Volume 54 — Georgia Reports

<p>I. It was the dying request of the mother of an infant that the wife of the plaintiff in error should raise and educate it as her own child, which was acquiesced in by the father. Upon the death of the father the child was in the possession of the plaintiff in error and his wife under this arrangement, when the defendant in error induced the plaintiff to allow the child to visit his family, in an adjoining county, he having married the sister of the deceased father, promising to return it in ten days. He failed to return the child-as agreed on, whereupon the writ of habeas corpus was sued out by the plaintiff. The court held that the consent of the father to. the above stated arrangement was revocable, and as it appeared from his declarations made during the last year of his life, that he had changed his mind, and desired his sister, the wife of defendant, to have the custody and control of the child to raise and educate, it would not interfere with the defendant’s possession thereof:</p> <p>Held, that this was error. The possession of the child by the plaintiff in error and his wife, by consent of its father, was prior in point of time, and therefore gave priority of right, of which the consent, under the circumstances, that the defendant should take the child on a visit to his family, did not deprive them.</p> <p>2. Where the parental authority over an infant child is released to another, such release is not revocable without some sufficient legal reason is shown therefor.</p> <p>3. The evidence in this case does not disclose that the father ever did revoke his consent to the arrangement above set forth.</p>

Usury. Accord aud satisfaction. Debtor and creditor. Settlement. Before John Collier, Esq., Judge pro hao vice. Fulton Superior Court. April Term, 1874. This was an action brought to recover usury paid by plaintiff to defendant. A bill of particulars was annexed to the petition, as follows: Atlanta, Georgia, September 14, 1867. Mr. J. M. Ball, in account with G. C. Rogers. 1866. ■ Dr. . Cr. May 12.

<p>Where a demand for trial was made, and at the next term a mistrial was declared without the consent of the defendants, that fact did not entitle them to a discharge. The court could again place them on trial at the same term.</p>

County matters. Roads and bridges. Service. Before Judge Jambs Johnson. Harris Superior Court. October Term, 1874.

<p>Where litigation was settled by a consent decree, it is incompetent upon the trial of an action for one hundred bushels of corn alleged to be due the plaintiff upon such settlement, to show that such com was to be delivered in addition to the property specified in the decree, it not appealing that the omission to enumerate it, was due to fraud, accident or mistake.</p>

Partnership. Contracts. Pleadings. Before Judge Buchanan. Coweta Superior Court. September Term, 1874.

<p>Evidence.' Common carriers. In pari delieto. Before William A. Little, Judge pro hoe vice. Muscogee Superior Court. November Term, 1874.-</p> <p>’ Any further report of this case beyond what is contained in the decision and the head-notes, is deemed unnecessary. See report when before this courtat a former term: 48th Georgia Reports, 102. . /</p>

Homestead. Tax. Lien. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874. On October 2d, 1873, the comptroller general issued an execution against Isaac T. Brooks, as tax collector of Muscogee county, and his securities, for $874 74, it being the amount of a default made by him in the year 1867. On November 17th, 1873, a levy was made on certain lots of land which were claimed by Joseph H. Brooks.

<p>Where a conviction was based upon confessions induced by the threatening acts of the parties obtaining the same, though no language was used expressly extending the hope of benefit or fear of injury, a new trial will be ordered.</p>

<p>Where misdemeanors are transferred from the superior to the comity court, under the 314th section of the Code, the fines and forfeitures derived therefrom, after deducting the costs of the officers of the superior court in the transferred cages, should be paid over to the county treasurer.</p>

<p>1. The lien of a laborer on the property of his employer will not prevail against a purchaser who buys before foreclosure of the lien, and without notice.</p> <p>2. Where the verdict is such as it ought to have been under the evidence, this court will not set it aside, although the judge who tried the case may have committed error in his charge to the jury.</p>

<p>1. Where the charge of the court is not set forth, it will be presumed that the jury were properly instructed, and assignments of error that the verdict was contrary to law and the charge of the court, will not be entertained.</p> <p>2. Where ejectment is brought and the. defendant files an equitable plea to the effect that the deed from him under which the plaintiff claims title was made to secure a debt, and was in fact but an equitable mortgage, it was incumbent upon him to tender payment of the principal and interest of the indebtedness1, and to pray for the redemption of the property.</p> <p>3. Whilst the defendant may file an equitable plea in the common law courts, still he must make such allegations as would have entitled him to relief in a court of equity.</p>

Contracts. Guaranty. Tender. Pleadings. Waiver. Before Judge Rice. Gwinnett Superior Court. September Adjourned Term, 1874. This litigation was before this court at the last term. See 5'2d Georgia Reports, 570. Georgia V. Martin, as administratrix upon the estate of Clarissa C. Gordon, deceased,- brought complaint against James P. Simmons upon the receipt incorporated in the. first head-note.

<p>Principal and agent. Debtor and creditor. Payment. Before Judge Pottle. Madison Superior Court. September Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>1. In misdemeanors there are no principals in the second degree.</p> <p>2. If an indi ctment against ¡Jpveral for assault and battery, charges one as principal ‘in the second degréte, but alleges such acts on his part as would make him guilty of the offensexharged, the words “ principal in the second degree” may be rejected as surplusage, and upon proof of the facts alleged, ?. verdict of guilty will be sustained.</p> <p>3. An exception which is relied on to prevent the bar of the statute of limitation, should be shown in the indictment.</p> <p>4. If five defendants are jointly indicted for an offense charged to have been committed at a time which would make the statute a bar, and four of them are alleged to be within a specified exception, and there is no allegation on that question as to the other, the indictment is demurrable as to him.</p>

<p>1. Where, by act of the general assembly, of December 17th, 1861, the county of Bartow was authorized to issue bonds for the support of the indigent families of the soldiers of the Confederate Slates, and by another act, passed on February 23d, 1866, the justices of the inferior court of said county were authorized to settle or compromise the bonds issued under authority of the first act, this second act was a distinct recognition of the legality of the same.</p> <p>2. The borrowing of money by a county and appropriating the same for the support of the indigent families of the soldiers of the Confederate States, and other needy persons, cannot be considered, in a legal sense, as having been done in aid of the rebellion.</p> <p>3. Where an amendment had been made to the plaintiff’s declaration, pend. ' ing the litigation, without objection, it was not proper for the court to nullify, ex mero motu, the effect of said amendment by its charge.</p> <p>4. Declarations in the statutory forms may be amended as other declarations.</p> <p>5. An amendment relates back to the commencement of the suit. That the suit, had it been commenced at the date of the filing of the amendment, would have been barred, is no ground to hold that the case as made by the amendment was barred, provided it was proper to be allowed.</p> <p>6. Contracts with a county must be in writing and entered on the minutes of the court of ordinary.</p> <p>7. Where orders were passed by the inferior court of the county of Bartow, and entered on the minutes of that court, authorizing and directing certain bonds to be issued, and the same were issued in pursuance thereof, and delivered to the plaintiff, who paid to said county, or its authorized agent, the money therefor, which was received and appropriated to its use, such entry on the minutes was a compliance with the 493d section of the Code, and said bonds were valid obligations on the county.</p> <p>8. The plea of non est factum may be filed after the first term, especially when a sufficient reason is shown therefor. . ,</p> <p>9. A request to the court to charge should state the principle of law applicable to the facts of the case, without attempting to draw any inferences or conclusions therefrom for the consideration of the jury.</p> <p>10. Although the court may refuse to give a charge in the language requested, because objectionable, still it is its duty to-instructthe jury as to the law applicable to the facts of the case, especially when its attention is called thereto.</p>

Arbitrament and award. Land. Water. Before Judge McCutchen. Dade Superior Court. March Term, 1874. There being a controversy between John B. Wilkinson and Jacob Sitton as to the damages sustained by the latter, by reason of the erection and maintenance of a mill-dam by the former, thereby causing the lands of the latter to be overflowed, the matter was submitted to arbitration.

<p>Charge of Court. New trial. "Vendor and purchaser. Title. •Before Judge Knight. Fannin Superior Court. October Term, 1874.</p> <p>This case is sufficiently reported in the decision.</p>

<p>When a return of partitioners is set-aside by the verdict of a jury on objections filed thereto, and a new partition is awarded by order of the court, either party has the right to except to the second return before it is made the judgment of the court, and to have his objection passed upon by a jury.</p>

<p>Municipal corporations. Roads and bridges. County matters. Before Judge Rice. Clarke Superior Court. February Term, 1874.</p> <p>For the faets, see the decision.</p>

Warranty. Judgments. Lien. Before Judge Knight. Cobb Superior Court. November Term, 1874. Taylor brought complaint against Stewart on his warranty embraced in a deed executed by him on February 6th, 1872, conveying a five acre tract of land to the plaintiff for the expressed consideration of $60 00. 'The defendant pleaded the general issue, and that th.e plaintiff had surrendered possession of the land to a title which was not paramount.

Trespass. Evidence. Damages. New trial. Before Judge Rice. Clarke Superior Court. February Adjourned Term, 1874. Rucker brought' case against the Athens Manufacturing Company for $5,000 00 damages, alleged to have been sustained by reason of water being backed upon the plaintiff’s land by the mill-dam of the defendant. The defendant pleaded the general issue. The jury found for the plaintiff $1,-500 00.

<p>1. The orders of the courts of ordinary of this state, in matters connected with wills and the administration of estates, are judgments of courts of general jurisdiction, and the necessary jurisdictional facts need not appear on the face of their proceedings.</p> <p>2. The admissibility of letters of administration presents a question for the court with which the jury has nothing to do.</p> <p>3. Where suit was commenced in one county for a tract of land, a part of which lay in another county, prior to the adoption of the constitution of 1868, but the trial was not had until subsequent thereto, a recovery may be had for the entire tract.</p>

<p>Wjiere the application for the twelve months’ support of a widow and minor children was made by the administrator, and during litigation growing out of objections filed by creditors, the case was adopted by and prosecuted in the name of the widow, and such fact appears in all the proceedings after-wards, it was error to dismiss the case on the appeal, on motion of the creditors, on the ground that the original application was made by the administrator, or because the administrator did not have notice. The application having been signed by him was sufficient notice.</p>

<p>Partition. Divorce. Equity. Trusts. Before Judge Buchanan. Troup Superior Court. May Term, 1874.</p> <p>The facts of this case are reported in the decision.</p>

Equity. Building and loan associations. Parties. Decrees. Corporations. Officers. Principal and agent. Before William H. Hull, Esq., Judge pro hao vice. Richmond'Superior Court. April Term, 1874. T]iis is the second time this case has been'before this court See 48 Georgia Reports, 445. It is sufficiently reported in the above head-notes.

<p>The judgment of the court in this case is not contrary to the evidence, especially as it does not appear that the lien of the complainant as a merchant and factor, for plantation supplies and provisions furnished, was created by special contract in writing.</p>

Pleadings. Acceptance. Recoupment. Before Judge Hill. Twiggs Superior Court. October Term, 1874. Lawton & Willingham brought complaint against Eli S. Griffin on a draft drawn by said defendant on the plaintiffs and accepted by them, dated June 6th, 1873, due October 25th next thereafter, for the sum of $443 00. The declaration alleged that the defendant was indebted to the plaintiffs as accommodation acceptors on the aforesaid paper, which they had paid when due.

<p>• Criminal law. Burglary. Intent. Before Judge Hall. Monroe Superior Court. August Term, 1874.</p> <p>This case is reported in the decision.</p>

<p>Where the heirs-at-law of an intestate agreed in 1859 that without formal ad- • ministration, one of them should take charge of the estate, dispose of the same, and collect the claims due, discharge the debts and pay over the balance to the heirs, and suit is brought in April, 1870, by a portion of the heirs, against such agent, charging that under such agreement, he possessed himself of said estate, and made collections and sale of part thereof in 1866 and 1867:</p> <p>Held, that a demurrer does not' lie on the ground that the suit was not commenced by the 1st of January, 1870.</p>

<p>Garnishment. Municipal corporations. Schools. Before Judge Hall. Spalding Superior Court. August Term, 1874.</p> <p>This case is reported, in the decision.</p>

<p>A motion for a new trial made in term cannot be heard in vacation over the objection of either party, unless an order be taken for that purpose, or it be so directed in the rule nisi.</p>

<p>(These cases ■were heard and decided together.)</p> <p>Where there was no evidence to sustain the judgment of the justice, the order of the superior court dismissing the writ of certiorari thereto, was error.</p>

Factors. Lien. Estoppel. Before Judge James Johnson. Talbot Superior Court. September Term, 1874. Swift, Murphy & Company brought complaint against Daniel, on an account for $151 80. The defendant pleaded the general issue and set-off as follows: Swift, Murphy & Company to William A. Daniel. Dr. February 27, 1869.

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

Promissory notes. Contracts. Pleadings. Before Judge Buchanan. Coweta Superior Court. September Term, 1874.

<p>Witness. New trial. Scaling ordinance. Before Judge McCutchen. Polk Superior Court. August Term, 1874.</p> <p>Eor the facts, see the. decision.</p>

Justice Courts. Appeals. Before Judge James Johnson. Talbot Superior Court. September Term, 1874. Helms brought suit against Reedy in the justice court for the nine hundred and fourth district, on an account for $34 98. The defendant pleaded set-off of an account for $97 85. The court rendered judgment for the plaintiff for $28 23. The defendant appealed to the superior court.

<p>Administrators and executors. Injunction. Before Judge James Johnson. Muscogee County. At Chambers, March 5th, 1875. •</p> <p>Any further report of this case, beyond what is set forth in the decision, is deemed unnecessary.</p>

<p>One who receives goods consigned to him to be sold on commission, and who sells the same and fails to pay over the proceeds, creates a debt whilst acting in a fiduciary character, from which he is not released by obtaining a discharge under the bankrupt act of the United States.</p>

<p>Where a note was made by a non-resident without the limits of this state, and such maker subsequently removed here, such period of non-residence will not be excluded in computing the time necessary to bar a suit upon such instrument.</p>

<p>1. A counter-affidavit filed to stay proceedings under a -warrant to dispossess a tenant holding over, set up that a third person had, a month previously, . sued out a similar warrant against him for the same premises, and that plaintiff in the present proceedings had said to affiant in a conversation, that he had sold the land to such person, and further set up that his lease had not expired. On motion, all was stricken from the affidavit except the last ground:</p> <p>Held., that as there was no allegation that defendant held under such third person, and no denial of his tenancy under the plaintiff, there was no error in the ruling of the court.</p> <p>2. Under section 4890 of the Code, governing such cases in the city of Savannah, it is sufficient for the landlord, after reciting necessary facts in his affidavit, to state that the tenant refuses to deliver possession.</p> <p>3. Though a defendant may be entitled to a non-suit at the conclusion of plaintiff’s evidence, yet if it be refused, and evidence subsequently introduced, be sufficient to authorize a verdict' for plaintiff, it will not he set aside on account of the refusal of the non-suit.</p> <p>4. Although the charge to the jury may not have been strictly correct upon the question of defendant’s refusal to give possession, yet if the verdict is what it should have been, under the evidence, this court will not set it aside.</p> <p>5. The statement made by the tenant to the landlord before the warrant was sued out, that he “ would give him (the landlord) trouble to get possession,” or that “ he would hold on to the property,” was sufficient to dispense with further proof of a refusal to surrender possession.</p> <p>6. It was not competent for the defendant to prove that a custom existed between landlords and tenants in the city of Savannah, for the purpose of denying the legal rights which the plaintiff had under a written contract.</p> <p>‘J. Where it is stipulated in a written contract for a five years’ lease, that the tenant shall have ninety days after its termination to remove the improvements he may have put upon the premises, and the landlord does not sue out a warrant to dispossess him until after the expiration of the ninety days, it was not error, (such as the tenant can complain of,) for the court to charge that the lease did not terminate so as to make him a tenant holding over until the close of the ninety days, and that the jury could find double rent from that time.</p>

<p>Lien. Demand. Factors. Before Judge Pottle. Wilkes Superior Court. May Adjourned Term, 1874.</p> <p>For the facts of tin's case, see the decision.</p>

<p>The Rome Iron Manufacturing Company was authorized by an act of the legislature to borrow money and to secure the loan by mortgage of the corporate property. To effect this loan, certificates of stock were prepared, each bearing an indorsement that they represented preferred stock, with a guaranty of fifteen per cent, annually, for two years, when they were to be redeemed or converted into common stock, at the option of the holder, and also th'at they were secured by first mortgage bonds of the same amount held as collateral in the hands of trustees. The loan was obtained by selling these certificates at par, secured by mortgage as stipulated. After the expiration of two years, the company being unable to pay the certificates, they were, by agreement with the company, exchanged by the holders for the mortgage bonds, which were delivered to the holders, and the scrip for the stock surrendered and canceled. The owners of these certificates never took any part, or voted, in any meetings of the company, nor were they ever entered on the books as stockholders, and the amount of scrip issued to them did not make the stock of the company in excess of what it was authorized to issue. By all the resolutions of the directors, and of the company in convention in reference to the transaction, it was recognized and ordered, as a means adopted to effect the loan authorized by the act of the legislature, and nothing appeared showing fraudulent intent on the part of the company, or the bondholders, as against other creditors. The company subsequently became insolvent, and its assets placed in the hands of a receiver :</p> <p>Held, that in a contest between creditors over the assets, the holders of the mortgage bonds were entitled to claim as bona fide creditors.</p>

<p>Equity. Sale. Vendor and purchaser. Before Judge Rice. Hall County. At Chambers. December 1st, 1874.</p> <p>Eor the facts of this case, see the decision.</p>

<p>Bankrupt. Judgment. Liens. Evidence. Claims. Debtor and creditor. Charge of Court. Practice in the Superior Court. Before Judge Bartlett. Greene Superior Court. March Adjourned Term, 1874.</p> <p>Eliliu S. Terrell recovered a judgment against Josiah Davis ' at the December term, 1866, of Greene county court. Execution issued, and in May, 1873, was levied on a house and lot. A claim thereto was interposed by Orville Barber. Upon the trial of the issue thus formed, substantially the following facts appeared :</p> <p>- Davis conveyed the property in dispute to the claimant on April 19th, 1866, for an alleged consideration of $2,500 00. The claimant is described as being of the county of Litchfield, in the state of Connecticut. He was.not present at the time of the execution of the deed, and no money was seen to pass. Davis was adjudged to be a bankrupt on February 15th, 1868. He was'finally discharged by the district court of the United States for the southern district of Georgia, on August 13th, 1873.</p> <p>The claimant offered in evidence the certificate of the discharge of Davis. On objection taken it was excluded on.the ground of irrelevancy, and the claimant excepted.</p> <p>The claimant offered in evidence a memorandum in the handwriting of Davis, made out two years after the alleged sale to claimant, and also the schedules attached to his petition in bankruptcy, showing an indebtedness to claimant of $3,000 00. The evidence was excluded, and claimant excepted.</p> <p>The claimant offered in evidence a power of attorney from him to defendant in Ji. fa., executed on August 3d, 1866, authorizing the latter to sell the property in controversy for him. It was objected to until its execution was proved by the attesting witness. The claimant proposed to show that the signature was in 1ns handwriting by evidence other than that of the attesting witness. This the court refused to permit, and excluded the instrument. To this ruling claimant excepted.</p> <p>There was evidence tending to show that at the time of the conveyance to claimant, Davis was insolvent; that it was agreed between him and claimant that he was to remain in possession of the property until his death. It was shown that he actually did remain in possession until his death, which occurred several years after the sale.</p> <p>Plaintiff in fi. fa. offered in evidence the records of suits pending against Davis at the date of the conveyance to claimant. The latter objected to the testimony. The objection was overruled, and he excepted.</p> <p>The jury found the property subject. The claimant moved, for a new trial, upon the ground that the court erred in each of the aforesaid rulings, and for these further causes:</p> <p>Because the court erred in charging the jury, that if they believed there was an agreement between the claimant and the defendant mfi.fa. that the latter might occupy the premises sold as long as he lived, such agreement was a reservation of a benefit or trust for the vendor, and is void.</p> <p>Because the court erred in asking counsel, at the conclusion of his charge, if they desired the jury instructed upon the subject of damages.</p> <p>Error was also alleged in a refusal to charge, but as the request was, in substance, embodied in the general instructions given to the jury, it is deemed unnecessary to set it forth here.</p> <p>The motion was overruled, and the claimant excepted.</p>

<p>Contracts. License. Pleadings. Physicians. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>For the facts, see the decision.</p>

Judgments. Administrators and executors. Practice in the ■Superior Court. Before Judge Strozer. Randolph Superior Court. May Term, 1874. In May, 1863, Jones, executor, recovered a judgment against Samuel A. Grier and others. In December, 1869, the execution based on this judgment was levied, and an affidavit of •illegality filed thereto upon the ground that the consideration of the indebtedness for which the suit was brought, was slaves.

<p>1. The evidence of the committing magistrate to the effect that he examined the defendant when brought before him to ascertain if he would make contradictory statements, and giving such statements, was inadmissible.</p> <p>2. A magistrate has no right to examine a defendant for the purpose of obtaining from him contradictory statements. If the defendant desired to make a statement, it was the duty of such officer to reduce it to writing and to return it to the superior court. Such paper would be the highest evidence of what such statements were.</p> <p>3. Where the defendant was on trial for the offense of assault with intent to murder, and there was evidence tending to show that had death ensued he would not have been guilty of murder, the court should charge on the subject of manslaughter and justifiable homicide.</p> <p>4. It was error to charge." that law writers say that a chain of circumstances cannot lie whilst a witness may,” because it was calculated to impress on ' the minds of the jury that the defendant’s witnesses had sworn falsely.</p>

<p>I. A petition to the ordinaiy asking that a minor child should be bound as an apprentice to the applicant, did not show the residence of the minor. The order granting the application was passed the day the petition was filed. It only recited the fact that the application was made, and that no good cause was shown to the contrary. The only other instrument in the case was a bond of the applicant, which contained no stipulation to teach the apprentice any trade, business or occupation, as by law required:</p> <p>Held, that on the hearing of a habeas corpus sued out in behalf of the minor, charging that she was illegally restrained of her liberty by the reputed mas-1 ter, the production of such proceedings will not be sufficient to authorize an order adjudging to him the custody and control of the alleged apprentice.</p> <p>2. The provisions of the act of March 17th, 1866, amending the lav/s of this state in relation to apprentices, should be strictly complied with, and it should so appear on the face of the proceedings.</p>

<p>Equity. Partnership. Statute of limitations. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.</p> <p>For the facts, see the decision.</p>

<p>1. Suits in behalf of a county may be brought by the ordinary, and if during their pendency, a board of commissioners be by law appointed for the county, the commissioners may, by amendment, be substituted in lieu of the ordinary.</p> <p>2, It is in the discretion of the chancellor to allow an amendment to a sworn bill, proceeding in the name of the commissioners, to be verified by the affidavit of the solicitorof the complainant.</p> <p>3. A bill for account and settlement was filed in behalf of the county against a former sheriff thereof, charging that he had for several years, whilst in office, received large amounts of money from the county treasurer on accounts made out by him for fees and services, which were illegal, false and fraudulent) that he had charged costs accruing in,civil cases in his bill for insolvent criminal costs; had charged for services never rendered and for expenses never incurred by him, and for divers matters and things for which the county was not liable ; had made out accounts and received the money thereon twice for the same matters, and had charged for articles furnished the county more than the cost thereof, and for cost which had been paid by the parties to the cases in which they accrued; that he had collected fines and other money coming to the county, and never accounted therefor; that by fraud and misrepresentations he procured his accounts to be approved, but obtained no order for their payment, with one or two exceptions, and that no order of approval or payment was ever entered on the minutes of the court, as required by law; that payment for all these was procurred from the county treasurer by his being misled and deceived by the falsehood and misrepresentations of the sheriff, "and that a large amount was received in payment of insolvent criminal costs out of the general county funds, when they were only payable from fines and forfeitures:</p> <p>Held, that the bill was not demurrable either for want of equity, or because ' there was an adequate remedy at law.</p> <p>4. Under the provisions- of the Code allowing parties to take testimony as soon as the bill is filed, and making the second term after service is perfected the trial term for equity causes, and discovery in this case having been waived, it was not error for the chancellor to refer the cause to a master at the first term, especially where all the rights of the parties were reserved in the order of reference.</p> <p>5. Where an injunction has been granted after a hearing of both parties, the refusal of the chancellor to dissolve the same on motion, without bringing forward new matter occurring subsequent to the first hearing, will not be reviewed by this court on a bill of exceptions sued out before the final determination of the cause.</p>

<p>1. The affidavit foreclosing a merchant’s lien must aver a demand for the . payment of the debt upon the owner of the property levied on, a refusal to pay, and that the lien is prosecuted within one year after the debt became due.</p> <p>2. An affidavit upon which to base the foreclosure of a chattel mortgage must allege that the defendant resides in the county of such proceeding.</p>

Homestead. Notice. Vendor and purchaser. Before Judge Hall. Rockdale Superior Court. October Term, 1874. Sidney B. Cheney, for herself and her minor children, brought complaint against Richard W. Rogers for a tract of land. The defendant pleaded the general issue.

<p>New trial. Before Judge Bartlett. Baldwin Superior Court. August Term, 1874.</p> <p>This case is sufficiently reported in the decision.</p>

<p>(Trippe, Judge, having been of counsel, did not preside in this case.)</p> <p>In view of the legislation before and since the Code of 1863, section 3627 of said Code, fixing the fees or commissions of the county treasurer, is to be considered as giving to the treasurer two and a half per cent, for receiving public funds, and two and a half per cent, for paying out the same.</p>

<p>Witness. Evidence.- New trial. Payments. Debtor and creditor. Before Judge Herschel Y. Johnson. Washington Superior Court. March Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

Mortgage. Estoppel. Title. Before Judge Hall. Rock-dale Superior Court. February Term, 1874. This case arose upon the levy of a mortgage fi. fa. in favor of Turner against James H. Carroll and Elizabeth Carroll on certain land, and a claim filed thereto by Jesse W. Carroll.

<p>Statute of frauds. Accounts. Contracts. Non-suit. Practice in the Superior Court. Before Judge Bartlett. Baldwin Superior Court. February-Term, 1874.</p> <p>For the facts, see the decision.</p>

<p>Constitutional law. Administrators and executors. Jury. Confederate money. New trial. Before Judge Hall. Newton Superior Court. March Term^ 1874.</p> <p>On May 3d, 1853, John Webb was appointed guardian of Caroline and Elizabeth Hodge, minor orphans of James Hodge, deceased, and from that time to the year 1864 inclusive, he made his returns to the court of ordinary. Caroline Hodge became the wife of Joseph C. Harper, and Elizabeth that of Joseph Mables. These parties obtained a rule from the court of ordinary requiring-said guardian to appear for a, settlement. An appeal to the superior court was entered by consent. Webb died, leaving his widow as the executrix of his will. Before she was made a party she also departed this life. William F. Davis was then appointed administrator cle bonis, $to., upon the estate of Webb, and became a party to this litigation.</p> <p>When the case was called, counsel for the defendant moved to dismiss the proceeding upon the ground that the court of ordinary, where it was originally instituted, had no jurisdiction to hear and determine the same, as it involved matters of account, of which the superior courts, under the constitution, had exclusive cognizance; and further, because no trial by jury could have been had in such court.</p> <p>The motion was overruled, and the defendant excepted.</p> <p>The plaintiffs introduced the returns of Webb, as guardian; Barber's table, showing the values of Confederate money at various times during the late war, and closed. Upon said returns there appeared an investment of the money of the -wards to the amount of $2,000 00 in Confederate bonds, of date January 1st, 1864.</p> <p>The defendant introduced the aforesaid bonds.</p> <p>The court charged the jury that Webb had the right to receive payment of debts due his wards in Confederate money, provided the receipt of the money was such an act as a prudent man would have done in the management of his own business, and if he did so receive any Confederate money and invest it in Confederate bonds under an order of the judge of the superior court, and the bonds were lost by the result of the war, without fault on his part, then he could not be charged with the amount thereof; that if the guardian received Confederate money and invested the same as the funds of his wards, in Confederate bonds or securities, after December 14th, 1863, without an order from the judge of the superior court of the circuit, such investment was at his own risk, and lie is bound for the value of the Confederate money so invested by him, unless the investment was made in four per cent. Confederate bonds, under the act of March 21st, 1864, between said date and the 2d of the ensuing April.</p> <p>To this charge the defendant excepted.</p> <p>The jury found for each of the wards $1,630 60. The defendant moved for a new trial upon the following grounds, to-wit :</p> <p>1st. Because the court erred in refusing the motion to dismiss the proceedings upon the grounds stated.</p> <p>2d. Because the court erred in the charge aforesaid.</p> <p>3d. Because of newly discovered evidence to the effect that the money in the hands of the guardian which was invested in the Confederate bonds, was Confederate treasury nofes, as will appear by the affidavit of E. H. Gay.</p> <p>Gay swore that in January, 1856, Milledge Gay Borrowed of Webb, as guardian, $530 00/and that deponent, as his administrator, repaid the same in Confederate treasury notes during the war; this to the best of his remembrance and belief.</p> <p>The usual affidavit of the defendant was attached, showing such evidence to be newly discovered.</p> <p>It was admitted that Gay was the son-in-law of Webb and the brother-in-law of the defendant, near to whom he lived.</p> <p>The motion was overruled, and the defendant excepted.</p>

<p>Criminal law. Indictment. Larceny. Banknotes. Before Judge Gibson. Richmond Superior Court. October Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

County matters. Roads and bridges. Before Judge Buchanan. Monroe Superior Court. September Term, 1874. James M. Shannon and others petitioned the county commissioners of Monroe county to change or alter the road leading from Forsyth to Cabaniss, and to construct a bridge over the Towaliga river at the point where the new road will cross said stream. The commissioners appointed reviewers, wrho reported in favor of the alteration, as prayed for.

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

<p>1. Where a mortgage fi. fa. sold land, and one of the plaintiffs bid off the same, and the sum bid was credited on the fi. fa. by consent of the sheriff and the bidder, and entries were made accordingly:</p> <p>Held, that under our law the purchaser might, with proper averments in his declaration, maintain ejectment for the land, although no deed was made by the sheriff to said purchaser.</p> <p>2. A purchaser from the defendant in execution, after the date of such a sale, is not charged with notice thereof, and it is incumbent upon the plaintiff in a suit against such purchaser to show such notice or other mala fides before he is entitled to recover the land.</p>

Injunction. Before Judge Gibson. Burke County. At Chambers. March 25th, 1875.

Vendor’s lien. Statute of limitations. Before Judge Mc-Cutchen. Bartow Superior Court. September Adjourned Term, 1874. On July 28th, 1873, Cooper filed his bill against Lowery, for the purpose of enforcing his vendor’s lien upon certain lands which he had sold and conveyed to one Charles Smith prior to the year 1863, and which Smith had sold and conveyed to the defendant in the year 186 — .

<p>Where the evidence was conflicting, this court will not interfere with the discretion of the court below in refusing a new trial.</p>

Administrators and executors. Sales. Damages. New trial. Before Judge Hopkins. Eulton Superior Court. March Term, 1874. This was a suit brought to recover of Alexander the difference between two bids on a city lot, on Marietta street, in Atlanta, knocked off to him at administrator’s sale, and sold the second time at his risk. At the first sale the property was knocked off to Alexander at $160 00 per front foot, amounting to $8,000 00.

<p>Where the title to land was fradulently procured from the owner and conveyed to a third person, who toolc with notice of the perpetration of the fraud, both deeds will be set aside by a court of equity.</p>

Criminal law. Practice in the Supreme Court. Before Judge Hopkins. Fulton Superior Court. March Term, 1874. This case turned entirely upon the testimony, except as to a point of practice in the supreme court embraced in the first head-note. Any further report is deemed unnecessary.

<p>1. When the court undertakes to distribute money in the hands of the sheriff according to the respective liens upon the funds in hand, it does so upon equitable principles, in view of the priority of the liens created by law thereon, for the reason that the money is not subject to levy and sale in satisfaction thereof.</p> <p>2. Where the property of the defendant was sold under a junior execution, and one of older date was placed in the hands of the sheriff to claim the fund; and an execution against the plaintiff in such senior fi. fa. was also placed in such officer’s hands claiming whatever amount might be awarded to such older fi. fa., and pending this proceeding, after the aforesaid sale» the plaintiff in such senior fi. fa. transferred the same for a valuable consideration :</p> <p>Held, that the execution against him was nevertheless entitled to whatever amount should be awarded to his fi. fa.</p>

Contracts. Trusts. Evidence. Charge of Court. Before Judge Hopkins. Fulton .Superior Court. October Term, 1874. Morrison brought complaint against Ball on the following account: James M. Ball to James J. Morrision, Dr. 1872. January. To cash received on sale of house and lot in city of Atlanta, known as the “ Smith place,” placed in the hands of said Ball to be disposed of for the use of said Morrison .... $9,000 00 Cr.

<p>Sheriff. Contempt. Rule. Before Judge Bartlett. Wilkinson Superior Court. October Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>On the trial of an indictment for keeping “a disorderly house,” it was not error in the judge to permit the state to prove by a policeman that he had gone to the house to arrest a criminal, and that the defendant, who was then keeping the house, secreted the person he was seeking in a closet. Such an act, standing alone, would not be sufficient upon which to base a conviction, but it might be one act, among others, going to show that the house was a disorderly one.</p>

<p>” New trial. Newly discovered evidence. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874.</p> <p>This case is sufficiently reported in the decision.</p>

Criminal law. Larceny. Demurrer. Before Judge Hopkins. Fulton Superior Court. October Term, 1874. Inman was placed on trial for the offense of larceny from the house.

<p>1. Where, upon an accounting between an executor and the legatees, a note made by the former was found in his inventory of the property of the testator and embraced in the appraisement thereof, which he claimed to represent an advancement made to him by such testator, he was a competent witness to show how he came to return said note in the inventory, but incompetent as to any matters which passed between the testator and him as to the same.</p> <p>2. Where the verdict must have been the same even if the excluded evidence had been admitted, a new trial will not be ordered.</p>

Damages. Charge of Court. Immaterial error. New trial. Before Judge Gibson. Richmond Superior Court. April . Term, 1874.

<p>i. The repeal of a statute de«laratory of what the common law was, without more, leaves the common law in full force and operation.</p> <p>3. A trust estate cannot be created in property for the sole benefit of a male who is sui juris, and conveyed to a trustee for the purpose of protecting it from his creditors.</p> <p>3. Where a testator bequeathed property in trust for the benefit of his son, without any limitation as to the extent of his interest in the same, but provided that he should be restricted in his expenses to the income thereof, and that said property should not be subject to his debts unless made by the written consent of the trustee:</p> <p>Held, that after said son became of age, there being nothing for the trustee to do beyond that which was contrary to the policy of the law, the trust was executed and the beneficiary took an absolute fee simple estate therein.</p> <p>4. Evidence sustaining a defense not set up by the answer is inadmissible.</p> <p>5. A party to a contract is an incompetent witness in reference thereto, where the other party is dead; and this rule, of course, excludes an entry made by the survivor on an obligation of his to the deceased, after the death of the latter, by which the former was released from a portion of such liability.</p> <p>6. It is the duly of the court, when requested, to instruct the jury what portion of the defendant’s answer is responsive to the bill, and what is not.</p> <p>7. It is the legal right of a party to have the charge of the court reduced to writing. As a matter of 'practice, such request should be made before the commencement of the argument to the jury.'</p>

Injunction. Claim. Judgments.. Before Judge Hopkins. Fulton county. At Chambers. March 30th, 1875. Winship filed his bill against Phillips for the purpose of enjoining the sale of certain lands which he had purchased from one John H. Lovejoy, under executions against the latter of older date than the sale to complainant. He alleged facts tending to show that said/, fas. were satisfied.

<p>Injunction. Before Judge Buchanan. Heard County. At Chambers. January 30th, 1875.</p> <p>For the facts, see the decision.</p>

Warranty. Bond for title. Vendor and purchaser. Before George Hillyer, Esq., Judge pro hae vice. DeKalb Superior Court. September Term, 1874.

<p>1. The defendant was indicted for the offense of murder. The evidence introduced upon the trial was purely circumstantial. The following verdict was returned: “ We, the jury, find the defendant guilty, and that he be imprisoned in the penitentiary at the mercy of the court</p> <p>Held, that the verdict was not loo uncertain to be executed by the judgment of the court; that its legal effect was to restrict the court from inflicting any other penalty than imprisonment in the penitentiary for life, as prescribed by the statute.</p> <p>2. The verdict is supported by the evidence.</p>

Jury. New trial. Before Judge Gibson. Richmond Superior Court. April Term, 1874. This case was an appeal from the award of arbitrators appointed to assess the damages done to the estate of Benjamin PI. Warren by reason of the appropriation of certain lands belonging to said estate by the canal company. The canal company was, in fact, the mayor and council of the city of Augusta. The evidence is omitted as unnecessary to an understanding of any principle of law involved.

Criminal Jaw. Evidence. Confessions. Verdict. Before Judge Underwood. Coweta Superior Court. March Adjourned Term, 1874.' There was no evidence to show that the confession testified to by the witness Moses, referred to in the 'decision, was induced by hope of benefit or fear of injury. For the remaining facts see the decision.

Railroads! Trespass. Jurisdiction. Venue. Before Judge Gibson. Burke Superior Court. May Term, 1874. Carswell, as trustee, brought trespass against the Central Railroad and Banking Company, to recover damages for entry on his lands, cutting timber, moving earth, etc. The suit was instituted in Burke county, where the lands were located and the trespass was committed.

<p>Arbitrament and award. County matters. Before Judge Buchanan. Troup Superior Court. November Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

New trial. Practice in the Superior Court. Before Judge James Johnson. Muscogee Superior Court. May Term, 1874.- Benajah Peacock brought complaint against Peacock, Chapman & Company on a due-bill for $730 57, dated April 6th, 1871. The defendants pleaded part payment of $350 00, and set-off amounting to $388 61. The case came on for trial at the May term, 1873, when the jury relurned a verdict for the plaintiff for $8 51.

<p>Injunction. Before Judge Gibson. Burke county. At Chambers. February 11th, 1875.</p> <p>The above head-note sufficiently reports this case.</p>

<p>Where the evidence submitted to the chancellor upon the hearing of a motion for injunction was conflicting, his discretion, exercised in refusing the application, will not be controlled.</p>

<p>1. Where an, order was passed allowing the defendants thirty days after the adjournment of court within which to prepare a motion for a new trial, and to have the same allowed by the judge, and within which to prepare and have approved, or agreed to, a brief of the evidence, all of which was done within the time specified, but the judge, in passing upon the brief of testimony, ordered the same to be filed, the failure to file the motion and the brief cf the testimony in the clerk’s office within the thirty days, was not a valid ground on which to dismiss the motion.</p> <p>2. The judgment of the court below in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.</p>

Husband and wife. Principal and agent. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874'. An execution in favor of Smith & Company against S. T. & H. P. Wells was levied upon certain personalty as the property of H. P. Wells. A claim thereto was interposed by his wife, Ella S. Wells.

<p>Certiorari. New trial. Judgments. Before Judge Hill. Bibb Superior Court. October Term, 1874.</p> <p>This case is sufficiently reported in the decision.</p> <p>Nisbét, Bacon & Hines, by John C. Rutherford, for plaintiff in error.</p>

Contracts. Damages. Master and servant. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.

<p>Injunction. Receiver. Before Judge Hill. Bibb County. At Chambers. January 18th, 1875.</p> <p>For the facts, see the decision.</p>

<p>New trial. Charge of Court. Before Judge Hopkins. Fulton Superior Court. March Term, 1874.</p> <p>Reported in the decision.</p>

Charge of Court. Evidence. Witness. Non est factum. Before Judge James Johnson. Harris Superior Court. October Term, 1874. The note sued on was signed by the son of the testator for his father. The proof showed that the father was palsied, bed-ridden, and to a large extent imbecile. The executrix was the widow. The son denied the signature, but it was proven to be in his handwriting. He denied also any authority to sign. The consideration was shown.

<p>In a suit by a widow for the homicide of her husband, the record of the acquittal of the defendant, under an indictment for the murder of the husband, is not evidence for the defendant in the civil suit, and a plea of such acquittal is demurrable.</p>

<p>Scaling ordinance. Before Judge James Johnson. Stewart Superior Court. October Term, 1874.</p> <p>The above head-note reports this case.</p>

<p>The holder of a promissory note, believing it was paid off in a trade he supposed he had made with the principal, so informed the security, who knew nothing to the contrary for five years, when suit was brought on it:</p> <p>Held, that this conduct of the holder discharged the security.</p>

Criminal law. Assault and battery. Parent and child. New trial. Before Judge Pottle. Warren Superior Court. October Term, 1874. Neal was placed on trial for the offense of assault and battery. He pleaded not guilty.

Bankrupt. Sheriff. Execution. Judicial sale. Rule against officer. Before Judge Pottle. Wilkes Superior Court. May Adjourned Term, 1874. These cases were argued together. They are sufficiently reported in the above head-note.

<p>Where a libel for divorce was filed in 1859, with a schedule of the property of the parties, as required by the law then in force, but the issues were not in fact tried until after the adoption of the Code :</p> <p>Held, that it was competent for the jury to distribute the property between the parties and their children, as was authorized by the law previous to the adoption of the Code, and that a verdict that the wife “ should have a certain tract of land,” conferred upon her the fee simple title to said land and not a mere life estate.</p>

Trusts. Evidence. Ordinary. New trial. Confederate money. Before Judge Strozer. Calhoun Superior Court. September Term, 1874.

Evidence. Fraud. Insurance. Before Judge James Johnson. Muscogee Superior ‘Court. May Term, 1874. The policy stated that the premiums were payable annually on 23d of May. It was proposed to show that the first premium had been paid by a draft, payable in October, with interest from date, and ‘that the agent had said the other premiums might be so paid.

Guardian and ward. Trustees. Confederate money. Before Judge Bartlett. Greene Superior Court. September Adjourned Term, 1874. This was a suit calling on a guardian to account to his ward. The jury found for the defendant, and the judge granted a new trial. To this ruling defendant excepted.

<p>Railroads. Land. Damages. Actions. New trial. Before Judge Buci-ianan. Troup Superior Court. May Term, 1874.</p> <p>On December 26th, 1872, McLendon brought assumpsit against the Atlanta and West, Point Railroad Company for $10,000 00. In the first count, he alleged that the defendant was indebted to him $3,500 00 for the use and occupation of a right of .way through certain lands of his from February 1st, 1853, to December 20th, 1872. In the second count, he claimed the same amount as due him for the same causes on a quantum meruit. ' In the third, he alleged that on February 1st, 1853, the defendant took possession of a certain strip of land belonging to him, and has since occupied it as a right of way, and that it is of the value of $3,500 00; that the defendant has received and enjoyed the profits of said land and of the right of way, of the annual value of $200 00; that it refuses to deliver the said land to the plaintiff or to pay him the profits thereof.</p> <p>The defendant pleaded as follows: 1st. Title in itself to right of way by reason of twenty years’ possession thereof before suit brought; that for more than seven years before the commencement of suit it has used said right of. way without hindrance by the plaintiff or any one else. 2d. The statute of limitations as to all of plaintiff’s demand which accrued more than four years prior to suit brought. 3d. That plaintiff agreed to donate to the defendant said right of way, in consideration of the location and building of its road through his land.</p> <p>Evidence was introduced to show that the defendant took possession of the strip of land alluded to in the declaration for the purpose of grading, etc., in the latter part of the year 1851, or first of the year 1852, and had exclusive possession by its cars running thereover, in 1853, and had so held the same ever since. The value of such use and occupation was proven. It was shown that the land over which said right of way passed was in litigation at the time of the location of defendant’s road thereon, and so continued until the year 1856, when the plaintiff purchased the interests of the respective contending parties and took conveyances thereto. It was proven that the plaintiff was a director of the defendant from the time of the location of said road until February 26th, 1869. There was evidence to show that when the road was located the plaintiff liad said that if he obtained the title to the laud in litigation he would give the right of way to the defendant; and that he had frequently since said that he had given such right of way.</p> <p>There was much other testimony not material here. The jury found for the defendant. The plaintiff moved for a new trial upon the following, amongst other grounds :</p> <p>1st. Because the court erred in charging the jury “that if the defendant claimed title adversely to the plaintiff, to the right of way mentioned in the plaintiff’s declaration, and if the defendant’s possession was adverse to plaintiff’s title, the action for use and occupation cannot be sustained.</p> <p>2d. Because the court erred in charging the jury as follows: “If, while the title to the land xvas in others, the defendant occupied the same without their objection, and had been so in possession for years previous to the plaintiff’s purchase, and the plaintiff, after his purchase, made no objection to said right of way or interfered with the enjoyment thereof until it had been so occupied for seven years, he cannot afterwards set np title against the defendant as to the right to use said right of way.”</p> <p>3d. Because the court erred in refusing to charge the jury as follows : “ The plaintiff is not debarred of his action by the mere possession, use or occupation by the defendant of the right of way and land in question, unless it appears that the defendant has pursued the mode pointed out in its charter in relation to acquiring the right of possession and right of way.”</p> <p>4th. Because the. verdict was contrary to the law and the evidence.</p> <p>The motion was overruled, and the plaintiff excepted.</p>

Claims. Levy and sale. Estoppel. Landlord and tenant. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1874. A distress warrant in favor of John A. Broughton against William D. Durden, was levied on three bales of cotton, which were claimed by E. H. Cohen.

Executors and administrators. Judgments. Before Judge Tompicins. Chatham county. At Chambers. March 20th, 1875. Julia Guilmartin, John F. Guilmartin, ......

New trial. Newly discovered evidence. Before Judge Buchanan. Troup Superior Court. May Term, 1874. On October 21st, 1861, Vivian Holmes brought assumpsit against Joseph Boone on a-promissory note, dated April 8th, 1861, payable to H. Holmes or bearer, six months after the date thereof, for $568 63. Bail process was sued out, and the defendant arrested. Marshall B. Grady and William H. Clark became securities for his appearance.

<p>1. The lien of a factor for provisions and commercial manures furnished to a planter to enable him to make a crop, as authorized by the act of 1866, is superior, so far as said crop is concerned, to a judgment against the planter dated before the advance of the factor, or even before the act of 1866.</p> <p>2. When a factor has a lien for supplies, under the act of 1866, upon the growing crop of a planter,'made in 1872, and the planter, in the fall and winter succeeding, 'delivered at the warehouse of A B nineteen bales of cotton, with instructions to sell and apply the proceeds to debts of C and D, and the balance to a lien debt due the factor for 1871, which was so done by the warehousemen, and subsequently the planter delivered' to said ■ warehousemen nineteen other bales, both lots being of the crop of 1872, with instructions to sell and apply the proceeds to payment of the factor’s lien of 1872:</p> <p>Held, that proof that the warehousemen were the general agents of the factor does not render the transaction, as to the first nineteen bales of cotton, such a fraud upon the judgment creditors of the planter as to postpone the factor’s lien upon the second nineteen bales of cotton to judgment liens against the planter.</p>

Parties. Bond for titles. Vendor and purchaser. Before Judge Kiddoo. Terrell Superior Court. November Term, 1874. To report this case would simply be to repeat the above head-note.

Criminal law. New trial. Newly discovered evidence. Before Judge Kiddoo. Miller Superior .Court. October Term, 1874. Widener was placed on trial charged with being a common cheat, in this that he, on December 1st, 1873, did put ten pounds of water into a bale of ginned cotton, with the intent to increase the weight of said cotton, and to sell the same, and that he afterwards did sell the same to one F. M. Platt. The defendant pleaded not guilty.

Equity. Subrogation. Bonds. Before Judge Hill. Glynn Superior Court. May Adjourned Term, 1874. The Brunswick and Albany Railroad Company, on October 1st, 1869, executed a deed conveying to the treasurer of the state of Georgia all its property, in trust to secure said state from liability on certain bonds of said road which it had indorsed in accordance with the provisions of an act of the general assembly.

<p>Equity. Parties. Notice. Taxes. Municipal corporations. Constitutional law. Charter. Before Judge Harris. Glynn County. At Chambers. January 19th, 1875.</p> <p>N. S. Finney et al. filed a bill against Jacob E. Dart et al., making the following averments: Defendants, assuming to act as mayor and council of the city of Brunswick, passed an ordinance on the 3d day of July, 1874, entitled “An ordinance to provide for the current expenses of the city of Brunswick, the payment of the past due coupons of said city, and the retiring of the city currency.” It provided that a tax of one and three-fourths per cent, be levied upon all the property within said city, for the purposes thereinafter set forth, for the year 1874. It then proceeded as follows : “Sec. 2d. Be it further ordained, That one-half of one per cent, of the tax above levied be appropriated to the cancellation of the coupons due by the city previous to the 1st July, 1874; that one-half of one per cent, of the said tax be appropriated to the payment of the current expenses of the municipal government of said city ; and that three-fourths of one per cent, of said tax be appropriated to the retiring of the currency of said city or due bills issued for the retirement of said currency.” Section 3d required the treasurer to open his books for tax returns immediately, and close them on the 4th of August, 1874. Section 4th required the treasurer to keep three separate accounts, according to the distribution aforesaid, and authorized him to receive one-half of one per cent, of each tax payer’s taxes in past due coupons or legal curreney, for the purpose of canceling coupons as aforesaid, and one-half per cent, in approved accounts or legal currency, for defraying the current expenses of the municipal government, and three-fourths per cent, in due bills issued for the redemption of city currency, and forbade him from paying out any portion of the money, except as therein appropriated. Section 5th declared the first quarter of the taxes payable on or before the JOtli of August, 1874; the second, on or before the 20th August, 1874; the third, on or before the 18th September, 1874; and the fourth, on or before the 1st October, 1874. The 6th section required the treasurer to issue executions without delay for the full amount of the taxes due for the year against any defaulter failing to pay promptly either installment as aforesaid.</p> <p>The last section repealed all conflicting ordinances. This ordinance was approved July 3d, 1874.</p> <p>On the 10th October, 1874, G. O. Fahm, assuming to act as clerk and treasurer of the city of Brunswick, under an election to said office by said pretended mayor and aldermen, acting collectively as the mayor and council of the city of Brunswick, issued the following notice to the tax-payers :</p> <p>“notice to tax payees.</p> <p>“The treasurer’s books will be finally closed on the 20th instant for the collection of city taxes for the year 1874, and for all taxes unpaid executions will issue against the property of those failing to settle all taxes due, and be placed in the hands of the marshal for collection.</p> <p>(Signed) “G. C. Eahm, Treasurer.</p> <p>“October 10th.”</p> <p>This notice was published once in the Brunswick Seaport Appeal. Between the 20th October, 1874, and December 5th, 1874, the pretended clerk and treasurer issued tax fi. fas. against complainants, which were levied on their property by one B. A. Fahm, assuming to be marshal of the city of Brunswick, under an election by said pretended mayor and council of Brunswick, who advertised said property for sale on the first Tuesday in January, 1875.</p> <p>All the foregoing acts are void, because they were done under an act to consolidate and amend the several acts incorporating the city of Brunswick, and for other purposes therein mentioned, approved August 27th, 1872, and published in acts of 1872, page 151. The said act is void, because the 59th section provided for its submission to the legal voters of the city of Brunswick for adoption or rejection, and provided that if they rejected it the act should be void. This was an attempt by the legislature to delegate to the voters of Brunswick the power to repeal or to make a law.</p> <p>Said ordinance is void, because it does not provide for the collection of the city tax in quarterly installments, as required by the charter; and said charter makes the fiscal year commence on the first Monday in January, annually, and no ordinance could have been passed for a quarterly collection of taxes after the first quarter of the fiscal year.</p> <p>Said executions were null and void because issued before the treasurer had given thirty days notice of the closing of his books, as required by said charter.</p> <p>The ordinance was further void, because it attempted to levy a tax of one and three-fourths per cent., in violation of the act approved February 28th, 1874, entitled an act to limit and regulate the assessment and collection of taxes by municipal authorities in this state, except so far as relates to the city of Savannah, published in the acts of 1874, page 109. Complainants prayed for an injunction against said fi. fas.</p> <p>The bill was sworn to by W. E..Stewart, as agent for three of the complainants. The chancellor issued a temporary injunction, with an order to show cause, on the 12th of January, 1875, why the injunction should not be made permanent. The bill was served upon said marshal in person, and upon said mayor and council by leaving a copy with said clerk and treasurer.</p> <p>The defendants demurred to the bill upon the ground that it contained no equity for relief as against the defendants, because defendants were not proper parties, but the mayor and council of Brunswick were the parties who should have been defendants; because complainants had an adequate remedy at law, and because the bill was argumentative.</p> <p>Eor further cause why the injunction should not be perpetuated, an answer was filed, in brief, as follows: These defendants were mayor and council, and said clerk and marshal were elected, said ordinance, passed, said assessment made, and said fi. fas. were issued and levied by virtue of said act of 24th August, 1872. Said act is valid and of force, and authorized all the acts aforesaid. Jacob E. Dárt is no longer mayor of Brunswick, and W. H. Rainey, C. G. Moore and W. Dart, Jr., no longer aldermen, and are not now assuming to act as such, aud have nothing to do with said executions. They say the ordinance is legal, because the charter does not provide that the collection of taxes shall be made quarterly, in point of time, but in quarterly install! ments of amount. Said executions' are not void for want of thirty days’ notice of the closing of the treasurer’s books, because said notice was published for thirty days before issuing executions, by posting the same at the door of the city hall. Said ordinance is not opposed to said act of February 28th, 1874; and if it is, it is not void, because said act is a general act, and does not change the provisions of said charter, which is a special act. They further objected that the bill was not sworn to by a competent person, as required by law.</p> <p>All the averments in the answer were proven by certified extracts from the minutes of said mayor and council, and by affidavits of the assessors, of the clerk and treasurer, and of the marshal.</p> <p>The injunction was made permanent, and the defendants excepted.</p>

<p>1. An account for cross-ties delivered under a contract, the whole being due, is an entire demand, incapable of division for the purpose of bringing separate suits therefor.</p> <p>2. Where an action is brought for a part of such an account and judgment obtained, and subsequently another suit is brought for an alleged residue of the account, it is not a sufficient reply to a plea of former recovery that the plaintiff did not know, pending the first suit, the whole number of ties furnished, it appearing that he was all the while in possession of the means of ascertaining all the facts and, what his entire claim was, and that his want of knowledge was from his own fault and negligence.</p>

<p>The charter of a municipal corporation gave it power to levy taxes, thus: “Full power and authority to levy and collect an annual tax of not exceeding one 'per centum upon the value of all property within the corporate limits of whatever kind, real or personal, which is or may be subject to taxation by the laws of this state : ”</p> <p>Held, that under this charter it was competent for the mayor and council to ex.empt certain property from taxation altogether, provided that the tax laid be ad valorem and uniform-upon every species of property taxed, as provided for by article I., section 27 .of the constitution of the state.</p>

Husband and wife. Judgments. Lien. Evidence. Debtor and creditor. Before Judge Hall. Rockdale Superior Court. February Term, 1874. On August 26th, 1874, an execution in favor of John A. Bruce, for use, etc.', against Archibald Scott and Samuel Hjjl, principals, and Milton Wauldrop, indorser, based on a judgment obtained in the justice court for the four hundred and seventy-sixth district, on November 4th, 1865, was levied upon certain land as the property of Samuel Hill.

<p>Scire facias. Judgments. Presumptions. Before Judge Rice. Rabun Superior Court. October Term, 1874.</p> <p>The above head-note sufficiently reports this case.</p>

Illegality. Judgments. Before Judge Buchanan. Campbell Superior Court. August Adjourned Term, 1874. William Baker recovered a judgment against George Peters in the justice court for the twelve hundred and sixth district. To the execution issued thereon the defendant filed an affidavit of illegality, setting up that he had never been served, nor acknowledged service, nor authorized any to acknowledge service for him.

<p>Wills. Administrators and executors. Equity. Waste. Before Judge James Johnson. Harris Superior Court. October Term, 1874.</p> <p>For the facts, see the decision.</p>

<p>In 1863 John A. Wilkins hired to defendants certain negroes, and about the same time sold to them a wagon and mules, and lent to them $2,000 00.</p> <p>At the time, the defendants were under a contract to deliver to the Confederate government all the ore they should make, and to cast guns and make shell for said government, and were engaged in building a furnace to make iron under their contract, and Wilkins knew that the property he let defendants have was to be used in constructing said furnace and carrying out said contract. In 1867 the parties met, and the defendants gave to Wilkins the notes, amounting together to about half the amount due on the unpaid contract, due one at nine and the other at eighteen months after date, which upon their face expressed that they went in settlement of the notes taken in the transaction of 1863, and for deficiency of clothing:</p> <p>Held, that, under the evidence, it did not appear that the notes taken in 1867 were without consideration, and that a verdict for the plaintiffs was not illegal.</p>

<p>Equity. Compromise and settlement. Mistake. Before Judge McCutchen, Whitfield Superior Court. October Term, 1874.</p> <p>Spriggs filed his bill against Bromblett, making, in brief, this case-:</p> <p>On the first Tuesday in December, 1868, he purchased a certain lot of land, situated in the town of Dalton, at sheriff’s sale, it having been levied on under an execution against one Fischer. He paid the amount of his bid and took a sheriff’s deed to the same. Subsequent to this, he was assured by the defendant and his counsel that the judgment on which the execution issued, by virtue of which this sale was made, under the decisions of the supreme court, was dormant. The defendant, who had purchased from Fischer, after the date of the judgment, but before the sale, brought ejectment against him for the property. Pending this suit, relying upon the assurances of the defendant and his counsel as to the dormancy of the aforesaid judgment, he surrendered the possession of the lot and executed to the defendant a quit-claim deed. He has since discovered that said assurances, upon the faith of which he acted, were untrue, and having conveyed away the title to his property for no consideration whatever, under a mistake of law induced as above set forth, he prays that the deed may be set aside.</p> <p>The answer of the defendant admitted all of the allegations of the bill except those as to the complainant having acted upon his assurance and those of his counsel, as to the judgment referred to in the bill being dormant.</p> <p>The evidence showed that both parties believed the judgment to be dormant at the time the settlement was made; that the defendant yielded his claim for mesne profits in' the ejectment suit. There was no testimony that the complainant acted upon the assurances of the defendant or his counsel as to the law, in surrendering the land and executing the deed. He went to the defendant to surrender the land on- his own motion, but at the request of the latter’s counsel also executed the deed.</p> <p>The jury found for the complainant. The defendant moved for a new trial because the verdict was contrary to the law and the evidence. The motion was sustained, and the complainant excepted.</p>

Warranty. Deeds. Trusts. Sales. New trial. Immaterial error. Before Judge Underwood. Floyd Superior Court. July Adjourned Term, 1874.

Homestead. Purchase money. Before Judge Underwood. Walker Superior Court. August Adjourned Term, 1874. On April 29th, 1874, an execution in favor of Cumpton against one Harvey R. Sparger and J. M. Bond, indorser, for $400 00 principal, besides interest and cost, based on a judgment rendered at the April term, 1874, of Walker superior court, was levied upon certain lands as the property of said Sparger. A claim was filed by Mary A. Sparger, the wife of the defendant.

Practice in the Superior Court. Judgments. Relief act of 1868. Before Judge Bartlett. Morgan Superior Court. September Term, 1874. The two cases above stated were argued and decided together. This report will be confined to tire first, which was before this court at a former term: See 50 Georgia Reports, 614. The facts of the second are identical, so far as they affect the principles involved.

<p>A bought land of B, giving note for the purchase money; possession of the land was to be given immediately. The tenant in possession refused to go out, and A only got possession of part of the land until the year thereafter. In a suit on the notes by B, A sought to recover the damages for the nondelivery of possession. B put up the tenant to show that he had retained possession under an agreement with A’s agent. On cross-examination, A's counsel asked the witness if he had set this up in the proceedings taken against him by B to turn him out, and the court ruled that the “ proceedings ” must be produced and refused to permit the question to be asked:</p> <p>Held, that this was error. The question and answer were necessary as a foundation to introduce the “proceedings.” They were inadmissible until the witness had an opportunity to explain.</p>

Criminal law. Venue. Continuance. Practice in the Superior Court. Jury. New trial. Courts. Before Judge Buchanan. Coweta Superior Court. March Adjourned Term, 1874. Brinkley was placed on trial for the murder of his wife, alleged to have been committed on May 13th, 1874. The defendant pleaded not guilty. The evidence disclosed a most aggravated case of murder. The jury returned a verdict of guilty.

<p>1. Under sections 3408 and 3409 of the Code, an action against an insurance company must be instituted in the county where its principal office is located, or where it has an agency .or place of doing business when suit is brought, and which agency or place of doing business was located in such county at the time the cause of action accrued or the contract was made, out of which the cause of action arose.</p> <p>2. A party held a fire policy issued in the county of Bibb from an agency of the Empire State Insurance Company, whose chief office was and is in Richmond county. Afterwards, the Georgia Home Insurance Company, located in the county of Muscogee, purchased from the former its insurance business, received its assets and assumed the payment of its indebtedness due or to become due on its policies. No contract was made by the latter company with the holder of the policy, and nothing occurred to establish any relation between them, or to give the person assured any claim on the company except such equitable rights as he might have 'growing out qf the contract between the two corporations. The house insured was located in Twiggs county, and the loss occurred after the companies had bargained, as stated. An action on the policy was brought in the county of Bibb against . both companies jointly — the Home only having an agency or place for doing business in that county. Service on the Empire Company was made by leaving a copy of the writ at the place where its agency was when the policy issued:</p> <p>Held, that such action cannot be maintained against the Empire State Insurance Company, as it had no agency or place of doing business in the county of Bibb when suit was commenced; and this being so, it cannot be sustained separately against the Home Insurance Company, as there was no such privity or relation between it and the assured which would entitle him to a separate action against said company on the contract made between the two corporations.</p>

<p>A bill was filed by certain stockholders in a railroad company to enjoin it from the payment of interest on the bonds of another company which it indorsed, and also from purchasing or consummating the purchase already made of the road of the latter company, which was sold under a decree obtained by the former, on the ground that such acts were tdtra vires and a fraud on complainants. There was no charge that the complainants were ignorant of the indorsements which had been acted on, and on which payments of interest had been made for nearly five years, nor that they were ignorant of such payment, except that they could not give the amount of the bonds, nor the length of time the interest had been paid. The answer states that-the contract under which the indorsements were made, was duly put on the minutes of the directors; that there was no secresy in the matter, and all the facts were generally known, and could have been ascertained by any stockholder on inquiry or examination of the books or minutes; that before the bonds were indorsed a report was made to a convention of stockholders setting out that it would be necessary to give guaranties and incur liabilities in behalf.of such other company, and the object to be thereby attained was approved by resolution, and the president authorized to do all acts necessary to promote that object. The bill does not charge that complainants did not know of the sale and intended purchase; nor that they did not receive the notice sent them of such contemplated action; nor that they were ignorant of the suit instituted by their own company, in which the decree had been rendered. That suit was for the purpose of recovering the interest which the defendant company had paid, and to protect it against loss on account of its further liability on the indorsed bonds. The legislature had authorized the purchase, which had been made before the bill was presented, though not reported to and confirmed by the court directing the sale:</p> <p>Held-, that the chancellor did not abuse his discretion in refusing the injunction.</p>

<p>Criminal law. Seduction. Fornication. Before Judge Underwood. Gordon Superior Court. August Term, 1874.</p> <p>Hopper was indicted for seduction as follows: “For that the said Joseph L. Hopper, in the county and state aforesaid, on March 1st, 1872, did then and< there by persuasion and promises of marriage, and by other false and fraudulent means, seduce one Sarah A. Guy, a virtuous unmarried female, and did then and there, by the means aforesaid, induce her to yield to his lustful embraces, and allow him to have carnal knowledge of her, contrary to the laws of said state,” etc. The defendant pleaded not guilty. The jury found him guilty of fornication. A motion for a new trial was made upon the following grounds, to-wit:</p> <p>1st. Because the court erred in charging the jury “that although the indictment did not allege that the defendant was a' single man, yet if the proof satisfied them that the defendant was a single man, and that Sarah Guy, the prosecutrix, was a single woman, and that the defendant had been guilty of having had illicit intercourse with her at any time within two years next preceding the preferring the bill of indictment, then th,ey would be authorized to find the defendant guilty of fornication, this indictment being a good indictment for seduction, and unobjected to,on that ground.”</p> <p>2d. Because the court erred in refusing to charge the-jury, “that the defendant could not be found guilty of fornication unless the same was alleged in the bill of indictment, and sustained by the testimony.”</p> <p>3d. Because the court erred in allowing the state to prove that the defendant was a single man over the objection of defendant, it not being alleged in the indictment that he was a single man.</p> <p>The motion was overruled, and the defendant excepted.</p>

<p>i. One-half of the judges of the superior courts of this state, under art. v., section 3, of the constitution of 1868, at their first appointment, whether for circuits created since the adoption of said constitution or before, must be commissioned, as near as may be, for four years, and the other half for eight years.</p> <p>2. Where the governor has exercised his constitutional power of appointment, which has been confirmed by the senate, and the appointee commissioned as judge of the superior court for the term of four years, his power was exhausted, and it was not competent for him to recall that commission and to appoint such judge for the term of eight years.</p>

Garnishment. Municipal corporations. Before Judge ¿night. Cobb Superior Court. November Term, 1874. McLellan recovered a judgment against Young on an'ac-. count for provisions furnished to him and his family. .Process of garnishment was served on the Mayor and City Council of Marietta. The defendant' was an officer of said garnishee, being the marshal of the city of Marietta, receiving a salary of more than $500 00 per annum, payable monthly.

<p>1. The act of the 24th of August, 1872, under which the Central Railroad and Banking Company'and the Macon and Western Railroad Company were consolidated under the name and charter of the former company, created a new corporation for the specific purposes therein declared, and as no time was specified in the act for its continuance, it would not expire, under the general law of the state, for thirty years.</p> <p>2. The fact that all the rights, privileges, etc., of the Central Railroad and Banking Company, as specified in its charter of 1835, were conferred upon the new company by general reference thereto in the act of August, 1872, does not cause such grant to operate as if made in the former year. The legal effect is the same as if such rights, etc., had been specifically enumerated in the latter act, and the right of withdrawal was therefore reserved to the state under the i682d section of the Code, in view of the provisions of which said new charter was accepted.</p> <p>3. By act of 1856, the union and consolidation of the Southwestern and the Muscogee Railroad Companies, under the name and charter of the former company, was authorized. The 5th section provided that such act should not become operative until accepted by the stockholders. This acceptance, and the consolidation, took place in 1868 :</p> <p>Held, that the contract between the state and such new company was not consummated until 1868, and was therefore entered into in view of the provisions of the i682d section of the Code, reserving to the state the right to withdrdw the franchise.</p> <p>4. The Augusta and Savannah Railroad Company, standing upon its original charter as it was granted and accepted prior to the adoption of the Code of 1863, the state could not, by the act of 1874, withdraw any of the franchises granted to that compaiiy, without impairing the obligation of her contract with it, she not having reserved the right to do so when the contract was made. The i682d section of the Code of 1863, not being a part of the public law of the state at that time, did not enter into and constitute a part of the contract between the state and that company.</p>

<p>1. By the original charter of the Georgia Railroad and Banking Company it was, in terms, provided that “ the stock of said company and its branches, shall be exempt from taxation for seven years from the completion of said railroads, or any one of them, and after that, shall be subject to a tax of not exceeding one-half of one per cent, per annum on the net proceeds of their investments:”</p> <p>Held, that under the settled rules of construction, it was competent for the legislature to grant this exemption, and forming, as it does, a portion of the contract of incorporation, any repeal of it by the legislature, without the consent of the corporation, is in violation of article I, section 10,paragraph I of the constitution of the United States prohibiting any state from passing any law impairing the obligation of contracts.</p> <p>2. None of the acts of the legislature of this state which have been accepted by the Georgia Railroad and Banking Company, passed since the adoption of the Code, have brought said charter, so far as its investments in said road and its necessary incidents are concerned, within section 1636 of said Code of 1863.</p> <p>3. The tax act of 1874, taxing the railroads of this state upon the property belonging to them, as other property of the citizens of this state is taxed, is, so far as the Georgia Railroad Company is concerned, as to its railroad and appurtenances, unconstitutional and void.</p> <p>4. Bonds and other property of said company not forming any part of the railroad or its appurtenances, are subject to taxation as the property of other citizens.</p>

<p>Í. Under the guarantees of the first and eleventh sections of the act of October 24th, 1870, authorizing the lease, of the Western and Atlantic Railroad, the Western and Atlantic Railroad Company, though made a body corporate by said act, by virtue of the contract of lease when accepted by the governor and recorded, is not liable to a tax greater than one-half of one per cent, on the net income of the company.</p> <p>2. By the eleventh section of said act, it is taxable to that extent.</p>

Criminal law. Principal in the second degree. New trial. Before Judge Clark. Lee Superior Court. March Term, 1874. The principle involved in this caséis so succinctly stated in the above head-note that a report is deemed unnecessary.

Criminal law. Rape. Before Judge Clark.- Lee Superior Court. November Term, 1874. The court, in this case, was requested to charge the jury that before the defendant could be convicted of the crime of rape, they ought to be satisfied from the evidence that the vagina was entered; that the mere entering the vulva would not be a sufficient penetration if the vagina was intact and not penetrated in the least.

<p>X. A power in a mortgage to the mortgagee to sell the property mortgaged on the failure of the mortgagor to pay the debt, at its maturity, is a lawful power under the laws of this state, and is irrevocable; and if the mortgage be duly recorded, it may be exercised as against the mortgagor, and those claiming under him, either by deed, or as purchasers at a judicial sale, under process to which the mortgage is superior in its lien.</p> <p>2. If there be no time, place or terms of sale, prescribed in the power of sale, the sale ought to be as provided by law, in cases of trustees’ sales, but if there be a provision that the mortgagee shall advertise the time, place and terms of sale, in a prescribed newspaper, this is in effect an authority to the mortgagee to fix the time, place and terms.</p> <p>3. Where one in failing circumstances made a mortgage, with a power of sale, on which he procured money to be Ibaned to him, and the power of sale provided that if the property brought at the sale more than the debt, the surplus was to be returned to the mortgagor:</p> <p>Held, that this was not such a reservation of a trust or benefit to the mortgagor as made the mortgage and power of sale fraudulent, even if the mortgagee knew that the mortgagor was of doubtful solvency. And a charge of fraud, based on such facts, does not make out a prima facie case.</p>

<p>i . Where land was settled on a trustee for the use of the wife and family of A, and at the death of A and wife, to their children, and A, purporting to act as “ trustees of his wife,” sold the property to B:</p> <p>Held, that on the trial of a bill filed by the children against B’s executor, to t recover the property, A is a competent witness to show that B knew the truth as to the trust and its nature, and acted with full knowledge thereof; nor does the death of B render A incompetent, since the issue on trial is not any contract between A and B.</p> <p>2. In this state, if one buy land and go into possession thereof, with a full knowledge, in fact, that this vendor has no right to sell, and no title to convey, this is evidence to go to the jury, upon the question of the bona jides of his possession.</p> <p>3. As, in our judgment, the evidence of Weems was both competent and material, and had it-not been ruled out, would have made a case proper to be submitted to the jury on the bona jides of Wiley’s possession, we think there ought to be a new trial.</p>

Mandamus. Practice.before the Supreme Court. January Term, 1875. At the May term, 1874, of Chatham superior court, Judge James Johnson presiding, Platen asked a mandamus against William J. Clements, clerk of said court, requiring him to enter a motion for a new trial in the case of Charles G. Platen vs. Richard D. Arnold, upon the docket. The mandamus was refused.

Certiorari. Statute of limitations. New trial. Before Judge James Johnson. Chatham county. At Chambers. June 25, 1874. At the May term, 1873, of the city court of Savannah, the above stated cause was tried, and resulted in a verdict in favor of the plaintiff, Suiter. Roach brought said cause, by writ of error, to this court. All the errors complained of may be comprised in the two general grounds that the verdict was contrary to the law and the evidence.

<p>Damages. Before Judge Knight. Cobb Superior Court. November Term, 1873.</p> <p>A report of this case is unnecessary.</p>

Mortgage. Statute of limitations. Judgments. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1874. The mortgage in this case was executed' on May 7th, 1860. Proceedings to foreclose were instituted on May. 7th, 1870. Claimant’s testator acquired title to the property in controversy after the execution of the mortgage but before the commencement of the proceedings to foreclose. She sought to set up the statute of limitations of March 16th, 1869.

Administrators and executors. Year’s support. Evidence. Notice. Before Judge Bartuett. Baldwin Superior Court. August Term, 1874.

Municipal corporations. Damages. Officers. Before Judge PIill. Bibb Superior Court. April Adjourned Term, 1874. Cook brought case against the Mayor and Council of the City of Macon for $20,000 00 damages, alleged to have been sustained by reason of his illegal arrest by a police officer of said city. The defendant pleaded the general issue. A verdict was returned for the plaintiff for $500 00.

<p>Judgments. Verdict. Attachment. ' Before Judge Hill. Bibb Superior Court. October Term, 1874.</p> <p>The facts of this case are fully stated in the above head-note.</p>

<p>I. H. & M. carried on a hotel, in partnership, for three months, M. owning the house and furniture. At the end of this time H. leased the house from M. and bought the furniture, giving his notes for $10,000 00 therefor. H. alleging that he had been deceived as to the value of the furniture, the parties had a settlement, at which $2,000 00 was taken off the price, H. credited with a sum which had been paid, and new notes were taken for the balance. Afterwards, and after H. had used the furniture nearly three years, M., by H’s consent, when the lease had not expired, leased the house and sold the furniture on hand to W., M. agreeing to settle with H.:</p> <p>Held, that on a settlement M. is only chargeable with the value of the furniture at the time of the sale to W.</p> <p>2. When on the trial of a bill filed by H. against M. for a settlement, M. had sworn that at the time the $2,000 00 was deducted from the original $10,000 00, and certain payments allowed and new notes given, all accounts and demands then existing between the parties were included, and H. contradicted this and set up that M. owed him on the partnership matter, it was error in the Court to refuse to permit the counsel of M., in his argument to the jury, to discuss the rights of the parties under the settlement, and force him to elect whether he would stand by it or go behind it.</p>

<p>Damages. Lease. Landlord and tenant. Before Judge Hill. Bibb Superior Court. April Term, 1874.</p> <p>This case is sufficiently reported in the above head-note.</p>

Corporations. Charter. Practice in the Superior Court. Usury. ' New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1874. One of the questions presented by the record in this case was whether the defendant>in error was a corporation.

<p>When a proceeding was had in 1869, to reduce a judgment under the act of 1868, and the plaintiff in the original judgment took issue on the defendant’s grounds, and that issue was tried by a jury, who reduced the judgment, and the plaintiff entered up a new judgment founded on this verdict, caused execution to issue, and had property sold thereunder, and participated in the proceeds, and afterwards, in 1873, moved to.set aside the judgment entered up by him in 1869, on the ground that the pleadings on said motion to reduce, showed no legal ground for reduction, and that the judgment was therefore illegal:</p> <p>Held, that having tendered an issue upon the defendant’s motion, and gone to the jury on such issue, and accepted the verdict by entering up judgment thereon, etc., he is too late, after the lapse of three years, to object to the sufficiency of the motion.</p> <p>Warner, Chief Justice, dissented.</p>

Trustees. Estoppel. Mistake. Equity. Before Judge Hopkins. Fulton Superior Court. March Term, 1874. Though the bill charged that the draftsmen of the deed made a mistake in drawing the deed, yet the evidence showed that the deed was drawn under the direction of the wife and husband. The remaining facts are stated in the above head-note. McConnell & -Heyward, for plaintiff in error.

<p>Equity. Jurisdiction. Venue. Judgments. Courts. Decrees. Amendments. Illegality. Before Judge McCutchen. Chattooga Superior Court. September Term, 1874.-</p> <p>For the facts, see the decision.</p>

<p>Sales. Pleadings. Before Judge Jambs Johnson. Talbot Superior Court. September Term, 1874.</p> <p>Report unnecessary.</p>

<p>Homestead. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1874.</p> <p>For the facts of this case, see the decision.</p>

<p>Parent and child. Torts. Damages. Befpre Judge Hopkins. Fulton Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>Executions. Evidence. Presumptions. Before Judge Knight. Cobb Superior Court. November Term, 1874.</p> <p>For the facts of this case, see the opinion.</p>

<p>Railroads. Torts. Presumption. Before Judge TomPtkins. Chatham Superior Court. February Term, 1875. 0</p> <p>Reported in the opinion.</p>

Vendor and purchaser. Warranty. Deed. Land. Before Judge Hall. Rockdale Superior Court.' March Term, 1875. Stephens brought case against Hudson for $360 00, be.- . sides interest, alleging that the defendant had sold to him one hundred acres of land at $10 00 per acre; that after payment therefor he discovered there were but sixty-four acres in the tract; that the defendant falsely represented, and warranted, that there were one hundred acres in the tract sold.

<p>1. There is no provision of law for taking a second or supplemental homestead, although the one already taken be of less value than the maximum allowed by law.</p> <p>2. If the head of a family, after securing homesteád in realty and personalty, according to the act of 1868, sell the same (the personalty, by his own individual contract, without the co-operation of his wife and without consent of the ordinary,) and invest the' proceeds in lands, taking title to himself, a court of equity will not, at his instance, enjoin his judgment creditor from levying upon and selling the lands as his property, on the ground that he has an application pending to set such lands apart as ahomestead, or on the ground that-they are the proceeds of a prior homestead.</p>

<p>Where D. was in the1 peaceable possession of a field, his son engaged in plow ing oats therein, and M. came into the field with five or six men at first, two remaining to the end, and pulled down the dividing fence between D. and M., and set it up within the field where the oats were sowed, and retained possession of the part so fenced off — the son of D. being alone:</p> <p>Held, that the conduct of M. evinced a sufficient show of force to entitle D. • to the summary remedy of forcible entry and detainer.</p>

<p>Garnishment. Before Judge Clark. Lee Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

New trial. Newly discovered evidence. Before Judge Hall. Rockdale Superior Court. October Term, 1874. Eiswald brought trover against Shipley for two sorrel horses and a two-horse wagon and double harness, alleged to be of the value of $360 00, and worth $3 00 per day for hire. The defendant pleaded the general issue.

<p>Practice in the Supreme Court. Practice in the Superior Court. Promissory notes. Contracts. Consideration. Before Judge Strozer. Mitchell Superior Court. November Term, 1874</p> <p>. Reported in the opinion.</p>

<p>Where the defendant to a libel for a divorce, by his answer, asked for a divorce in his favor, he is entitled to introduce evidence in support of 'his allegations, notwithstanding the fact that the libellant may fail to make oht a prima facie case in her favor.</p>

<p>Contracts. Evidence. Promissory notes. Before Judge Wright. Dougherty Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Laws. Presumptions. Construction of statutes. Husband and wife. Homestead. Debtor and creditor. Deeds. Before Judge Pottle. Wilkes Superior Court. May Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. This court is inclined to the,opinion that the right of stoppage in transitu in the vendor is superior to the lien of an attachment against the vendee, which was levied upon the goods sold before they reached their destination.</p> <p>2. Where goods were obtained from the claimants by fraud, no title passed, and the right of the vendors to retake the same by a claim is superior to the lieti of an attachment against the vendee levied at the instance of one of • his creditors.</p>

Bankrupt. Homestead. Former recovery. Before Judge Pottle. Hancock Superior Court.. Aju’il Term, 1875. At the- October term, 1866, of Hancock superior court, Rushin recovered a judgment against Gause for $362 50 principal, besides interest and costs, purchase money for land. On September 1st, 1874, the execution based on this judgment was levied upon the land for which the debt was contracted.

<p>Administrators and executors. Pleadings. Abatement. Presumptions. Judgments. Amendments. Before Judge Hopkins. Fulton Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Judgments. Exceptions. Interest. Before Judge Tompkins. Chatham Superior Court. February Term, 1875.</p> <p>Reported in the decision.</p>

<p>Husband and wife. Debtor and creditor. Judgments. Judicial sale. Notice. Before Judge Pottle. Hancock Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Homestead. Equity. Money rule. Subrogation. Judgments. Parties. Before Judge James Johnson. Talbot Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. 'A partnership was entered into in September, 1866, between V.-and K., by the terms of wbich V. was to purchase for the firm the stock of goods upon which the business was to be transacted, K. was to sell the same, paying over the proceeds to V. until the first cost was refunded, and the profits were to be divided between them. K. died in February, 1870. Before administration upon his estate, his widow and V. agreed upon three persons to examine into the condition of the partnership. They reported that K. had overdrawn his proportion of the profits.$886 43. After administration suit was brought by V. for this amount and judgment recovered. Execution was levied upon the property of K. which was claimed by his widow as her homestead exemption under the constitution and act of 1868:</p> <p>Held, that the liability of K. to V., upon which the judgment was obtained, was based upon the contract made in 1866, and not upon the accounting had in 1870.</p> <p>2. That a creditor advised the widow of his debtor to have a homestead set apart in the property of the deceased, does not estop him from levying upon the same for the satisfaction of a debt to which it may be subject.</p>

Ejectment. Deeds. Mortgage. Usury. Pleadings. Equity. Evidence. Custom. Before Judge Knight. Cobb Superior Court. November term, 1874. This case was tried before Judge Underwood. The motion for a new trial was heard by Judge Knight. The facts are sufficiently stated in the opinion.

<p>Practice in the Superior Court. Contracts. Evidence. Money rule. Attorneys. Claim. Before Judge James Johnson. Talbot Superior Court. March Term, 1875.</p> <p>Reported in.the opinion.</p>

<p>Husband and wife. Alimony. Before Judge Rice. Gwinnett county. At Chambers. June 26th, 1875.</p> <p>A report of this case is deemed unnecessary.</p>

<p>Bill of exceptions. Practice before the Supreme Court. July Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Criminal law. New trial. Newly» discovered evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Where a widow was entitled to dower or a child’s part in certain land, and she remained in possession of the same until long after her right to dower was barred, without making any election, the legal presumption is that she elected to take a child’s part, and this is especially true where such course was manifestly the most beneficial to her interest. v</p>

<p>New trial. Before Judge Hopkins. DeKalb Superior Court. March Term, 1875.</p> <p>A report of this case would illustrate no principle of law.</p>

<p>Debts due prior to the constitution of 1868, are in the nature of an incumbrance upon the" homestead, like purchase money or money expended for improvements thereon, and when the homestead is sold' and the money brought into court by virtue of such old debts, the old debts, though the judgments thereon be younger than judgments or liens on debts since the constitution of 1868, will take the money from the homestead in preference to such older judgments founded on debts since said constitution.</p>

<p>•(Bleckley Judge, having been of counsel, did not preside in this case.)</p> <p>The affidavit for the enforcement óf a laborer’s lien under the act of 1869, must allege that the work was done by the plaintiff claiming such lien.</p>

<p>Debtor and creditor. Liens. Before Judge Hill. Bibb county. At Chambers. August 5th, 1875.</p> <p>This case was before this court at the last term: See 54 Georgia Reports, 441. It is sufficiently reported in the opinion.</p>

<p>Attachment. Illegality. Judgments. Before Judge Tompkins. Quitman Superior Court. May Term, 1875.</p> <p>Reported in the opinion. •</p>

<p>1. Facts within the knowledge of the defendant, at the time of the trial, as susceptible of proof by witnesses, cannot be the basis of a motion for a new trial on the ground of newly discovered evidence,</p> <p>2. If the newly discovered evidence relied on to sustain such motion tends to show an alibi, and it is claimed as an excuse for the failure to obtain and introduce the same on the trial, that the defendant was drunk on the day the offense is alleged to'have been committed, and therefore did not know where he was, such fact should be alleged in the .defendant’s affidavit.</p>

<p>Corporations. Stockholders. Contracts. Railroads. Before Judge Kiddoo. Randolph Superior Court. November Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Judicial sale. Advertisement. Evidence. Bonds. Claims. Estoppel, Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>Reported in the decision.</p>

<p>Justice Courts. Judgments. New trial. Promissory notes. Days of grace. Before Judge McCutohen. Whitfield county. At Chambers, May 17th, 1875.</p> <p>Reported in the opinion.</p>

<p>Partnership. Evidence. Before Judge Hall. Newton Superior Court. March Term, 1875. •</p> <p>'‘Reported in the opinion.</p>

<p>I. When an execution has been levied on land in one county, a claim interposed, and the papers returned to the proper court, it is not lawful for the plaintiff to withdraw such Ji. fa. and have the same levied on property in another county, without first obtaining an order of court, or of the judge in vacation.</p> <p>2. The statute of limitations runs in favor of the claimant’s possession of land as a bona fide purchaser thereof, against the plaintiff’s judgment lien until notice has been given by the sheriff of a levy thereon.</p>

<p>Trover. Principal and agent. Ratification. Evidence. Before Judge Hall. Rockdale Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>1. A justice of the peace has no authority to set aside a judgment rendered by him, and he may be restrained from so doing by the writ of prohibition.</p> <p>2. An application for the writ of prohibition may be sanctioned in vacation, but must be made returnable to the next term of the superior court.</p>

<p>Ejectment. Judgments. Possession. Before Judge Clark. Lee Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>A plaintiff in execution is entitled to control the judgment and fi. fa.;, they are his property, and if he directed the sheriff to make a levy and he did so, and then took the execution out of the sheriff’s hands, and kept it until after the day of sale, the sheriff is not bound to sell; and the sheriff and his 'securities are not liable on the bond of the sheriff for the failure to sell, though the sheriff suspended all further proceedings, and delivered the property to defendant before the arrival of the day of sale.</p>

<p>A sheriff is not liable to rule for leaving property levied on under a distress warrant in the possession of the defendant without taking a forthcoming bond, by reason whereof the property was sold under process in favor of other parties, and the proceeds paid over to them, the movant’s attorney having taken the warrant out of the possession of the sheriff after the levy.</p>

<p>Levy and sale. Remainder. Reversion. Estates. Legacy. Claim. Land. Title. Before Judge Gibson. Richmond Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Where, on the 7th of March, 1864, Nelms, as guardian, received §1,420 00 in Confederate money, and had never had the property of his ward in any other form, and on the same day applied to the judge of the superior court for direction in what manner to invest it, and was directed to invest in Confederate securities, and he did so invest in four per cent. Confederate bonds and in interest-bearing Confederate treasury notes, and exhibited the same on trial:</p> <p>Held, that Nelms and his securities on the guardian’s bond are fully protected, and there can be no recovery against them.</p>

New trial. Practice before the Supreme Court. Ejectment. Possession. Charge of Court. Deeds. Boundaries. Land, Estoppel. Before Judge Hopkins. DeNalb Superior Court. March Term, -1875. This is the second time this case has been before this court. See 49 Georgia Reports, 99. It is sufficiently reported in the decision.

<p>The first grant of a new trial on the ground that the evidence is deficient will not be reversed by the supreme court unless the evidence is so conclusive that an abuse of discretion is plainly apparent.</p>

<p>1. The verdict in this case was neither contrary to the principles of justice and equity, nor to the evidence. (R )</p> <p>2. The court is not required to inform a jury whence he derives the law, whether from Pennsylvania or Georgia; it is sufficient if the law he gives them in charge be the law of the case.</p> <p>3. A deed though it may be defectively executed and improperly recorded, if admitted without objection to go to the jury, and especially if its execution be admitted in the pleadings, is evidence; and the court does not err who declines to charge the jury as to the alleged defective execution or improper record.</p> <p>4. Where the wife unites with the husband in the execution of a mortgage, or a deed which becomes by agreement an equitable mortgage, to secure a debt by the husband to his indorser, such indorser is not estopped by accepting such de^d, from denying title in the wife to the mortgaged land.</p> <p>5. Even if the wife’s money purchased the land, and the indorser for the husband, credited him and indorsed for him on the faith that the land was his, without any notice, actual or constructive, that her money paid for it, and the husband mortgage it to the indorser, after the record of the voluntary conveyance, who has paid the note since that record, to provide for its repayment to him, such mortgage is good against any equity of the wife and will be enforced against her. The record of the deed, volununtary on its face, furnishes no constructive notice of purchase money paid by her, nor does it put the indorser upon inquiry about the purchase money so as to affect him with notice.</p> <p>6. A deed from the husband to the wife for love and affection, is a voluntary settlement, within section 1778 of the Code, and must be recorded within three months to vest title in the wife against the claim of a surety who indorses for the husband before the date of the record.</p> <p>7. If the husband mortgage the property so deeded, after the record, to secure a debt due his surety, who indorsed for him on the faith that the land was his prior to the record, such record not being within the three months required by law, the mortgage is good, and will bind the land in equity against the wife’s title by voluntary deed.</p>

<p>Justice of the peace. Contempt. Before Judge'Tompkins. Chatham Superior Court.' February Term, 1875.</p> <p>Reported in the decision.</p>

<p>Gifts. Delivery. Specific performance. Consideration. Declarations. Evidence. Witness. Husband and wife. Before Judge Hall. Meriwether Superior Court. November Term, 1874.</p> <p>Erancina S. Porter filed her bill against Joseph Allen, as administrator of Isaac Cheney, deceased, which, with an amendment thereto, presented, in substance, the following facts:</p> <p>On or about September 9th, 1872, Cheney, who was the owner of the Chalybeate Springs property, in Meriwether county, covering six hundred and forty-four acres of land, more or less, and of all the personalty therewith connected, for a meritorious consideration, natural love and affection, made a parol gift of the same to complainant, by saying to her, in the presence of Mrs. Louisiana L. Love, John J. Collier and Charles T. Porter, “I give to you the Chalybeate Springs property, and appurtenances, and furniture belonging to it.”' He then delivered to complainant the possession thereof. After said gift, Cheney ceased to exercise any dominion over said property, but relinquished the same to complainant and her husband. On the faith of this gift, she and her said husband made valuable improvements upon the property, to the amount of $1,000 00, or other large sum. Complainant was the niece of Cheney’s wife; was raised and educated by him, and was, in fact, treated as his child, he having no children of his own. He exhibited towards her the affection of a father, and she reciprocated the devotion of a child.</p> <p>Mrs. Cheney, at the time of her marriage, possessed property to the amount of $40,000 00, the right to dispose of which by will she reserved by marriage contract. About one month before her death, during her last illness, she appealed to her husband to make a provision for complainant, and he, in the presence of witnesses, promised, at an early date, to transfer to complainant the Chalybeate Springs property. On account of this promise, Mrs. Cheney refrained from devising to complainant her own separate estate, or at least so much thereof as would have been equal in value to the property aforesaid. This constituted a strong moral obligation upon Cheney to give to complainant said property, and was a valuable and meritorious consideration for the aforesaid gift.</p> <p>After the completion of the education of complainant, she returned to the family of Cheney, and devoted herself to the charge of his domestic affairs and to ministering to the wants of his invalid wife. During the years that he had the management of the springs, she assisted in entertaining ■■ such young ladies as were visitors there, and in the general management of the domestic department thereof. These services were valuable to Cheney, were appreciated by him, and constituted an inducement to said gift.</p> <p>Cheney died in December, 1872, intestate,.leaving no wife or children or representatives of-children. His wife died several months previous thereto. Pie left real estate in the county of Talbot, which he acquired by virtue of his marital rights, of the value of $25,000 00, and also personal property of great value. The defendant procured letters of administration upon his estate, and has commenced an action of ejectment for the Chalybeate Spring's property against complainant, her husband, and their tenants.</p> <p>Waiving all discovery, complainant prays that the aforesaid action of ejectment be enjoined; that the defendant be restrained from interfering with her possession of the property aforesaid; that he be specifically decreed to convey to her by proper instrument the title to the same, and that she may have such further relief as the nature of her case may require.</p> <p>The answer of defendant was, in brief, as follows: Admits that Cheney was the owner and in possession of the property in controversy on September 9th, 1872, which he alleges to be of the value of $20,000 00, constituting about one-half of the intestate’s estate; denies that Cheney, on that day, or at any other time, gave said property to complainant by verbal gift or in any other manner, or that he ever placed her in possession of the same under said pretended gift; alleges that said property was rented to one Harris during the year 1872, but in the month of August the contract was canceled, and Cheney then placed complainant and her husband in possession thereof, as his agents, for the purpose of taking care of the same; admits that the intestate left neither wife nor children, nor the representatives of children, but asserts that his next of kin are nine brothers and sisters, and the representatives of two deceased sisters, and that most of his sisters, and the children of those dead, are in indigent circumstances.</p> <p>Soon after the death of the intestate, John L. Cheney, Aquilla J. Cheney and this defendant, obtained temporary letters of administration upon his estate, and at the March term, 1873, of the court of ordinary of Talbot county, permanent letters issued to the latter. Upon the grant of the temporary letters aforesaid the defendant and his associates went to the property in controversy for the purpose of taking possession thereof. The object of their visit being explained to the husband of complainant, he manifested great concern, and inquired if it was intended to turn him out, remarking that if it was done he was ruined. In consideration of his distress and of the kind feelings entertained by the defendant and his associates to him and the complainant, they proposed to rent to them for the year 1873, the private residence at the springs formerly occupied by the intestate, the store-house and all the plantation with the exception of about twenty acres, asking In return only that they would give their personal services in taking care of the property. This proposition was accepted, apparently with gratitude, complainant’s husband stating that if he was successful in the management of the property it would be worth to his wife about as much as one share of the estate. On the following morning this contract was reduced to writing, an additional clause added, to the effect that Charles TV Porter, complainant’s husband, was to be paid $200 00 for the completion of certain repairs and improvements upon a store-house, which had already been commenced by him, and signed by the respective parties thereto. This instrument was then placed in the iron safe at the hotel, to which Porter and this defendant each had a key. A copy is not hereto attached because defendant is refused access to said safe. This contract was explained to complainant and she made no objection thereto, but professed to be thankful for what the defendant and his associates had done for her. She set up no title of any kind in herself. She stated that she knew her uncle Cheney would have given her something if he had died in his right mind. Under this contract between defendant and his associates and Charles T. Porter, the latter fraudulently obtained possession of the entire property.</p> <p>As to the improvements placed upon said property after the date of the pretended gift, defendant alleges them to have been of the most.trivial character, to-wit: the removal of the body of an old store-house which said Porter stated to defendant he did as the agent of Cheney. This defendant and his associates agreed to pay to him, at his request, $200 00 as compensation for said removal, and for the completion of said building. Beyond this the improvements were only such as were absolutely necessary for the cultivation of the land, and at a high valuation, not worth $100 00.</p> <p>Defendant admits the relationship by afliuity of complainant to the intestate; also that Cheney received a handsome property by his marriage; also that he took complainant when ten or twelve years of age and educated and supported her, but denies that he entertained towards her the affection of a parent to a child. From his conduct in another instance defendant suggests that he would have given to her, in addition to her education and support, $1,000 00 if he had not previously done so. But to suppose that he would have given her the property in controversy, constituting one-half of his estate, wo'uld be to charge him with not being just, for it would have left him unable to have paid his debts.</p> <p>Denies the charges as to the services rendered by complainant in the management of the springs, and in attention to'her sick aunt, Mrs. Cheney; admits that Cheney left a considerable estate in Talbot county, but alleges that the lands there only sold for $4,400 00, but the precise amount of the proceeds of the sale of the personalty he is unable to state. Charges that if such false and fraudulent claims as this are allowed, the estate will prove insolvent. Defendant also pleads the statute of frauds.</p> <p>He further alleges that the property in controversy is worth .for rent, annually, the sum of $2,500 00; that his intestate died in possession thereof, and that defendant is therefore entitled to recover the same, with rents, for the purposes of administration.</p> <p>Insisting upon these matters, by way of cross-bill, and waiving all discovery, he prays that the complainant may be decreed to surrender the possession of the aforesaid premises, to account for mesne profits, and that he may have such other relief, etc.</p> <p>To the cross-bill, complainant replied, in substance, as follows: She denies that Cheney’s estate will be insolvent if it loses the property in controversy, but alleges that after the payment of all debts there will be a large surplus for distribution. She denies that such property is worth $2,500 00, annually, for rent, but asserts the same to be worth not more than $500 00 per annum. Denies that Cheney died'in possession of the same, and asserts that the possession thereof was in her under the gift aforesaid. Alleges the improvements placed on the property to have been reasonably worth $1,500 00.</p> <p>.The evidence introduced upon the trial was voluminous. It is omitted here as unnecessary to an understanding of the decision beyond what is set forth in the motion for a new trial.</p> <p>The jury found for the complainant, and directed that the property in controversy be conveyed to her by the defendant.</p> <p>The defendant moved for a new trial on the following grounds, to-wit:</p> <p>1st, 2d, 3d, 4th, 5th. Because the verdict was contrary to the evidence, law, and charge of the court.</p> <p>6th. Because the court erred in charging the jury as follows: “The burden is on the complainant to prove that Isaac Cheney made the gift alleged in the bill. To constitute a valid gift, there must be intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof; if the donation be of substantial benefit, the law presumes acceptance, unless the contrary be shown. Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor, and the transfer of dominion to the donee is constructive delivery.”</p> <p>7th. Because the court- refused to allow defendant to prove by Dr. J. L. Cheney, and others, that they heard Mr. Cheney say, a short time before he started to Florida, that be was going to return in time to attend the sheriff’s sale in Talbot county, on the first Tuesday in December, 1872, and purchase the Stephenson place as a home for Mrs. Porter.</p> <p>8th. Because the court refused to allow defendant to prove by James Woodard, conversations had with Mi'. Cheney at the springs in October, 1872, in which Cheney said that he wanted Woodard to remain with him at the place next year, and that he intended to run the springs in 1873.</p> <p>9th. Because the court refused to allow defendant to prove by John Warner that he heard Cheney say, in October, 1872, that he intended to run the springs in 1873.</p> <p>10th. Because the court refused to allow defendant to prove by Dr. Pope that, in November, 1872, lie heard Mr. Cheney say that he was going to take charge of the springs, and refit them; that he considered them his most valuable property; and invited him to come there with his family, in the summer of 1873.</p> <p>11th. Because the court charged the jury as follows: “The complainant claims that there was a valuable consideration for the gift; she claims that she rendered valuable services to Mr. Cheney, in waiting on and caring for his wife.- If, from the evidence, you believe that complainant rendered services for Cheney in waiting upon and cai’ing for his wife, and if you believe from the evidence, that in consideration of such services, Mi1. Cheney gave the springs to complainant, and she went into possession. under the gift, and if you believe from the evidence that such compensation was not inadequate, the complainant would be entitled to specific performance. But if you believe from the evidence that Mx\ Cheney did not give the springs place to complainant, or if he did give it, that complainant did not render the services, or if she did, that the gift was not made by Mi*. Cheney in consideration thereof, or if it was, that such consideration was inadequate, the complainant would not be entitled to a specific pei’formance of the gift thus made, unless it is founded on some other consideration.”</p> <p>12th. Because the court refxxsed lo allow defendant to pr'ove by James Yernay, that on the 30th of October, 1872, he entered into a partnership with Isaac Cheney to carry on a livery stable business at the. Chalybeate Springs in 1873, and that Cheney was to furnish him a hoxxse to live in at the springs, and said he intended to improve the springs so as to make them a first-class watering place.</p> <p>13th. Becaxxse the court refused to charge the following request: “If the jury, fx’om the evidence, shall believe that Cheney made a verbal gift of the springs place to complainant, and put her in possession of the same, and she has made valuable improvexnents upon the faith thereof, and that complainant was the niece of his wife, and that was the only relationship between them, such gift is without consideration, and equity will not decree specific performance of the same.”</p> <p>14th. Because the court refused to charge the following request: “If the jury, from the evidence, shall believe fhat Cheney did give the springs property by parol to complainant, and gave her possession upon a meritorious consideration, yet if the proof shows that she has made slight improvements on the place, and that the same are of small value, then she is not entitled to the relief prayed for.”</p> <p>15th. Because the court charged the jury as follows: “If, at the marriage of Isaac Cheney and his wife, they entered into a marriage settlement, in which was secured to Mrs. Cheney the right to dispose of property therein mentioned, either by deed or will, and before the death of Mrs. Cheney, Mr. Cheney agreed with her, in consideration that she would not dispose of such property, that he would give the springs to complainant, and if by reason of such agreement, Mrs, Cheney did not dispose of such property by will or deed, and if, in pursuance of such agreement, Mr. Cheney made to complainant the parol gift stated in the bill, then the complainant will be entitled to specific performance, if you believe from the evidence that the consideration was not inadequate. But if, from the evidence, you believe that Cheney did not make such agreement, or if he did, that the consideration was not that Mrs. Cheney was not to dispose of the property, then complainant will not be entitled to a specific performance of the gift, if made, unless it is founded on'some other consideration.”</p> <p>16th. Because the court, over the objection of defendant’s counsel, allowed complainant, in rebuttal, to testify as follows: She was at the springs in December, 1872, when the administrators came there; never agreed to give up the possession of the property, nor authorized any one to do so. The administrators said nothing to her about giving up possession. No conversation took place between the administrators and witness concerning the property. She did not on any occasion-express herself, to said administrators as thankful for being permitted to remain on the place during 1873. Did not say, on the 7th or 8th of December, 1872, at the late residence of Isaac Cheney, in the presence of Edward P. Martin, that she was ruined if Mr. Cheney left no will, being left without a home or means of subsistence, or words to that effect. On the 7th or 8th of December, did not say, in the presence of Dr. Joseph Stephenson and his wife, at the residence of the late Mr. Cheney, that if said Cheney had not done more for her than she knew of, she was ruined. Said nothing to either of them in reference to the -will of Isaac Cheney. Did not, on either of the aforesaid days, say in the presence of Alfred Patrick and his wife, or either of them, that it.was an awful thing, and she would be obliged to go down, or that if she could have gone to him and put a pen in his hand, it would all have been right. (The court restricted witness to the statement of facts which transpired subsequent to the death of Mr. Cheney.)</p> <p>17th. Because the court allowed complainant to read in evidence a marriage contract, made and entered into by and between Isaac Cheney and Matilda T. Justice, his wife, on the 16th of January, 1838, in which the right was reserved to Mrs. Cheney to dispose of the property therein specified by deed or will.</p> <p>18th. Because the court refused to charge the following request: “Nothing is part performance which does not place the party seeking specific execution in such a situation as to render it fraudulent in the other party not to execute his agreement.”</p> <p>19th. Because the court refused to give the following request in charge: “If the jury shall believe, from the evidence, that Cheney and his wife, prior to their marriage, entered into a marriage settlement, in which Mrs. Cheney reserved the right to dispose of a portion of the property therein mentioned, either by deed or will, the proof of such contract does not of itself furnish evidence to show that the gift alleged in the bill is founded upon a valuable or meritorious consideration.”</p> <p>20th. Because the court allowed complainant to prove, by Mrs. Edwards, a conversation between Mr. Cheney and Mrs. Cheney, in which. Mr. Cheney promised Mrs. Cheney that he would give the springs place to Mrs. Porter, as soon as he could have them fixed up. This conversation was about one month prior to the death of Mrs. Cheney.</p> <p>21st. Because the court refused to allow defendant to prove, by James Warner, that the last interview he had with Mr. Cheney was in the office of the hotel, at the springs, on the night of-the 27t'h of October, 1872, the day before he started to Florida; that Cheney stated that he wanted him (Warner) to remain at the springs place during 1873, saying that he (Warner) could have choice of any land on the place, that he (Cheney) did not want to rent bis land on that place to free negroes.</p> <p>22d. Because the court refused to allow defendant to prove, by George Elder, that Mr. Cheney supported John Love and his family for a long while after he married the mother of Complainant.</p> <p>23d. Because the court allowed Charles T. Porter, the husband of complainant, to testify in said case.</p> <p>The court ordered a new trial on the 1st, 2d, 3d, 4th, 5th, 7th, 8th, 9th, 10th, 12th, 13th, 15th and 18th grounds of the motion. To this ruling complainant excepted. The defendant excepted because th'e motion was not also sustained on the ■6th, 11th, 16th and 17th grounds.</p> <p>The case was tried before Judge Buchanan, and the motion for new trial was heard by Judge Hall.</p>

Corporations. Principal and agent. Torts. State. Frauds. Estoppel. New trial. Newly discovered evidence. Mistake. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.

<p>Municipal corporations. Tax. License. Before Judge Hopkins. Eulton county. At Chambers. November 29th, 1875.</p> <p>Reported in the decision.</p>

<p>Slander. Before Judge Rice. Banks Superior Court. April Term, 1875.</p> <p>Hooper brought complaint against Martin for damages sustained by reason of the defendant’s saying of and concerning the plaintiff the following false and malicious Avords, to-Avit: “I Avant to sleep in my house to-night,” meaning his (Martin’s) divelling house, the same being situate on a farm, not in a city, town or village; “a man tried to burn it up last night. I saw the man and drove him off; there were the sticks, the matches and the brimstone with which he had tried to burn up my house. I know who. it was; John Perkins was the man. When I drove him off, I,saw Al.. Hooper” (meaning, your petitioner) “standing at the road holding a torch for him,” thereby meaning that the said John Perkins had set fire to said dwelling house, and that he attempted to burn said dwelling house; and further meaning that your petitioner was present aiding and abetting the act to be done, wherefore he prays process, etc.</p> <p>On demurrer, the case was dismissed, and plaintiff excepted.</p>

<p>1. The power of the courts to punish for contempt is limited in Georgia, both by the constitution and the laws, and extends in a case of the kind at bar only to the officer in his official transactions, and to the disobedience or resistance by any other person of any lawful writ, process, order, rule, decree or command of the court. The court may, in this summary manner, punish the sheriff for contempt under the facts here, but he cannot punish the purchaser by annulling the deed to the land: Code, sections 5009, 4711.</p> <p>2. Where one who is not a party to the judgment and ji. fa. under which land is sold at public outcry by the sheriff, purchased the same, the said judgment and execution being all regular, and the sheriff made the purchaser a deed and put him in possession of the land, such sale of the land cannot be set aside and the deed canceled, in this state, by a mere motion or rule to show cause, on the ground that the sheriff and the purchaser fraudulently colluded at said sale so that the land sold for an insignificant sum compared with its value.</p> <p>3. Such purchaser has a right to be heard according to all the ordinary forms of law, to be served with regular process, to have the ordinary time to prepare his case, to cross-examine witnesses, to go before a jury and have the issue of fraud or no fraud tried as ordinary suits at law or in equity are tried.</p> <p>4. The plaintiffs seeking to set aside such a deed, may proceed at law or in equity; but they must sue the purchaser regularly, and he must have all the defenses and modes of defense as in other suits. A trial, on motion, on affidavits taken ex parte, without the right to cross-examine, is too summary, and altogether at war with the spirit and policy of the laws of Georgia, which, whether at law or in equity, entitle the defendant to a fair trial on evei-y issue of fact Before a jury of his vicinage.</p>

<p>1. A presentment which charges a justice of the peace with “malpractice,” without the addition of the words “in office,” is demurrable.</p> <p>2. A presentment charging a justice of the peace with malpractice, which does not show by the entry of the solicitor general or the sheriff, that a copy thereof had been served on the defendant before the same was laid before the grand jury, and that he had been notified to appear with his witnesses, is demurrable.</p> <p>3. A presentment which simply charges a justice of the peace with being drunk whilst presiding in his court, is demurrable. It should set forth the wrong done by some official act or omission to act, resulting from such drunkenness.</p> <p>4. A justice of the peace cannot be arraigned on a presentment for malpractice in office. An indictment is the proper method of charging him with such offense, as prescribed in the Code, section 4504.</p> <p>Bleckley, Judge, concurred.</p> <p>Jackson, Judge, dissenting.</p> <p>1. Drunkenness on the bench is “conduct unbecoming an uptight magistrate,” in the sense of section 4504 of the Code.</p> <p>2. An indictment or presentment which charges the defendant “with the offense of malpractice,” without adding the words “in office,” is sufficiently technical in naming the offense under our Code, and ought not to be quashed for the omission of those words.</p> <p>3. Where, in the body of the indictment or accusation, the charge is set out, “that the said Hawkins, on the 10th day of April, 1874, then and there, in the nine hundred and nineteenth district, being then and there a justice of the peace in and for said district, when then and there presiding in the justice’s court of said district, then in legal session, was guilty of conduct unbecoming an upright magistrate, by being then and there drunk voluntarily, from a long continued and excessive use of intoxicating liquors,” such charge is set out “ so plainly that the nature of the offense charged may be easily understood by the jury,” and therefore, by authority of section 4626 of the Code, the court below was right in sustaining it as “ sufficiently technical and correct.”</p> <p>4. The grand jury not only may present an offender for malpractice in office, but it is their duty to do so under section 3917 of the Code, more especially in cases like that at bar, where a private person might feel reluctant to see to it that the law was vindicated at the hazard of offending a magistrate in</p> <p>■ power and his friends and sympathizers. The fact that the prosecutor is mentioned in section 4504 as having the right to appear before the grand jury, applies only to the case where there is a prosecutor, and does not render section 3917 inapplicable to this class of cases, and thereby preclude the grand jury from prosecuting by presentment this violation of the law.</p> <p>5. Whilst, under section 4504, it is the right of the accused, with his witnesses, to appear and be heard before the grand jury, the fact that he did appear and was heard need not be alleged in the indictment, nor need it be indorsed on the same. It is enough if it appear to the satisfaction of the court that he was furnished with a copy of the indictment or presentment before the grand jury acted, and that he did appear, and was heard before them.</p> <p>6. The jury having found the defendant guilty, and the verdict being sustained by the evidence, and the law having been properly given to the jury in charge, in my judgment he should receive the punishment the law imposes — especially that part which removes him from office — and the judgment of the court below should be affirmed.</p>

Criminal law. Continuance. Indictment. Before Judge Bartlett. Greene Superior Court. March Term, 1875. Moody was placed on trial for the offense of assault with intent to murder, alleged to have been.committed upon the person of one Hark Mathews, by shooting him. When the case was called for trial, a motion was submitted by the defendant for a continuance, which was overruled. This branch of the case is fully reported in the first three head-notes.

<p>1. If it were doubtful merely, the court should not declare an act unconstitutional; they should be clearly satisfied of its unccnstitutionality before annulling an act passed upon as constitutional by both the legislative and executive departments of the state government.</p> <p>2. In claim cases either party may appeal from the decision of the justice of the peace to the superior court, where either the amount of the fi. fa. or the value of the property claimed, exceeds $5o 00.</p> <p>3. The act of 1874, regulating the right of appeal in such cases, so far as it makes either the amount of the fi. fa. or the value of the property, the test of what is “ the sum claimed ” in the language of the constitution, is not in conflict with the second and third paragraphs of section sixth, article fifth, of the constitution of the state.</p>

<p>Mandamus. Corporations. Arbitrament and award. Appeals. Jurisdiction. Before Judge Tomfiiins. Chatham Superior Court. February Term, 1875.</p> <p>Reported in the decision.</p>

New trial. Practice in the Supreme Court. Practice in the Superior Court. Before Judge Schley. Bulloch Superior Court. October Term, 1874.

<p>Persons desirous of being incorporated under section 1676 of the Code, must specify the object of their association, the particular business they propose to carry on, the place at which they propose to carry it on, and the amount of capital to be employed by them in such business actually paid in; and unless these particulars be disclosed in the application, the charter will not be granted.</p>

<p>Where property was levied on under an attachment, claimed and found sub- • ject; but when the execution based on the judgment obtained on the attachment was placed in the hands of the sheriff and the property demanded of the claimant, he refused to deliver the same:</p> <p>Held, that a recovery could be had on the forthcoming bond, without proof that the aforesaid property had been advertised for sale. The refusal to deliver the property was a forfeiture of, the bond.</p>

Attachment. Practice in the Supreme .Court. Before Judge Buchanan. Carroll Superior Court. April Adjourned Term, • 1875.

<p>Bill of exceptions. Practice in the Supreme Court. Practice in the Superior Court. Husband and wife. Marriage articles. Statute of frauds. Laws. Construction of statutes. Title. Equity. Statute of limitations. Abatement. Before Judge Pottle. Hart Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Grounds of new trial not verified by the presiding judge cannot be considered.</p> <p>2. The verdict was neither contrary to the law nor the evidence.</p>

<p>Claim. New trial. Guardian and ward. Administrators and executors. Judgments. Levy and sale. Improvements. Equity. Pleadings. Evidence. Estoppel. Attorney and client. Witness. Before Judge Buchanan. Troup Supe-. rior Court. November Term, 1874.</p> <p>This case is sufficiently reported in the head-notes and the opinion.</p>

<p>Bill of exceptions. Pratice before the Supreme Court. July Term, 1875.</p>

<p>1. Where a paper purporting to be a bill of exceptions was served upon opposite counsel before it was certified by the presiding judge, the writ of error will be dismissed. (R.)</p> <p>2, The bill of exceptions to an order granting an injunction was served upon opposite counsel before it was certified by the judge. A motion to dismiss the writ of error upon this ground, was sustained. Counsel for plaintiff then stated that there was still time within which to perfect service, and asked leave to withdraw the bill of exceptions for this purpose. This was allowed by the com! without prejudice to the rights of the defendants. Service was perfected, the bill of exceptions refiled in the clerk’s office of this court, and the case reset for trial. When the case was called a second time, counsel for defendants moved to dismiss the writ of error because there was no record certified under this bill of exceptions. It was replied that the record forwarded with the first bill of exceptions was here. The court sustained the motion, holding that when the bill of exceptions was withdrawn, there was no case pending in this court, the writ of error havingbeen dismissed, and that counsel for plaintiff in error should have commenced de novo, ignoring entirely the former proceeding, and complying with all the requirements of the statute. (R.)</p>

<p>Where the clerk of the superior court fails to forward a bill of exceptions, after the expiration of the ten days allowed him for making out transcript of record, etc., until too late to reach the clerk’s office of this court by the return day of the next term, by reason of which said case is placed upon the docket of the second term, the writ of error will be dismissed. (R.)</p>

<p>Service. Solicitor General pro tem. Bill of exceptions Practice before the Supreme Court. July Term, 1875.</p>

<p>Bill of exceptions. Practice before the Supreme Court. July Term, 1875.</p>