechanics’ Bank was incorporated, and issued notes for circulation.</p> <p>“ 2d. That the several defendants in said suits are stockholders to the amounts stated in the several declarations.</p> <p>“ 3d. That the plaintiff has the bills named in his suits, and had them at the commencement of his suits, and their pi’oduction in court is dispensed with.</p> <p>“4th. That the defendants who have pleaded payment of bills, have the amount of bills stated in their pleas, and their production in court is dispensed with — but the time when they obtained them is subject to proof.</p> <p>“ 5th. That the total circulation unredeemed by the bank, but including what has been redeemed by stockholders, is $1,500,000 00; of which the sum of $675,000 00 was paid out by the bank to the late Confederate government as a loan, and the sum of $700,000 00 was in like manner paid out to the state of Georgia as a loan; all which loans were made between October 1st, 1861, and December 31st, 1862.</p> <p>“ 6th. That the capital stock of. the bank is $500,000 00.</p> <p>“7th. That the judgments against the Mechanics’ Bank amount to $97,483 00, all on bills. That there are in suit in the federal court, bills amounting to $13,000 00, and in the city court of Augusta, bills to the amount of $1,000 00. That there are now pending in Richmond superior court against said bank, on bills, the following suits: S. D. Heard, to the amount of $38,025 00; William Dougherty, to the amount of $22,181 00; Thomas P. Branch, to the amount of $96,-000 00; John P. Branch, to the amount of $50,000 00.</p> <p>“That all the above suits were commenced before January 1st, 1870; besides which were commenced the following before January 1st, 1870, and have since that time been dismissed for want of prosecution : W. L. High, (two suits,) for $1,168 00; M. G. Dobbins, for $200,000 00;' W. M. & R. J. Lowry, for $10,000 00; A. D. Cothran, for $2,295 00; Daniel Miller & Company, for $4,161 00; Williarii Hazlehurst, for $22,180 00. Besides which no suits against said bank are pending.</p> <p>“ 8th. That said bank suspended specie payment in December, 1860, and has never since resumed payment; and since the close of the late war has kept no place for banking business, and lias ceased ever since that time to do business as a bank; and that its bills have not circulated as money in ordinary business transactions since the war.</p> <p>“9th. That plaintiff received his said bills since the war, and before the adoption of the present constitution, in the due course of business, and that he paid for them various prices varying from five to ten cents on the dollar.</p> <p>“ 10th. That previous to the commencement of these suits against the several stockholders, plaintiff had obtained judgment on the bills sued on against the Mechanics’ Bank, and-that execution had issued thereon and had been returned by the sheriff of Richmond county, nulla bona.”</p> <p>It was shown by evidence on the part of defendant that he had redeemed, bona fide, by purchase at from six to twelve cents on the dollar, bills of said bank previously unredeemed, to the amount of $95,802 00, of which the sum of $68,802 were purchased before the 31st of December, 1869, and the remainder since the commencement of this suit.</p> <p>The plaintiff’s counsel requested the court to charge the jury: _</p> <p>_ 1st. That under the charter of the Mechanics’ Bank, the stockholders, by the terms of said charter, are not sureties and only liable ultimately, but that they are primary debtors with the bank, and primarily liable to the billholders.</p> <p>2d. That it does not matter what the holders of the bills paid for them, they will not be restricted in their recovery to that price, but are entitled to the full amount expressed upon the face of the bills; that the price paid for the bills can by no means affect the recovery, and the mere fact that the bills in this case were bought at a low rate, to-wit: at five to ten cents on the dollar, would not affect the right of the plaintiff to the amount expressed upon the face of said bills.</p> <p>3d. That a stockholder of the Mechanics’ Bank cannot set up as a defense to a suit by a bona fide. holder for value of notes of the bank, and who holds a judgment against said bank, the amount of the notes redeemed by him, but said plaintiff is entitled to recover the full value'of the face of the notes which he holds.</p> <p>4tb. That even if a stockholder might set off against the suit of a bona fide holder of the notes of the Mechanics’ Bank, the amount of the notes of.said bank redeemed by him, when it appears from the evidence that said stockholder bought said bills for less than the value expressed upon their faces, he will be restricted to the amount paid by him for said bills or notes.</p> <p>5th. That each stockholder of 'the Mechanics’ Bank is liable to the bona fide holder for value of the bills or notes of said bank, for the full value expressed on the face of said bills without reference to the amount of the bills of said bank, which said stockholder may hold, no matter how he became possessed of them.</p> <p>6th. That the clause of constitution, section 17th, paragraph 2d, is void, being in conflict with the constitution of the United States, because it impairs the obligation of these contracts.</p> <p>7th. That said clause does not embrace bank bills or notes.</p> <p>8th. That the Confederate government was an organized government; and that it was, to a certain extent, a defacto government.</p> <p>9th. That plaintiff is presumed tobe a bona fide holder of the notes in Siis hands, and that the clause in said constitution of Georgia does not apply to said notes, unless he was a party to such illegal contracts mentioned in said clause.</p> <p>10th. That said clause did not embrace notes issued before the rebellion, nor any notes, unless the jury find that they were made, or some of them, by either or both parties, with the intention and for the purpose of aiding and encouraging the rebellion, and so known to the other party; or first, that there was such illegal principal contract made during the rebellion ; and then, second, that the notes sued on, or some of them, were executed at the same time, or since said principal illegal contract was made by said parties, or either of them, in connection therewith or as consideration therefor, or in furtherance of said principal contract.</p> <p>lltli. That a re-issue of a bank note is not a making or execution thereof.</p> <p>12th. That in this case, sljght evidence is, if credible, sufficient to cast upon defendant the burden of proof of his defense by testimony in support of his plea; that the jury may look to the dates of the official connection of the different officers of said Mechanics’ Bank, and their deaths, in considering the question as,to when said bills were made or executed.</p> <p>13th. That the mere circulation of said bills among private persons, for lawful purposes during the rebellion, was not and is not illegal.</p> <p>14th. That although the bills sued on may have been issued during the war, for the purpose of aiding the rebellion, and on that account illegal, still, in the hands of a bona fide, purchaser, for value, without notice, they will be upheld, and the holder will be entitled to recover.</p> <p>'Which charges the court refused to give, except the first and second. To which ruling the plaintiff excepted.</p> <p>The court, at the request of the defendant’s counsel, charged the jury :</p> <p>1st. That under the constitution of the state, and the pleading in this case, the plaintiff cannot recover, unless he proves that the bills, which are the foundation of this suit, were not issued in aid of the rebellion against the United States.</p> <p>2d. That in any event the plaintiff is only entitled to recover such a sum as bears the same proportion to the whole amount of bills in circulation, less the amount proved to have been issued to the Confederate and State governments in aid of the war against the United States, as the defendant’s stock bears to the whole capital of the bank.</p> <p>3d. That the plaintiff can only recover the proportion above stated of such bills of the bank as were sued on, on or before January 1, 1870.</p> <p>4th. That if the defendant has redeemed as large a proportion of all the bills of the bank outstanding as his stock bears to all the stock of the bank, he is liable for no more of said bills.</p> <p>To which charges the plaintiff excepted. The jury found a verdict for the defendant.</p> <p>Error is assigned by the plaintiff upon each of the aforesaid grounds of exception. And defendant excepted to the rulings and decisions of the court as follows:</p> <p>1st. Defendant requested the court to charge the jury, that if said bills are held to have been illegally issued, but it is held that plaintiff can recover, as a bona fide holder, he-can only recover, as such, the price he paid for them with interest; which charge the court refused to give.</p> <p>2d. Defendant requested the court to charge, that if defendant has redeemed the bills of said bank to the full amount for which he is liable under the charter, there can be no recovery against him; which the court refused to give so far as relates to bills purchased since the commencement of the suit.</p> <p>Upon both of which exceptions error is assigned by the defendant.</p>

Equity. Administrators and executors. Guardian and ward. Corporations. Bailroads. Sales. Jurisdiction. Stock. New trial. Before Judge Hill. Bibb Superior Court. October Term, 1873.

<p>Equity. Multifarionsnes. Before Judge Bartlett. Jones Superior Court. April Term, 18741</p> <p>For tlie facts of this case, see the opinion.</p>

<p>1. Where suit is brought by a widow and child on a life policy, insuring the life of the husband and father, and the plaintiffs are the joint beneficiaries under the policy, the admissions of the widow are competent evidence for the defendant on the question of misrepresentation made in the application for insurance.</p> <p>2. The rule that a witness, who is not an expert, must give the facts on which he rests his opinion before he will be allowed to state what that opinion is, applies to one who is not a physician, and by whom it is proposed to prove the condition of the health of a party.</p> <p>3. The grounds on which the court refused to withdraw the testimony of the witnesses, Sasser and Willis, cannot exist at any future trial of the case, and as the objection may be cured in time hereafter it is not necessary to consider these exceptions further.</p> <p>4. The same may be said as to the defective notice to produce the family bible. Such defect may be cured by another notice. We do not think the court erred in holding that a notice to produce the “ father’s family bible,” would not force the production of the one described by the witness in this case.</p> <p>5. But a bible containing a family record, in the handwriting of a deceased daughter, which remained in the possession of the mother until her death, and then went into the possession of another daughter, from whom the witness (a son) got it, is competent evidence on the question of the age of one of the children of that mother. The fact that the witness states that he did' not acknowledge the record as correct, and that his mother said it was copied by a sister of witness, and it was not considered correct by the family, does not render the record incompetent as testimony. Such statements of the witness m.av be considered by the jury in determining the weight to be given to the record, and it is subject to be weakened or strengthened by all the evidence in reference to it.</p> <p>6. It was not error for the court to refuse to charge the jury that a delay for several months to give notice of the death of the party whose life was insured was a failure to give notice in a reasonable time.</p> <p>7. Nor was it error to charge the jury that “in considering the question as to the false or fraudulent statement made by the insured, you may consider, if you shall think it throws light on the question, how and by whom the insurance was gotten up, whether at the instance of the insured or by the agent of the company.” All the surrounding circumstances in all contracts where fraud is charged, are matters for the consideration of the jury which is to pass upon it.</p> <p>8. Where evidence is introduced upon the point of misrepresentation as to the age of the party whose life is insured, which is competent, and is to be considered and weighed by the jury in determining the real age of the party, the court should not in its charge, by argument, weaken the weight of the evidence, and say that a portion of the testimony thus relied on does not prove what the party introducing it claims that it does show, and has a right so to argue, the more especially when that portion so pointed out has to be taken in connection with another part, in order to get its full force.</p> <p>9. When the question put in the application is whether the applicant “ever had any serious illness, local disease, affection, or personal injury,” it was not error for the court to charge, that the word “serious ” qualified each of the words, “ local disease,” “affection” and “personal injury.”</p> <p>10. Under the provisions of the Code, applications for insurance must not only be made in the utmost good faith, but the representations contained therein are covenanted to be true by the applicant. Not that they are warranties so as to vacate the policy, if any of them, whether material or not, are not true ; but any variation in them from what is true, whereby the nature or extent or character of the risk is changed, will, if the policy makes them the basis of the contract of assurance, void the policy, whether they are or are not wilfully and fraudulently made.</p>

<p>An award upon a bill, to which the sheirff was made a party simply for the purpose of enjoining him from selling under an execution, containing recitals charging such officer with a large sum of money, does not estop him from traversing such recitals on a rule against him based on such award, although it may have been made the judgment of the court.</p>

■ Illegality. Service. Sheriff. Return. Evidence. Before Judge Pottle. Richmond Superior Court. October Term, 1873. An execution in favor of George W. Williams & Company was levied upon certain property as belonging to the defendant, Porter Fleming. An affidavit of illegality was filed, setting up that the defendant had never been served.

<p>1. An affidavit upon which an attachment for purchase money is based, which states that the defendant is indebted to the plaintiff in the sum of $767 65, and that said indebtedness was created in part by the purchase of a one-half interest in certain property specified, is insufficient. It should state the part that was the consideration of the indebtedness, and the amount due therefor.</p> <p>2. A plaintiff in attachment, where the property levied on has been replevied, is entitled to proceed for his judgment as in other cases at common law, though the attachment'may have beeu dismissed.</p>

<p>Trespass. Execution. Judicial sale. Before Judge Hopkins. Fulton Superior Court. March Term, 1874.</p> <p>A report of this case is unnecessary.</p>

<p>Scire facias. Judgments. Administrators and executors. Amendment. Parties. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>This case is fully reported in the decision.</p>

<p>■ Criminal law. Burglary. Evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>This case is sufficiently reported in the above head-notes.</p>

<p>Illegality. Appeal. Certiorari. Justice Court. Before Judge Buchanan. Troup Superior Court. May Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Criminal Law. Jury. Evidence. Bes gestos. Charge of Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>James Ratteree was placed on trial for the offense of murder, alleged to have been committed upon the person of W. L. Clifton on December 23d, 1873. The defendant pleaded not guilty.</p> <p>Amongst the jurors put upon the defendant was one by the name of J. A. Barry. The name upon the list furnished to the defendant was J. A. Berry. No such name appeared upon the jury lists for the county, but he stated on oath that though his name was Barry, yet he wasgenerally called Berry. When his name of Berry was called he answered to it. He was then sitting within ten feet of defendant. The court, on objection made, held him competent, and the defendant was thus compelled to challenge him peremptorily. To this ruling he excepted.</p> <p>The evidence showed that the deceased and other friends, were going from the city of Atlanta' to Fayette county in wagons. That when about one-half mile beyond West .End he met the defendant, his two brothers, and a boy by the name of Silvey, coming in the direction of the city with a wagon drawn by oxen. That a controversy ensued, the details of which, in view of the decision, are immaterial here, in which the deceased was mortally stabbed by the defendant. That the deceased was placed in a wagon and carried about two hundred and fifty yards, when he said he could go no further, fainted and fell out of the wagon. That he was placed on the side of the road a.nd rubbed with camphor. That the time that elapsed between the stabbing and the rubbing with the camphor was “ a few minutes.”</p> <p>Under these facts the defendant proposed to prove by a witness by the name of Harbuck that when the deceased was being bathed with camphor, he said “if he died and went to hell it was his own fault; that the boys were not to blame.” This evidence was excluded and the defendant excepted.</p> <p>The evidence further showed that from the place above alluded to he was carried to the house of a Mr. R. W. Wood, where he remained about two weeks, during which time he had divers conversations with Wood, in all of which he expressed the belief that he would recover.</p> <p>The defendant proposed to show by Wood that in one of these conversations the deceased had stated “that he did not want the boys hurt; that he was to blame; that the boy (defendant) was not to blame, that it was his own fault; that all he wanted was to catch them out some time and give them a whipping.”</p> <p>This evidence was excluded and the defendant excepted.</p> <p>The evidence further showed that the deceased died from the wounds received at the hands of the defendant.</p> <p>Various requests were made to charge, all of which were covered by the general charge of the court.</p> <p>The jury found the defendant guilty of voluntary manslaughter and recommended him to the mercy of the court.</p> <p>A motion for a new trial was made, upon the ground that the court erred in ruling the juror, Barry, competent, in the above stated exclusion of the testimony of Harbuck and Wood, and upon other grounds not material here. The motion was overruled and the defendant excepted.</p>

<p>To sustain the charge of marrying the wife of another, it is necessary to establish (he marriage either by the record thereof, or by the admission of the defendant, or by the testimony of some one who saw the ceremony performed, or by such other evidence as will clearly establish the fact. It must also be shown that the defendant knew, at the time of the marriage, that the woman was the wife of another.</p>

Wills. Evidence. Before Judge Rice. Jackson Superior Court. August Term, 1874. To report this case would simply be to repeat the facts set forth in the above head-note.

<p>Insurance. Contracts. New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>For the facts, see the decision.</p>

<p>Vendor and purchaser. Possession. Notice. Equity. Specific performance. Lien. Fraud. Before Judge Pottle. Wilkes Superior Court. November Term, 1874.</p> <p>The above head-notes report this case.</p>

<p>Judge. Dower. Vendor and purchaser. Pleadings. Attorneys. Before Judge Clark. Sumter Superior Court. April Term, 1874.</p> <p>A report of this case is unnecessary.</p>

Debtor and creditor. Mistake. Lien. Attorney. Mortgage. Before Judge Hopkins. Fulton Superior Court. March Term, 1874. This was a claim case arising in the justice’s court for the one thousand and twenty-sixth district of Fulton county. Albin Sons & Company were the plaintiffs in ji.fa., Charles R. Groomes, the defendant, and Oliver H. Jones, the claimant.

<p>Taxes. Constitutional law. Municipal corporations. Before Judge Rice. Clarke Superior Court. August Term, 1874.</p> <p>This case is reported in the decision.</p>

<p>Railroads. Warehousemen. Diligence. Charge of Court. New trial. Practice in the Supreme Court. Before Judge McCutchen. Catoosa Superior Court. July Term, 1874.'</p> <p>Camp brought complaint against the Western and Atlantic Railroad Company for $430 00, the value of goods shipped to him, and burned iii the depot of the defendant on February 10th, 1873. The defendant pleaded the general issue.</p> <p>The plaintiff proved the shipment of the goods, their nondelivery, and that they were directed to “L. Camp, care of R. J. Jones, Ringgold, Georgia.”</p> <p>R. J. Jones testified that he called at the depot several times for the goods, but they had not arrived ; that on Tuesday or Wednesday of February court, 1873, defendant’s agent told him the goods had come on that morning; that the depot was burned on the Monday night following; that he informed the agent that he would notify the plaintiff of the arrival of the goods, Avho replied that he wished he would; that he did not pay the freight, nor was it demanded from him by the agent; that he saw the depot burning about ten or eleven o’clock at night on February 10th ; that the wind was blowing from the southeast; that the railroad track was about fifteen feet from the depot,-trains passing thereon frequently, both day and night; that the roof of the depot was old, made of oak boards, and had been there eight or ten years; that the boards were rotten, some of them AArarped; that the roof leaked in some places; that the smoke-stacks of engines in passing would be about fifteen feet, perhaps twenty, from the edge of the roof, and nearly level with it, perhaps not quite so high.</p> <p>As to the condition of the roof, distances, etc., Jones Avas corroborated by several witnesses, and none swore to the contrary. Some stated that it was a dangerous roof, and liable to ignite from sparks. Several testified that the wind Avas blowing from the southeast, which caused the sparks from the engines to fly towards the depot. Two Avitnesses swore that on the night of the fire, about nine o’clock, they saw tAvo engines passing the depot emitting large quantities of sparks, some of which fell on the roof.</p> <p>J. M. McKinney, the cousin and brother-in-law of the plaintiff, testified that he came to Ringgold on Saturday, the 8th of February, and asked for the plaintiff’s goods, and was told by the defendant’s agent that they were in the depot; that he inquired what freight was due on them, and the agent replied by handing him a piece of paper with $33 17 written thereon; that witness asked if he must take the goods out on that evening, or whether they could stay until Monday; that the agent asked him how he came to town, and on being informed that he came on horseback, told him the goods could stay until the day suggested; that Avitness then asked him if there would be any additional expense, to which the agent replied there Avould not be; that on the following Monday he came from where plaintiff lived, twenty miles in the country, with a three-horse team and wagon, and when two miles from town noticed (hat the sun was about two hours high; that he came directly to town and found the depot closed; that lie went to a neighboring store and inquired where the agent was, and was informed that he had probably gone to supper; that the sun was then an hour or an hour and a half high.</p> <p>McKinney was corroborated by several other witnesses.</p> <p>J. M. Flenery, the agent of the defendant, testified that on the Monday evening alluded to he was engaged in the depot until very late receiving freights for shipment, etc.; that he thinks he remained until after sun-down ; that he then closed the depot and went to supper just in time to get back to meet the down train ; that he had to meet this train and usually got his supper before it came; that he was absent not exceeding one hour, and when he returned he remained until nine o’clock; that the evening was dark and cloudy.</p> <p>Other witnesses testified as to the character of the evening, and that the agent left the depot aboutsun-down.</p> <p>The jury found for the plaintiff. The defendant moved for a new trial upon the following, among other, grounds :</p> <p>1st. Because the court erred in charging the jury “that the” defendant was bound to exercise ordinary diligence in taking care of the plaintiff’s goods, and is liable for failing to take such care of the goods as every prudent man takes of his own goods; and that this applies to all of the surroundings; that they might consider the house in which the goods were stored, the roof, the liability to take fire from passing.engines, and in fact all the surroundings, and say from the facts proved whether the defendant exercised ordinary diligence in keeping the plaintiff’s goods, and if it did not it would be liable.”</p> <p>2d.' Because the court erred in charging the jury that the defendant was bound to ordinary diligence in keeping all goods, and in refusing to charge that the neglect must be gross if there was a contract for the gratuitous keeping of the goods,, in order to make the defendant liable for the loss.</p> <p>3cl. Because the verdict was contrary to the law and the evidence.</p> <p>The motion was overruled and the defendant excepted.</p>

<p>Vendor and purchaser. Sales. Before Judge James Johnson. Talbot Superior Court. September Term, 1874.</p> <p>For the facts, see the decision.</p>

Criminal law. Continuance. Jury. Practice in the Superior Court, Evidence. Before Judge James Johnson. .Muscogee Superior Court. November Term, 1874. Tom.

<p>Municipal corporations. Streets. Notice. Before Judge Hopkins. Fulton Superior Court. March Term, 1874.</p> <p>For the facts, see the decision.</p>

<p>Municipal corporations. Streets. Dedication. Before Judge Bartlett. Morgan Superior Court. September Term, 1874.</p> <p>This case is sufficiently reported in the above head-notes.</p>

<p>Administrators and executors. Legacies. Life estates. Wills. Before Judge Hall. Newton Superior Court. March Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Habeas corpus. Constitutional law. Market. Municipal corporations. Before Judge James Johnson. Muscogee County. At Chambers, July 26th, 1874.

<p>Tax. Partnership. Before Judge Tompkins. Chatham County. At Chambers. March 9th, 1875.</p> <p>For the facts of this case, see the decision.</p>

<p>Principal and agent. Debtor and creditor. Promissory .notes. Payment.' Before Judge Pottle. Hancock Superior Court. October Adjourned Term, 1873.</p> <p>Guilford & Company, through their agent, William Stanford, sold to Stacer a piano, stool and cover, taking his note therefor. This instrument was sent to plaintiffs. After its maturity they instituted suit thereon. The defendant pleaded payment in full to Stanford, the agent. The jury found for the defendant. The plaintiffs moved for a new trial, upon the ground that the .court refused to charge the jury ‘‘that if they believed that after the piano had been sold and the note ■given by Stacer to plaintiffs and turned over to them, that Stanford’s agency had ceased as to that transaction, and that defendant had such evidence before him as to induce him to believe it, you should find for the plaintiffs.”</p> <p>And also because, the court charged the jury, in substance, that the defendant was not liable if Stanford was a general agent, with power'to sell and to take money in payment for sales, which fact they must determine from the testimony. That if Stanford sold any other pianos and took pay in part, and afterwards, the principals in Macon, through their bookkeeper, received the balance of the debt without objection, they might consider that as a ratification of that act of Stanford, and they might look to that circumstance in determining whether he was such general agent.</p> <p>The motion was overruled, and plaintiffs excepted.</p>

<p>Equity. Injunction. Judgments. Before Judge Rice. Gwinnett County. At Chambers. April 20, 1875.</p> <p>The principle of law enunciated is sufficiently clear without the report of any facts additional to those stated in the decision. .</p>

Judicial sale. Vendor and purchaser. Bond for titles. Executions. Estoppel. New trial. Before Judge Hall. Henry Superior Court. October Term, 1874. William Upchurch filed his bill against Henry Lewis, Hal.

<p>A company incorporated for the purpose of keeping a hose carriage and hose, with which to extinguish fires, cannot recover damages for the breach of a.contracton the part of the owners of a steamboat, in failing to furnish said boat to convey said company and its friends on an excursion of pleasure and profit. The contract was beyond the objects contemplated in its charter.</p>

<p>Corporations. Stockholders. Parties. Service. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.</p> <p>Moses filed his bill against Young, in which he alleged, in brief, that he was a stockholder in the Eagle Manufacturing Company; that the stockholders of said company, in the year 1865, by resolution, ceased to do business, and directed all of the assets to be converted into money for payment of debts and distribution ; that the defendant was then the secretary of the company, and all of its assets^ to the value of $400,000 00, Avere placed in his hands for the purposes aforesaid; that the Eagle Manufacturing Company has ceased to have any organization as a corporation, or any legal representative, or to do business of any kind whatever, its last corporate act being the transfer of its assets to the defendant; that he has ever since controlled said assets, individually, as trustee for the shareholders, disposing thereof without consultation with those interested, and distributing the same at such times and in such manner as he saw fit; that complainant has no other means of calling the defendant to account exceptas a cestui que trust entitled to share in the assets.</p> <p>The bill then proceeded to enumerate the assets of the Eagle Manufacturing Company wdiich went into the hands of the defendant, to charge various acts of maladministration of , the trust, and ends with a prayer for discovery as to the actions of the defendants, for a full accounting, fur the appointment of a receiver, and for the writ of subpoena.</p> <p>The defendant demurred to the bill for want of equity, and because the Eagle Manufacturing Company was not made a party defendant. The demurrer was óverruled, and the defendant excepted.</p>

<p>1. It is not the duty of the conductor of a freight train to couple and uncouple cars except in the case of a pressing emergency, of which the jury must judge. If he is killed in performing such service, in the absence of such emergency, he is not without fault, and his widow cannot recover damages from the railroad company.</p> <p>2. The verdict being excessive and unsupported by the evidence, a new trial was properly ordered.</p>

Slander. New trial. Before Judge Bartlett. Morgan Superior Court. March Term, 1874. Hanson brought complaint against Brown for $10,000 00 damages, alleging that the defendant had falsely and maliciously said of and concerning him, on September 21st, 1872, the following false and malicious words, to-wit-: “ That he; (meaning your petitioner,) had perjured himself.

<p>Warranty. Sales. Evidence. Principal and agent. Admissions. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>1. The municipal authorities of the city of Athens have no power, under its charter, to establish and carry on a ferry across the Oconee river, though it be within the city limits.</p> <p>2. Nor are the mayor and council in their corporate capacity, liable to a passenger who claims that his property was injured by the negligence of the ferryman in transporting it over a ferry thus established without authority of law.</p>

<p>Criminal law. Evidence. Before Judge Hill. Macon Superior Court. December Term, 1874.</p> <p>Eor the facts, see the decision.</p>

Evidence. New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1874. On June 10th, 1373, Bell leased to Boyd & Brumby a storehouse for the period of two years from August 15th succeeding, at $25 00 per month. On the same day Bell transferred said instrument to Longley & Robinson, with right to collect rents, but to be re-transferred on his paying them “as per contract.” Boyd & Brumby held a duplicate of this lease, except as to the indorsement of transfer.

<p>1. Where a minor was hired by his parent to the defendant to serve him for the term of oneyear as a laborer, the defendant should notify such parent of any failure on the part of such minor to perform his duty before discharging him.</p> <p>2. Should such minor be discharged without such notice, the parent would be entitled to have said contract apportioned and to recover for the time during which, labor was performed before the discharge.</p>

<p>Equity. Set-off. Recoupment. Jurisdiction. Pleadings. Usury. Vendor and purchaser. Judgments. Stockholders. Banks. Before Judge Hill. Bibb county. At Chambers. March 5th, 1875.</p> <p>Appleton P. Collins instituted in the county court of Bibb county, four actions at law, returnable to the October term, 1874, of said court, against Joseph Clayton, as trustee for his wife and children, upon twenty-eight notes, three of said suits being each for the sum of $460 00, besides interest, and one being for the sum of $52 00, besides interest, all of which were given by Clayton, trustee, to Collins, in part of the consideration for the purchase of a lot of land.in the city of Macon and the erection of a house thereon.</p> <p>On the 3d day of October, 1874, the defendant in said cases, filed his bill against said Collins, alleging that he had entered into the contract aforesaid, with said Collins, had paid the $«00 00 cash, as agreed upon, and also twenty-two of the fifty notes provided for in the bond for title, each for $52 00, and had spent upon the property the sum of $1,000 00, or other large sum, in improvements, and setting up as grounds for equitable relief:</p> <p>1st. That the plastering in the house which said Collins agreed to build under the foregoing contract, had never been completed, to the damage of said Clayton, trustee, $300 00 or other large sum.</p> <p>2d. That by reason of the well and well-house having been put in a different place from that intended, said complainant had been put to an expense of $30 00 in digging a new well and building a new well-house.</p> <p>3d. That $100 00 damage had been caused to the property of complainant by reason of leakage of the roof of the house built under the agreement.</p> <p>4th. That a door on the back piazza which would have cost from $10 00 to $20 00, had not been put in according to contract.</p> <p>5th. That he-had paid the sum of $400 00, or other large sum, as usurious interest upon said notes.</p> <p>6th. That said Collins could not give a clear and unincumbered title to said property, because there were judgments in Bibb superior court for the sum of $15,000 00, or other large sum, in favor of W. L. Ellis & Brother, and others, which operated as a lien upon the property of said Collins.</p> <p>The prayer of the bill was for an injunction against the proceeding of said common law suits, for a reduction of the debt by the amount which complainant had been injured by reason of defendant’s non-compliance with his contract and by the amount of usurious interest paid, and in case of failure to remove the alleged incumbrance, an account of the sums paid to defendant by complainant, and a decree for such amounts.</p> <p>Defendant demurred to all of said bill except that part as to the incumbrance on the property, upon the ground that the remedy at law was complete, and also filed an answer, the material parts of which were as follows.</p> <p>1st. He admitted that the plastering had been left unfinished, but said it had been done by consent; that he had al-. ways been, and still was, ready to complete it when called upon, and that the cost of finishing it would not be more-than $100 00. Upon this point he filed the affidavit of Primus Moore, the plasterer who had done the other work in the house, averring his willingness to finish it for $100 00.</p> <p>2d. That the well and well-house had been put in the place agreed upon between him and complainant. In support of this, he filed the affidavits of Jim Stanford and Austin Brathaupt, stating that Clayton had bee® present when the well was dug, and consented.</p> <p>3d. That the house had been fully completed, in a good and workmanlike manner, and in every respect according to contract, and had been fully accepted by said Clayton; that he had never complained in any way until he filed his bill, but, on the contrary, expressed full satisfaction at the manner in which the work was done. Upon this point he filed affidavit of C. C. Wilder, who superintended the building, stating that the contract had been fully complied with, and that Clayton had been satisfied with it. Also, affidavit of G. J. Blake, that in 1874 Clayton had tried to borrow money from him to pay Collins, and had not complained of any non-compliance on Collins’ part.</p> <p>4th. Defendant denied that complainant had ever paid him more than $40 00 of illegal or usurious interest, and alleged that he had made advances for him in the payment of insurance and taxes, the interest of which would fully set off all extra interest ever paid.</p> <p>5th. Defendant denied that there was any judgment against him which operated as a lien upon the property sold by him to defendant; he admitted that he was a stockholder of the Manufacturers’ Bank of Macon, against which there were judgments, but denied that they were liens upon his property. He averred that the proportion of stock held by him bore only such proportion to the whole capital stock of the bank as would make him liable for the sum of $700 00, if liable at all, which he denied. He alleged that he was the bona fid.e owner of $3,000 00 of the bills of said bank, which he held and owned before any suits were commenced against it, and which amount was largely more than enough to protect him from any liability as a stockholder; that he was in possession, either by himself or his tenants, of real estate in the city of Macon of the value of at least $15,000 00, all of which was liable to any judgment, if judgment there was, against him. He further offered to give any bond, with good and sufficient security, which the judge presiding might deem necessary for complainant’s protection.</p> <p>Complainant amended his bill by setting out a memorandum of seven judgments against the Manufacturers’ Bank, amounting in all to about $15,000 00, as to one of which (that of W. L. Ellis & Brother, for about $8,000 00, principal;) it was alleged that notice had been given to the stockholders, as provided by section 3371 of the Code. This was supported by affidavit of W. B. Hill, and was not controverted. No allegation as to notice in the other cases was made. The amendment further charged that complainant had tried to borrow money of the City Building and Loan Association upon said property, and that the counsel of said association had declined to advise the loan on account of the judgments against the Manufacturers’ Bank. Upon hearing the case, Judge Hill granted the injunction, and the defendant excepted.</p>

<p>Prescription. Bonds for title. Notice. Before Judge Clark. Lee Superior Court. November Term, 1874.</p> <p>For the facts, see the decision.</p>

<p>Claims. Mortgage. Prescription. Before Judge Clark. Lee Superior Court. November Term, 1874.</p> <p>This case is sufficiently reported in the decision.</p>

<p>Bankrupt. Attorneys. Parties. Compromise and settlement. Before Judge Clark. Sumter Superior Court. October Term, 1874.</p> <p>The above head-notes report this case.</p>

<p>Husband and wife. Divorce. Confessions. Evidence. Witness. New trial. Before Judge Hill. Bibb Superior Court. October Term, 1874.</p> <p>For the" facts of this case, see the decision.</p>

<p>Administrators and executors. Estates. Eemainders. Ex-ecutory devise. Wills. Distribution. . Before Judge Hall. Eockdale Superior Court. October Term, 1874.</p> <p>This case-is sufficiently reported in the above head-notes.</p>

<p>1. Where the defendants agreed to accept a draft drawn by a third per- * son in favor of the complainants, payable six months after date, given . for a steam engine purchased by the drawer, a bill against them cannot be sustained for tailing to accept a draft totally different on its face from the one agreed on, though it may be alleged that it was the instrument contemplated by the parties.</p> <p>2. If it had been alleged that the draft attached to the bill was the same instrument that the defendants agreed to accept, and that upon the faith of such agreement the engine was delivered to the drawer, that would have been such a part performance by the complainants as would have required a performance of their contract upon the part of the defendants, and would have prevented them from pleading the statute of frauds.</p>

Administrators and executors. Principal and agent. Sales. Equity. Distribution. Election. Before Judge Bartlett.Baldwin Superior Court. August Term, 1874. This is the second time this case has been before this court. See 50 Georgia Reports, 514. In 1853 William A. Moran, of Baldwin county, died intestate, leaving a widow, Eliza F. Moran, who, the same year, administered on his estate, and two children, James JSL, aged three years, and Mary E, (complainant) aged one year.

<p>1. The act of 1811, which provides that where a defendant is discharged by a magistrate for the want of sufficient cause of commitment, such ' magistrate may, in his discretion, direct the costs to be paid by the prosecutor, though not embodied in the Code, not being inconsistent with any of the provisions thereof, is still of force.</p> <p>2. A judicial officer acting within the jurisdiction conferred upon him by law, is not liable for errors of judgment, unless the result of malice or corruption.</p> <p>3. It is competent for the superior court, upon the final decision of a case carried up by writ of certiorari, to direct the magistrate to refund the costs paid by the petitioner. Such magistrate, though insolvent, may be compelled to perform his official duty.</p> <p>4. Courts of equity have no jurisdiction to interfere with the administration of the criminal laws of the state by injunction or otherwise.</p>

<p>1. When the instructions of the court to the jury embrace many distinct questions of law, an exception to the whole charge is too general, and cannot be considered. Justice to the opposite party and to this court, requires that there should be a specification of the errors which are intended to be complained of.</p> <p>2. This well settled rule should be the more strictly adhered to where the record does not contain the evidence in reference to the points on which those portions of the charge were founded that are proposed to be argued as being erroneous.</p> <p>3. On the trial of an issue of devisavit vel non, an executor or legatee is a competent witness.</p> <p>4. If a testator can read and write, his signature is usually sufficient evidence of his knowledge of the contents of the paper signed as his will.</p> <p>5. The further provision of law that greater proof is necessary to show such knowledge if the will be written by one who takes a large benefit under it, does not require that the evidence shall be conclusive.</p> <p>6. And if the court charged that in such a case there should be strong proof that the testator knew the contents, and assented to them, it was not error to refuse to charge that the evidence should be both strong and conclusive.</p> <p>7. When the issues made by the caveat are undue influence — and that the testator did not know the contents of the will when it was signed, and it appears that the will had been written prior to the time of the execution, and was signed by the testator after it had been read over to him, and there were certain words in the will which it was claimed were in a different handwriting from the body of the instrument, it was not error in the court to refuse to charge that if upon inspection of the paper, the jury should think it had been altered, they should treat that as a circumstance of suspicion against the will and to charge in lieu -thereof, that it was a circumstance they might consider in coming to a conclusion as to the validity of the will.</p> <p>8. A refusal to charge a request which includes a hypothesis of facts not authorized by the evidence, is not a ground of error.</p>

<p>Parent and child. Damages. Before Judge Knight. Cobb Superior Court. November Term, 1874.</p> <p>This case is reported in the decision.</p>

Ejectment. Title. Evidence. Before Judge Hopkins. Fulton Superior Court. April Term, 1874. Held: and the plaintiff, after endeavoring to account for the absence of the originals, tendered certain copy deeds in evidence. The defendants objected to the preliminary showing as insufficient. The plaintiff failed to show that he had notified the defendants to produce such original deeds.

<p>Covenants. Land. Title. ■ Equity. Exhibits. Before Judge James Johnson. . Muscogee Superior Court. November Term, 1874.</p> <p>For the facts, see the decision.</p>

Wills. Before Judge James Johnson. Talbot Superior Court. September Term, 1874.