Volume 55 — Georgia Reports

<p>1. An agreement to settle an existing debt by promise to pay a part thereof, is void, for want of consideration, unless some benefit accrues from the agreement to the creditor or detriment to the debtor, other than what springs out of the original contract.</p> <p>2. If the plaintiff delayed suit by reason of said promise until his original claim was barred by the statute of limitations, then he suffered such detriment as would operate as a consideration for the promise.</p> <p>3. The detriment sustained by the plaintiff, if relied upon as a consideration for the contract sued on, should be distinctly alleged in the declaration and proved upon the trial. .</p>

<p>Judgments. Levy and sale. Lien. Administrators and executors.. Debtor and creditor. Equity. Pleadings. Before Judge Bartlett. Wilkinson Superior Court. April Term, 1875.</p> <p>Twelve executions in favor of William C. .Parker, against James Jackson, as administrator of Rebecca Jones, all based on judgments obtained at the August term, 1866, of Wilkinson county court, were, on March 1st, 1869, levied on fourteen hundred and sixty acres of land, in the fourth and fifth districts of said county, to satisfy the same, “in accordance with a decree in equity in case of James Jackson vs. J. T. Jones.” The property levied on was claimed by Joseph T. Jones. On the trial of the issue thus formed £he following evidence was introduced:</p> <p>• 1st. The executions above named, counsel agreeing to use one for the twelve.</p> <p>2d. The levy. This was objected to by claimant as “ being of no force in law now, but discontinued, dead and abandoned.” The objection was overruled, and claimant excepted.</p> <p>3d. Affidavit of claimant of same date as the levy, made under the relief act of 1868.</p> <p>4th. Memoranda of bench docket showing the history of this proceeding under the relief law until it was finally dismissed at the April term, 1872.</p> <p>5th. Claim interposed by Jones on October 28th, 1873, and order allowing its withdrawal at October term, 1874.</p> <p>6th. Bill in equity by James Jackson against claimant, returnable to October term, 1866, and proceedings thereon to final decree. This evidence was admitted over the objection of claimant, and he excepted.</p> <p>•This bill made, in brief, the following ease against Jones:</p> <p>Jackson was appointed administrator of Rebecca Jones and. guardian of claimant, her only child. He took possession of her estate, consisting of lands, slaves, stocks, etc., aggregating in value $28,500 00. The debts of such estate were paid off with the exception of that due Parker, which was represented by twenty-two notes, each for $50 00, and one for $34 75, all dated October 2d, 1857, and due December 25th, 1858. For various reasons, immaterial here, the income of the estate was •insufficient to support claimant and to pay off these notes. Claimant, though a minor, yet was of an age sufficient to be consulted by his guardian as -to the management of the estate. He objected to the sale of any portion of the corpus, and thus the debt was allowed to remain outstanding. Claimant having reached maturity on May 4th, 1863, at his special instance and request, Jackson, as administrator of Rebecca Jones, and as his guardian, turned over to him all of the aforesaid estate upon the distinct understanding and agreement that he would assume said debt to Parker and save said Jackson harmless therefrom. Claimant failed to carry out this agreement., and now, from the emancipation of slaves, and other causes, has become unable to do so, except by the sale of the aforesaid land. At the August term, 1866, Parker obtained judgments on said notes against Jackson, as administrator. The latter has ho funds of the estate in his hands with which to meet the same, and unless the aforesaid lands are subjected to their payment, his individual property will be rendered liable thereto. Prays that claimant be enjoined from selling or encumbering said property, that it be subjected to the payment of the aforesaid judgments, and that the writ of subpoena may issue.</p> <p>The claimant answered, setting up grounds why said lands should not be subjected to said judgments, and, by way of cross-bill, asked that Jackson be brought to an account for his management of the estate while in his hands.</p> <p>To this cross-bill Jackson filed an answer setting forth his returns to the ordinary, etc.</p> <p>The jury found the land to be subject to the Parker debt, and directed that it be sold under the rules and regulations governing sheriffs’ sales, and that the proceeds thereof, or so much as may be necessary, be applied to the payment of said debt and the costs of this proceeding. The chancellor decreed accordingly.</p> <p>7th. Receipt from claimant to Jackson, both as guardian and administrator, for all the property coming to him from the estate of Rebecca Jones, deceased, and releasing and acquitting him from all further and future liability. Dated May 4th, 1863.</p> <p>8th. Admission that lands referred to in the aforesaid bill, etc., are those claimed.</p> <p>In the course of the trial the court expressed the opinion that the decree in the aforesaid equity cause operated as an estoppel upon claimant, and that the Parker judgments constituted a lien on the land. A verdict was returned accordingly.</p> <p>The claimant moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the court erred in admitting the aforesaid levy in evidence.</p> <p>2d. Because the court erred in admitting in evidence the aforesaid bill in equity with the proceedings had thereon.</p> <p>3d. Because the court erred in holding that said decree operated as an estoppel on claimant, and that the judgments of plaintiff in execution constituted a lien on the land.</p> <p>The motion was overruled, and claimant excepted.</p>

<p>Guardian and ward. Statute of limitations. Demurrer. Practice in the Superior Court. Before Judge Buchanan. Floyd Superior Court. January Term, 1875.</p> <p>Reported in the opinion.</p>

Municipal corporations. Streets. Evidence. Before Judge Bartlett. Baldwin Superior Court. February Term, 1875. Upon the trial of this case the defendants proposed to show by Lyman H. Compton, one of the aldermen, and by the introduction of the city tax digest, that with the means at the command of .the city authorities, it was impossible to keep the street in repair, in which the injury occurred, without neglecting more important streets.

<p>Practice in the Superior Court. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1874.</p> <p>Cherry moved to set aside five judgments of foreclosure of mortgages rendered against him in favor of the Home Building and Loan Association, upon the ground that the rules nisi in such cases did not call upon him to pay into court any specific sum of money, but only the principal, interest and installments due in accordance with the charter and- by-laws of said association; that not having any defense to the payment of that amount, he did not answer said rules nisi; that thereupon, by reason of an illegal and mistaken construction of said charter and by-laws, rules absolute were taken for more than treble the sum really due.</p> <p>This question was argued, but a decision was postponed in order to enable the court to discover whether the matter complained of could uot be remedied by writing off a portion of the various amounts for which the rules absolute were rendered. To this end reference was made to an auditor to ascertain what was really due upon the several mortgages. Upon his report coming in, the court announced orally that be should order the rules absolute opened. After this announcement, but before it had been reduced to writing, counsel for Cherry moved to dismiss their motion. This the court refused to permit, and to this ruling exception was taken.</p>

Continuance. New trial. Evidence. Estoppel. Guardian and ward. Sales. Factors. Before Judge Goudd. City-Court of Augusta. February Term, 1875. Susan DuBose and William W. Simpson, as guardian of Louisa T. and William V. DuBose, minors, brought assumpsit against Branch, Sons & Company on the following bill of particulars: “ Branch, Sons & Company, “1873. To Susan DuBose and William W. Simpson, guardian, Dr. “April 24th.

<p>Trusts. Prescription. Fraud. Statute of limitations. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1874.</p> <p>Reported in the decision.</p>

<p>Criminal law. Drunkenness. Charge of Court. Before Judge McCutchen. Whitfield Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Injuetion. Tax. Before Judge Tompkins. Chatham county. At Chambers. July 26, 1875.</p> <p>Reported in the decision.</p>

<p>1. The act of August 23d, 1872, which authorizes persons other than the defendants of record, to make, under oath, pleas in defense of suits to which they are not parties, is in conflict with article III., section 4, paragraph 5, of the constitution, and therefore is unconstitutional and void.</p> <p>2. A manufacturing company incorporated by the legislature of South Carolina, but which transacted its business and had its principal office in Georgia, and became indebted under and by virtue of contracts made in Georgia, is liable to suits upon such contracts in the courts of Georgia, though at the time of the institution of the suits no business is being done by the company, the president of the company and a majority of the stockholders having always resided, and still residing, in Georgia, all the meetings of the stockholders having been held in Georgia, the books being in Georgia in the hands of the president, and a notice for a meeting of the stockholders in Georgia pending at the time of the commencement of the suits, the company having at that time no office or place of business anywhere in South Carolina.</p> <p>3. Service upon the president of the company in the county of Richmond, where he resided at the commencement of the action, and where the books of the company were, and where the stockholders were under notice to meet, is sufficient service upon the company.</p>

<p>1. A married woman in this state, who has a separate estate in land, may dispose of the same by the ordinary deed of conveyance.</p> <p>2. The act of 1760 only applies to such conveyances of real estate by the husband of the feme covert as she may have an interest in, and not to conveyances of her separate property of which she is the sole owner.</p>

<p>t</p> <p>Claim. Lien. Judgments. Possession. Charge of Court. Practice in the Supreme court. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.</p> <p>An execution in favor of the Bank of Brunswick against the Water Lot Company of the city of Columbus, was levied upon certain water lots in the city of Columbus. A claim to a portion of the property covered by the levy was interposed by the Eagle and Phenix Manufacturing Company. The claim was based on a purchase by claimant and four years possession prior to the levy. Upon this branch of the case the evidence was that claimant had purchased the property in controversy, in the early part of the year 1866, and had been “in such possession as the deed gave,” ever since. No deed to claimant is set forth in the record; nor was the possession given by it explained. From whom claimant purchased, and the consideration paid does not appear.</p> <p>The jury found the property subject. Exception was taken to the charge of the court, but in view of the decision, it is immaterial here.</p>

<p>Principal and agent. Factor’s lien. Before Judge Tompkins. Morgan Superior Court. March Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

Criminal law. Continuance. Challenge. Charge of Court. New trial. Opprobrious words. Manslaughter. Before Judge Hansell. Brooks Superior Court. November Adjourned Term, 1874. Thompson was tried for the murder of James H. Hunter, alleged to have been committed on October 7.th, 1874. The case is fully reported in the decision.

Debtor and creditor. Tender. Pledge. Conversion. Pleadings. Before Judge Hopkins. Eulton Superior Court. April Term, 1875. McCalla brought complaint against Clark for a certificate representing one hundred and twenty shares of the stock of the Atlanta Ice Manufacturing Company, alleged to be of the value of $2,000 00.

<p>1. The taking of personal security on a note formoney and supplies furnished by a factor with which to make a crop, secured by the statutory lien, did not operate as a waiver of such lien.</p> <p>2, A second counter-affidavit to an execution based on the foreclosure of a factor’s lien cannot be filed without an allegation that the facts therein set forth were unknown to the defendant at the time the first was filed.</p> <p>3. Such counter-affidavit, which was the foundation of a legal proceeding, cannot be amended after it has been returned into court, either by the filing of a new affidavit or otherwise, so as to change the issue thereby presented.</p> <p>Jackson, Judge, dissenting.</p> <p>1. “Pleadings are the altercations between the plaintiff and the defendant,” and in cases of the summary foreclosure of a crop lien, the affidavits are the only altercations between the plaintiff and the defendant, and therefore the only pleadings. Hence the affidavit of the defendant is his plea, and he may amend it, as a matter of right, at any stage of the cause.</p> <p>2. If the defendant, when regularly sued and served, with six months for preparation for trial allowed him, may, then, at any stage of the trial, amend his pleas, a fortiori in a summary proceeding begun by the seizure of his property and for trial at the first term, he should be allowed the right to amend.</p> <p>3. Nor does it alter his right to amend, that, in a case like this, his plea is an affidavit; all pleas to bring parties to an issue of fact must be sworn to; if this defendant had been sued by the regular process of the court and had put in the same plea which his counter-affidavit makes here, it must have been sworn to by him, yet he could have amended that, so also may he amend this.</p> <p>4. Section 3504 of our Code provides that “an affidavit which is the foundation of a legal proceeding cannot be amended except expressly pro vided by law,” therefore by a weighty negative pregnant, by a very strong implication, it affirms that an affidavit which is not the foundation of a legal proceeding may be amended without ail express provision of law— that is, under the general liberal law of the amendment of pleadings, if it be in the nature of a plea; the affidavit of the defendant here is not the foundation of a legal proceeding, but it is the defense to the plaintiff’s affidavit of foreclosure, which latter affidavit is the foundation of the suit; hence, while the affidavit of the plaintiff could not be amended, because it is such foundation and no express law authorizes it to be amended, the counter-affidavit of the defendant may be amended under the general law, because it is not the foundation of a legal proceeding, and needs no such express provision to authorize an amendment to it.</p> <p>5. The distinction is broad between an affidavit of illegality to an execution after the defendant has been heard on his defense to the original cause of action, and this affidavit which enables him to be heard for the first time in court; and the statute, which puts the defendant in illegality on terms before he can amend his affidavit, has no application, either in letter or spirit, to the defense to this summary proceeding.</p> <p>6. A plea to the effect that the lien on the crop of 1874 was not for money, nor supplies, nor necessaries, to make that crop, but was a lien given to pay an old debt due the preceding year, is a good plea in bar of the proceeding to foreclose it, and should have been allowed when offered as an amendment before the concluding counsel for the plaintiff had opened his argument</p>

<p>Suit on a note due in 1861 by an administrator whose letters were granted on the 3d of July, 1871, not brought until the 10th of October, 1872, was barred by the act of limitation of 1869 : 50th Georgia, 382.</p>

<p>1. Only a statutory bond will dissolve a garnishment.</p> <p>2. To adjudge that the bond given does not conform to the statute, and for that reason to deny the plaintiff’s motion to enter up judgment on the same, is virtually to adjudicate the bond insufficient to dissolve the garnishment.</p> <p>5. Judgment against the plaintiff on such motion will bar any subsequent action on the bond which depends for success upon holding the bond sufficient to dissolve the garnishment.</p> <p>4. Construing the bond as insufficient to dissolve the garnishment, then, the condition being to pay the eventual condemnation money so far as the effects and moneys garnished shall be found liable to the plaintiff’s demand, there is no breach of the condition until after some judgment has been rendered on the garnishment fixing the amount of these moneys or effects and finding them liable, (xst Kelly, 72.</p> <p>5. In an action upon the bond the garnishee’s answer, later than the bond, is not evidence for the plaintiff, no judgment upon the answer being shown which declares the garnishee liable for any amount, or that the moneys or • effects admitted to have been in his hands, are subject to the plaintiff’s demand.</p>

<p>Claim. Demurrer. Deed.or will. Estates. Remainder. Parties. Husband and wife. Registry. Before Judge Tompkins. Richmond Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Claim. Before Judge Tompkins. Richmond Superior Court. April Term, 1875.</p> <p>Report unnecessary.</p>

<p>Where suit is brought by executors against a legatee under the will of their testator, on an account for money alleged to be due, he cannot plead as a set-off the amount of his legacy, unless he shows the estate to be solvent, and in a condition to be distributed.</p>

<p>Recoupment. Damages. Pleadings. Demurrer. Amendment. Practice in the Superior Court. Before Judge Harris. Glynn Superior Court. November Term, 1874. .</p> <p>Cadwallader, as trustee in bankruptcy of Dodge & Company, instituted proceedings to foreclose a mortgage executed - by Finney, to secure the payment of a promissory note made by N. S. Finney & Company, dated .June 1st, 1870, payable two years after date, to the order of Dodge & Company, for $4,000 00, bearing interest at seven per cent., upon which was a credit of $1,089 32. To the rule nisi Finney pleaded as follows:</p> <p>At the time of the commencement of this suit Dodge & Company were indebted to him in the sum of $9,930 00, on account of their failure to comply with certain agreements entered into by them, which constituted the inducement to defendant to accept the loan of $4,000 00, secured by the mortgage aforesaid. The contract out of which such undertakings arose, was, in substance, as follows :</p> <p>Finney was to erect the two-and-a-half story building described in said mortgage, in which Dodge & Company were to have two rooms as offices, free of rent for two years, or until said note for $4,000 00 was paid. He was to entirely withdraw from the business of buying and shipping yellow pine lumber, in which he was then engaged; to give them the benefit of the good will of his business and the exclusive right to pass lumber over his wharf and mill-shed.</p> <p>In consideration of which Dodge & Company agreed to make him the loan on said note, secured by said mortgage.</p> <p>Also, to establish a line of schooners between New York and Brunswick, Georgia, for the transportation of freights, to advertise the line at both ends, of the route; and to make said Finney, or such firm as lie might organize,-sole agent of the same at Brunswick, with the right to the usual commissions etc., on the business done.</p> <p>Also, to ship' over his wharf and mill-shed, during the first year of their business, not less than eight million feet of lumber, and during each subsequent year not less than ten million feet, on'which he was to be paid twenty-five cents per thous- and feet, to be credited on said note and mortgage. Should said Dodge & Company desire to store lumber in said mill-shed, they were to pay the same storage as was charged in Savannah, also to be credited as above indicated. But said wharf and mill-shed were to be kept unobstructed by lumber wheu said Dodge & Company had no vessels in port.</p> <p>Also, to establish a bank in said building, and to make defendant the business manager thereof.</p> <p>Dodg.e & Company failed to establish the line of schooners, as promised, whereby he was damaged during the two years they did business in Brunswick, from May 23d, 1870, to May, 1872, $1,200 00. They failed, also, to comply with their undertaking as to the amount of lumber which they were to pass over his wharf and mill-shed, shipping only two million two hundred and fifty thousand feet each year, whereby he was damaged $3,500 00. They failed, also, to pay for the storage on their lumber, damaging him on that account $1,130 00. They failed to comply with their agreement to keep the wharf unobstructed with lumber when they had no vessels in port, and thus prevented him from receiving five cargoes of railroad iron which were consigned to him, the storage, wharfage and commissions upon which would have netted him $1,100 00, whereby he was damaged the amount aforesaid. They failed to comply with their agreement to establish a bank, and to make him the business manager thereof, in expectation of which he had gone to the expense of fitting up a portion of his said building for the banking business, by reason of which he was damaged $3,000 00. From these causes he has been damaged in all $9,930 00.</p> <p>He would not have borrowed the $4,000 00, secured by the mortgage aforesaid from said Dodge & Company, had it not been for these various undertakings on their part. All of the obligations assumed by him were, in good faith, executed. From the amount of the damages sustained by him, he is willing to allow the plaintiff the sum claimed.</p> <p>To this plea the plaintiff demurred upon the following grounds:</p> <p>1st. Because it sought to set up parol agreements to vary the terms of a valid written instrument.</p> <p>2d. Because the agreements set forth by said plea were in parol, and not to be fully performed within one year, and were consequently void under the statute of frauds.</p> <p>3d. Because recoupment was not a proper plea upon said facts.</p> <p>The demurrer was sustained and defendant excepted.</p> <p>The jury returned a verdict for the amount claimed. Error is assigned upon the above ground of exception.</p>

<p>(Bleckley, Judge, being a party thereto, did not preside in this case.)</p> <p>1. Where a'party seeks to recover in ejectment upon the perfect equity arising out of a bond for titles with purchase money paid, it must be clearly proven that all the purchase money has been paid by the plaintiff, and where the element of notice is involved, possession under the bond is also necessary, unless the notice be otherwise clearly shown.</p> <p>2. Where A holds the legal title and B’s money has paid the consideration of the deed, and C purchases from A without notice, actual or constructive, of B’s equity, C will be protected. His title is good against B’s equity.</p> <p>3. So, where a father bids off property at a sale by an administrator, one-fourth of the price to be paid cash, and the balance in equal installments at one and two years, and gives his individual notes therefor and takes a bond for titles in the name of his daughter, but when the last installment is paid, has the deed made to himself, whether his or her money bought the land, if it be sold by the sheriff under a mechanic’s lien against him, he being in possession, the purchaser at such sale, in ignorance of the fact ‘that she had any claim, having no notice thereof, actual or constructive, buys a good title against all equities of the daughter and transmits it to those who claim under him.</p> <p>4. It was competent to prove by the administrator that at the time of the execution of the deed, when the father paid the last installment, that he (the father,) directed the deed to be made to him individually, even though the plaintiff was neither present nor consenting thereto. This saying constituted a part of the res gesta. (R.)</p>

<p>Statute of limitations. Before Judge Tompkins. Effing-ham Superior Court. April Term, 1875.</p> <p>Reported in the opinions.</p>

Sheriff. Levy and sale. Bankrupt. Homestead. Before Judge Clark. .Sumter Superior Court. January Term, 1875. , Redding obtained a rule against Wheeler, sheriff, requiring him to show cause why he should not pay to the plaintiff $250 00 principal, with interest from September 7th, 3869, and costs, due on an execution against A. B. Raiford, placed in his hands for collection.

<p>Guardian and ward. Pleadings. Evidence. Interest. Before Judge Clabk. Sumter Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Trover. Contracts. Lien. Interest. Before Judge-James Johnson. Muscogee Superior Court. November Term, 1874.</p> <p>Reported in .the decision.</p>

<p>Practice in the Superior Court. Garnishment. Admissions. Witness. State. Confederate States. Estoppel. Before Judge Gibson. Richmond Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>(Bleckley, Judge, having been of counsel, did not preside in this case.)</p> <p>1. A consent order was taken during the term, authorizing a motion for anew trial and an agreement upon the brief of evidence within ten days from the adjournment of the court, the motion to be heard at chambers, as if in terms, within twenty days, either party having the right to except; ought such motion to be dismissed when made in compliance with the terms of the order ? Queers. Two judges presiding, and they differing in opinion, the judgment of the court below refusing to dismiss is affirmed.</p> <p>2. Suit may be brought against an insurance’ company on any claim or demand, in any county where said insurance company may have an agency or place of doing business, which was located at the time the cause of action accrued, or the contract was made out of which said cause of action arose.</p> <p>3! Where suit was brought by an administrator, proof of his representative character was unnecessary, where no plea of ne ungues administrator was filed.</p> <p>4. An absolute refusal to pay by an insurance company, is a waiver of the sixty days time from proof of death, reserved by the policy, within which to make payment.</p> <p>5. Where a policy, upon the ten annual premium plan, provided that after two annual payments, the policy should be valid for as many tenths of the amount insured as premiums had been paid, notwithstanding subsequent default, and four payments had been made prior to death:</p> <p>Helel, that all the conditions and stipulations embraced in the policy for the full amount, attached to the liability for the fractional part.</p> <p>6. If the insured died by his own hand, then the policy is void, unless it be clearly shown that at the time the act was done, his mental condition was such as to render him incapable of distinguishing right from wrong to such an extent as to render him legally and morally irresponsible for his acts and conduct The fact that the insured committed suicide, is not of itself evidence of insanity.</p> <p>7. The verdict, so far as it covered twenty-five per cent, damages and $1,000 attorney’s fee, upon the ground that the refusal of the defendant to pay was in bad faith, had no evidence to support it.</p>

<p>Insurance. Policy. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.</p> <p>Reported in the decision.</p>

<p>Partnership. Evidence. Notice. Guaranty. Charge of Court. New trial. Before Judge Clark. Macon Superior Court. December Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Where, upon the trial of a claim case, the plaintiff offered in evidence the execution under which he levy purported to have been made, having thereon the following entry:</p> <p>“This execution issued in Hell of lost original. April 29th, 1873.</p> <p>(Signed) “Jesse J. Bradford, Clerk S. C. M. C.”</p> <p>Objection to its admissibility was properly overruled. Such entry, without more, did not affect the validity, which it otherwise appeared to have, as an original execution.</p>

Equity. Practice in the Supreme Court. Landlord and tenant. Factors’ lien. Before Judge Underwood. Floyd county. At Chambers. November 18, 1875. In September, 1873, Simpson Fouche sold a certain tract of land to Felix G. Sheats, giving his bond conditioned to make a title thereto on the payment of the purchase money. The first payment, $1,500 00, became due on January 1st, 1874.

<p>'When there was some testimony before the jury sustaining the plaintiff’s case, the order allowing a non-suit was error, even though such evidence would have been excluded as inadmissible had it been objected to.</p>

<p>An administrator, though a creditor of intestate, is a competent witness to show by debts of the estate other than his own, the necessity to seii land, and to show his acts and the state of his account since the administration, but not to prove any debt due to him from the intestate arising from a partnership between them, or otherwise.</p>

<p>Railroads. Evidence. Negligence. Pleadings. Verdict. Sunday. Before Judge Tompkins. Richmond Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Though a judgment de bonis testatoris be conclusive of' assets against an executor in a court of law, yet, on a proper case ma,de, based on equitable principles, a court of equity will grant relief against a suit to make such executor individually and personally liable thereon.</p> <p>2. Where the bill in equity alleges that the assets were ample at the time the judgment de bonis was rendered, and therefore the executor did not plead plene administravitprceter, but that the assets, and only assets, which ever came to his hands were a life policy and certain lands in Texas, and that the life policy was compromised, and an open account paid out of the fund realized, by the consent and with the acquiescence of the creditor, and that the lands in Texas were, also, by his consent, administered in that state, and a sum much less thanitheir estimated value realized therefrom, and the answer denies the allegation of acquiescence and consent, and such allegation is supported by the affidavit of a disinterested .person, and the court grants an injunction restraining a suit at common law against the executor individually, this court will not control the discretion of the court below in granting the injunction.</p>

<p>Where an indictment contains two separate counts for offenses which may be properly joined therein, the one for a higher grade, and the other for a lower grade, if of the same nature, connected with, and growing out of the same transaction, though the punishment for each grade may be different, ' and upon the trial the jury find a general verdict of guilty, the legal intendment of such a verdict is to find the defendant guilty of the highest grade charged.</p>

<p>1. When the parties are not set out with sufficient certainty to ascertain who are the defendants to a suit, no valid judgment can be rendered against any one.</p> <p>2. A summons of garnishment which requires the agent of a railroad company to answer what he owes to the defendant, is not sufficient to found a judgment thereon against the company as garnishee.</p>

<p>Railroads. Torts. Before Judge McCutchen. Gordon Superior Court. February Term, 1875.</p> <p>Reported in the decision.</p>

<p>Criminal law. Confessions. Evidence. Charge of Court. Before Judge McCutchen. Bartow Superior Court. December Adjourned Term, 1874.</p> <p>Reported in the opinion.</p>

Equity. Parties. Before Judge Hill. Bibb county. At Chambers. July 8th, 1875. This is the second time this case has been before this court: See 54 Georgia Reports, 231. Reported in the decision.

<p>A negotiable note for value imports that it is given for a consideration, and it devolves on the defendant, who pleads that it is without consideration, to show the fact, and proof that a note previously given by another for the same amount, and satisfied by the payee about the time the note sued on was given, is insufficient to show the want of the consideration without more, though one note was given, by the father, and satisfied by him, and that sued on was given by the daughter to the same payee.</p>

<p>(Jackson, Judge, having been of counsel, did not preside in these cases.)</p> <p>The Code limits the right to recover for the homicide of another to the widow or children of the deceased, omitting the words, contained in the act of 1856, “if no child or children, it shall vest in his legal representative.” This court is bound to presume that such words were intentionally omitted, and the right of action thereby given no longer exists.</p>

<p>1. Where the fact exists in the knowledge of the levying officer, that there was no personal property to be found whereon to levy the execution, it is not error in the court to allow him to make the entry nunc pro tunc.</p> <p>2. Where such entry of mine pro nunc is made at the term of the court preceeding.that of the trial, unless the judgment allowing such entry be excepted to at the term when rendered, under section 4254 of the Code, it will not be considered by this court in the bill of exceptions certified at the trial term of the claim case.</p> <p>3. A mortgagee may purchase the mortgaged land sold under a tax execution, and if the sale be fair, and there be no fraudulent collusion between him and the mortgagor, the -sheriff’s title to him will be good against a judgment creditor whose lien is older than the mortgage, especially where the tax execution is older than the mortgage.</p> <p>4. Where, in such case, the mortgagor has had the land set apart as a homestead, and by proceedings in chancery and direction of the chancellor, has mortgaged the same to the mortgagee, and the mortgagee, after his purchase at the sheriff’s sale under the tax execution, takes a deed from the mortgagor and his wife, with the approval of the ordinary, to clear away all cloud from his title, he is not estopped on the trial of the claim case from denying title in the mortgagor subsequent to the sheriff’s deed.</p>

Equity. Fraud. Before Judge Hill. Bibb Superior Court.' October Term, 1874. Comer filed his bill against Granniss, making, in brief, this case: In July, 1873, complainant instructed one J. F. Hanson, a broker, to buy, in Macon, for him one thousand shares in the “Southern Insurance Company,” located in Savannah, where complainant resided, at $1 50 per share, and not to exceed $1 75 per share; the par value of each share being $10 00 per share, with $2 50 per share paid in.

<p>Injunction. Municipal corporation. Streets. Before Judge Tompkins. Chatham- county. At Chambers. July 31st, 1875.</p> <p>Reported in the opinion.</p>

<p>Injunction. Vendor and purchaser. Before Judge Hill. Bibb county. At Chambers. July 6th, 1875.</p> <p>Reported in the decision.</p>

<p>• Judgments. Statute of limitations. Before Judge Kiddo. Clay Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Contracts. Evidence. Before Judge Buchanan. Troup Superior Court. May Term, 1874.</p> <p>Reported in the decision.</p>

<p>Sales. Contracts. Pleadings. Evidence. Collateral security. Before Judge Buchanan. -Troup Superior Court. November Term, 1874.</p> <p>Reported in the decision.</p>

<p>Arbitrament and award. Judgments. Before Judge Buchanan. Floyd Superior Court. January Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Wfrere, pending .a difficulty between the defendant and another, a third person interposed betwen them, when the former struck at him with an axe, saying that if he did not get out of the way he would knock his brains out, a verdict finding the defendant guilty of assault with intent to murder is contrary neither to the law nor the evidence, even though the blow did not take effect. .</p> <p>2. The newly discovered evidence being merely cumulative .and for'the purpose of impeaching witnesses, was no ground for new trial.</p>

<p>Pleadings. Amendment. Before Judge Underwood. Floyd Superior Court. January Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Warranty. Levy and sale. Bankrupt. Before Judge Underwood. Floyd Superior Court. January Term, 1875.</p> <p>Reported in the decision.</p>

<p>. Partnership. Joint obligors. Bankrupt. Pleadings. Judgments. Before Judge Buchanan. Troup Superior Court. November Term, 1874.</p> <p>Eeported in the opinion.</p>

<p>Equity. Receiver. Lien. Judgments. Before Judge Buchanan. Floyd Superior Court. January Term, 1875.</p> <p>Reported in the decision.</p>

<p>Criminal law. Indictment. Evidence. Before Judge Hall. Monroe Superior Court. February Term, 1875.</p> <p>Reported in the opinion.</p>

<p>When a landlord rents a store-house to a tenant for the purpose of selling goods therein, in th& absence of the tenant’s knowledge to the contrary, the law will presume that it is in a condition suitable for the purpose for which it was rented by the tenant, and if it is not, and damage results to the tenant’s goods in consequence of the defective condition of the rented premises, the landlord is liable therefor; and'if after the premises have been rented, the same become unfit by reason of the roof of the house becoming leaky, or other similar cause, so as to render the house unsuited for the purpose for which it was rented, the landlord is bound, upon notice being give to him of the defect by the tenant, to make the necessary repairs within a reasonable time thereafter.</p>

<p>1. The system of homestead and exemption provided for by the constitution is voluntary, not compulsory; and the laws enacted for the setting apart and valuation thereof should be so construed as to harmonize with the voluntary character of the constitutional system.</p> <p>2. Therefore, section 2022 of the Code, which enacts that “ should the husband refuse to apply for the aforesaid exemption, his wife, or any person acting as her next friend, may do the same, and it shall be as binding as if done by the husband,” should not be construed to mean that if the husband not only refuses to apply himself for homestead, but solemnly objects on record as a party defendant, to his wife’s doing so, that then the application shall be granted and the homestead carved out of his individual property over the objection so made by him.</p> <p>3. No man’s property can be set aside as homestead and exemption without his consent, express or implied; if his wife, or some one as her next friend, apply and he. fails to interpose objection by plea, his assent will be implied; but if he he does interpose objection by plea, the presumption is rebutted, and the homestead cannot be set apart out of his property. The distinction is clear between his refusal to apply himself, and his objecting to another applying in behalf of his family; and the statute will be construed to mean that though he refuse to act, his wife’s application will be granted unless he object by plea; then it will be refused.</p>

<p>The fair and legitimate construction of a contract to furnish timber and saw-logs to meet the demand of a certain mill and to keep the same constantly running during the continuance of the contract, is not that the party assuming the obligation should furnish only a sufficient quantity of timber to supply the demand of the purchasers of lumber from said mill, but that he should deliver a sufficiency of logs, etc., to keep the mill constantly running independent of what might be the demand of the purchasers.</p>

<p>Administrators and executors. Witness. Promissory notes. Statute of limitations. Principal and agent. Before Judge Bartlett. Morgan Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Equity. Practice in the Superior Court. Motion. Decrees. Judgments. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1875.</p> <p>Reported in the decision.</p>

<p>Where the defendant was indicted on two counts for simple larceny and receiving stolen goods, knowing them to have been stolen, the gist of the offense in the last count is the felonious knowledge that the goods were stolen, and if the jury find a special verdict of “guilty of receiving stolen goods,” without more, the verdict is bad, and the judgment will be arrested: See ¿8 Georgia, 3Ó7.</p>

<p>When an offense is committed against the laws of the United States, the person charged therewith must be prosecuted therefor in the courts of the United States. The state courts have no jurisdiction thereof.</p>

<p>Foreign corporations. Actions. Before Judge Tompkins. Chatham Superior Court. February Term, 1875.</p> <p>Eeported in the opinion.</p>

<p>Statute of frauds. Part performance. Pleadings. Powers. Contracts. Before Judge James Johnson. Talbot Superior Court. September Term, 1874.</p> <p>Reported in the decision.</p>

<p>New trial. Newly discovered evidence. Before Judge Schley. Effingham Superior Court. April Term, 1874.</p> <p>Reported in thé opinion.</p>

Trusts. Power. Husband and wife. Mortgage. Evidence. New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1874. The letter referred to in the second head-note was from Frank H. Miller, Esq., the attorney employed to draw the power signed by the life tenant, to the trustee.

<p>1. Where the court charges the jury that if a purchaser from the mortgagor has actual notice of the mortgage, he takes his title subject to the incumbrance of the mortgage, and seven years possession of the premises will not give him a prescriptive title, and there is evidence tending to show actual notice, this court will not overrule the discretion of the court below in refusing a new trial on the ground that the verdict is contrary to the charge of the court, or to the law, or to the evidence.</p> <p>2. In such a case, actual notice to the agent who purchases for the principal, is, in the sense of the law, actual notice to the principal.</p> <p>3. Where the purchaser buys from the mortgagor, and his title is a deed from the mortgagor, with seven years possession of the land, and where the mortgage is legal and has been recorded within the time prescribed by law, the purchaser buys the title of the mortgagor incumbered with the lien of the mortgage. He does not hold adversely to the mortgagee, and no title by prescription is acquired by him so as to defeat the mortgage lien.</p> <p>4. Where the court is requested by the claimant to deliver his charge in writing, and the plaintiff in execution makes certain requests in writing, and the court adds thereto orally, it is error; and where, in such a case, at the close of his charge, delivered in writing, the court, without the consent of claimant’s counsel, superadds any remarks to the jury on the law of the case, this is also palpable error under our Code, and in all such cases a new trial will be granted, unless it plainly appears from the law and facts disclosed in the record that such new trial would not change the verdict.</p> <p>5. Where interrogatories are taken without commission regularly sued out, under section 3891 of the Code, they need not show the residence of the witness; a substantial compliance with the general law is all that is necessary, and if the answers be legal on other grounds than those which have reference to technical points of the execution of the interrogatories, they may be read to the jury.</p> <p>6. If two sets of interrogatories be sued out for the same witness by the plaintiff, and one set be ruled out at the instance and on motion of the claimant, as illegally executed, and the other set be admitted as legal, the illegal set cannot be used by the claimant to contradict and impeach the witness; the testimony excluded as illegal for one purpose, on motion of the claimant, cannot be invoked by him as legal for another.</p> <p>7. Counsel are required to know on what docket their cases are entered by the clerk, and an agreement by them and the court that the dockets shall be called and tried in a certain order — .that is, the issue docket first, the equity next, and the claim last — furnishes no good reason why a claim case entered on the issue docket should be postponed to the claim docket, although the counsel announces that he is not prepared on the law and the testimony, in consequence of the case having been called for trial sooner than he expected, it appearing that said claim case formed an issue for trial and was entered on the issue docket and on no other.</p> <p>8. Interrogatories sued out by claimant for the plaintiff with the usual questions, and not requiring the plaintiff to answer to his information and belief as well as knowledge, are well answered if the plaintiff answers as any other witness from knowledge; if the plaintiff desires to probe his conscience, as in a bill for discovery, he must ask him to answer to the best of his information and belief as well as his knowledge.</p> <p>9. "Where interrogatories are sued out for witnesses who do not answer as much as counsel expected them to answer from his knowledge of what they would testify, and the witnesses are not interrogated upon the only point which cannot be proved by other evidence, and all defects to the execution are waived by the other side, a continuance ought not to be granted; but if two witnesses resided in the county when subpoenaed and resided there when counsel last heard from them — his client being a non-resident, and counsel making the showing — -and the testimony is material, the case should be continued.</p> <p>10. It is not necessary to make the legal representative of the defendant to the mortgage fi. fa. a party to show payments on the fi. fa., or fraud and collusion between a former administrator of the defendant and the plaintiff in regard to the fi. fa., or the mortgage; the claimant, in the claim case between the plaintiff in the mortgage fi. fa., and himself, may prove anything going to show that the execution is paid, or any part of it, and any fraud or collusion between the plaintiff and anybody, or any other equitable defense he may have, touching the mortgage and its interference with his claims to the land covered by it.</p> <p>11. If it appear from the face of the execution that it is against the administrator, and not against the party individually, the fi. fa. is a good and valid valid process, though the little word, “as” be not prefixed to the word “administrator."</p> <p>12. It is enough for the plaintiff in fi. fa. to introduce to the jury his fi. fa. without the petition and the rules nisi and absolute; the claimant may introduce the balance of the record, if he wishes to do so; and when the mortgage is also introduced, if the fi. fa. identifies it as that on which it is founded, the lien of the fi. fa. will relate back to the date of the mortgage.</p> <p>13. The record of a mortgage made in time is notice to the world; its lien is good for twenty years, and it may be foreclosed at any time within that period; and if the purchaser of the land covered by such a mortgage, hold by title from the mortgagor, whether that title be from the state down, passing through the mortgagor, or by prescription, the mortgage is good for twenty years against such purchaser.</p> <p>14. If the mortgagee indulges the mortgagor for a consideration until he becomes insolvent, such indulgence will make the purchaser’s title good; but if, without any consideration, he indulges him, such indulgence, unless the facts show fraud, will not relieve the title of the purchaser from the encumbrance of the mortgage. ,</p> <p>15. Although the court may commit error on legal points complained of, this court will not 'grant a new trial, where it plainly appears, from our view of the law and the portion of the evidence undisputed by the parties, that the verdict in any event must stand.</p>

<p>The words alleged in the plaintiff’s declaration, to-wit: “ Peter Smith had told lies, and sworn to them,” were actionable per se. The plain import of the words was to charge the plaintiff with the offense of false swearing.</p>

<p>1. One who receives stolen goods, knowing them to be stolen, is an accomplice in the larceny, and on his uncorroborated testimony, the defendant cannot be convicted.</p> <p>2. If he be acquitted of the offense of receiving stolen goods, though the evidence show's them at his store under suspicious circumstances, the jury may well conclude that he is not an accomplice, and • if the question be fairly submitted to them by the presiding judge, this court w'ill not interfere.</p> <p>.3. Light circumstances, such as constant and easy access to the place w'hence the goods are stolen, the defendant’s presence thereabouts when the goods are missed, the fact that he drove a single dray there and that such a dray was seen being unloaded, about the break of day, where the stolen goods were found, may be w'eighed by the jury as corroborating proof, and if the presiding judge fairly submits that question, this court will not interfere.</p> <p>4. Evidence that more than §50 00 worth of goods are missed by the owner, at the time of the larceny, from the house, and found where defendant acknowledged he carried them, though it be proved that he converted only a part to his own use, and only a part was recovered by the owner, is sufficient on the question of value to sustain a verdict that defendant stole from the house goods of greater value than $50 00, and is guilty of felony.</p>

<p>'I. This court is not aware of any valid law authorizing the county court to entertain a motion for a new trial.</p> <p>2. The proper remedy of a defendant who has been convicted before that court, is by writ of certiorari in the first instance; but where a motion for a new trial was made and overruled, and the writ of certiorari sued out to such judgment, the whole record being before the superior court, it was competent for that tribunal to look into the same and to consider the errors assigned.</p> <p>3. Where a witness referred to a book in his pocket as containing a statement of an account which was material to the issue then being tried, it was error in the court not to require the same to be produced.</p> <p>4. The judgment of guilty rendered by the court was contrary to the evidence.</p>

<p>1. A levy on sufficient personal property to satisfy the execution, undisposed of on tlie face thereof, is no legal ground for withholding the execution from the jury, if it be shown, aliunde, to the satisfaction of the presiding judge, that such levy was unproductive and without injury to the defendant.</p> <p>2. A bona fide purchase of land by parol, with payment of part of the pur" chase money, and immediate entry by the purchaser into open and exclusive possession, more than four years before the levy of the • execution against the vendor, and the payment of the balance of the purchase money, and taking a conveyance within four years prior to the levy, will, if such possession be continuous, discharge the land from the lien of the judgment. In such case, the four years’ possession must be open and notorious for the full term.</p> <p>3. A charge to the effect that if the defendant in fi.fa. and purchaser agreed to keep the trade a secret, the possession under it would be no protection to the claimant, who is the purchaser, is too broad. Such an agreement is . a circumstance tending to show bad faith in the sale, and to cast suspicion upon the fairness of the trade and the possession thereunder, but, by itself it is not enough totally to destroy the claimant’s right. It should be considered in connection with the explanation of the parties and the other facts of the case, and the charge of the court should have been so restricted and guarded.</p> <p>4. Where the evidence is conflicting, this court will not control the discretion of the court below in refusing a new trial on the ground that the verdict is contrary to the charge.</p> <p>5. Diligence must be shown, and party and counsel must swear that they did not know of the testimony at the time of the trial, before the court will grant a new trial on the ground of newly discovered testimony.</p> <p>6. Where the court erred in his charge on material points of law on which the jury might have found their verdict without considering the real issue of fact, on which the case should have been put by the court and determined by the jury, this court will grant a new trial, unless the evidence be so decisive, and without conflict, as to have required the verdict, notwithstanding such errors in the charge.</p>

<p>Pleadings. Former recovery. Evidence. Practice in the Superior Court. Practice in the Supreme Court. Demurrer. Damages. Water. Amendment. Continuance. Before Judge Hall. Pike Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Laborer’s lien. Mechanic. Before Joseph' Ganahl, Esq., Judge pro hac vice. Richmond Superior Gourt. April Term, 1875.</p> <p>Reported in the decision.</p>

Contracts. Illegal consideration. Criminal law. Before Judge Haul. Newfcou Superior Court. March Term, 1875. The principles of law covered by this decision are sufficiently clear without a report of the facte beyond those embraced in the opinion.

<p>Criminal law. Foreign corporations. Embezzlement. Larceny after trust. Indictment. Practice in the Supreme Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Executions. Contempt. Evidence. Before Judge Bartlett. Greene Superior Court. November Adjourned Term, 1874.</p> <p>Reported in the decision.</p>

<p>1. The record in this case does not furnish any clear evidence of error in the refusal to grant a new trial.</p> <p>2. If, upon a bill by several complainants against one defendant, brought to recover a tract of land from the defendant, and to make partition thereof among the complainants, the jury find for the complainants (upon the condition of their paying to the defendant a certain sum of money) seven-ninths of the premises, and for the defendant two-ninths, the verdict sufficiently disposes of the issues in the case, although it is silent as to partition and omits to provide for the sale of the land.</p> <p>3. The scheme of relief contemplated and provided for by such a verdict is, that the complainants, upon making the payment within a reasonable time, are to be admitted as tenants in common with defendant, they with an interest of seven-ninths, and he with an interest of two-ninths; and, upon failure to make such payment in a reasonable time, their right to be so admitted ceases, and the defendant retains the land as sole owner, free from all claim to it by complainants.</p> <p>4. The decree rendered should have been in conformity to the verdict thus construed; and it is still competent to render such decree, which ought, likewise to define what is a reasonable time, under all the circumstances of the case; and, as a guide to the determination of this question, the chancellor should hear evidence for himself, or refer the question to a jury, according to his discretion.</p> <p>5. It was error, in decreeing upon such a verdict, at the instance of the defendant, to declare the complainants do recover seven-ninths, and the defendant two-ninths of the premises, that the defendant have and recover of the complainants the said sum of money, and that execution issue for the same, to be levied upon the complainants’ seven-ninths of the land.</p>

<p>1. Where a prisoner is in the common jail charged with a bailable offense, and the sheriff of the county take bail and discharge him from prison, though the bond be executed on Sunday, it is valid, and if the defendant does not appear at court, the bail is bound. The case is within the exception of section 4579 of our Code, it being a work of charity or necessity.</p> <p>2. If it be apparent from the record that the forfeiture of the bond has been very irregular — doubtful whether the execution on it was not issued at the first term before it was finally forfeited; if the names of the securities were not called on its forfeiture; if counsel for thesecurity asked if it was his client’s case, and the judge responded it was not, there being an issuable plea filed by the security; if the sheriff witnessed all this, and if in addition thereto a motion to set aside the judgment of forfeiture was pending in court — a rule against the sheriff to pay the money on such execution instanter ought not to be made absolute. The facts relieve the sheriff from contempt in not executing such process.</p>

<p>Assignment. Debtor and creditor. Before Judge Gould. City Court of Augusta. February Term, 1875.</p> <p>Reported in the decision.</p>

<p>County matters. Courts. Sheriff. Before Judge Strozer. Dougherty Superior Court. October Term, 1874.</p> <p>Reported iu the opinion.</p>

<p>Foreign administrators. Administrators and executors. Exemplifications. Ejectment. Before Judge Hopkins. Clayton Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>(Bleckley, Judge, having been of counsel, did not preside in this case.)</p> <p>1. Mandamus was prayed directing the sheriff to accept an affidavit of ille- • gallity and to refrain from selling certain property under execution. The petition was presented to the judge in vacation, who ordered the sheriff to accept the illegality or to show cause at the next term of the superior court to the contrary, and in the meantime that he suspend the contemplated sale. To this judgment exception was taken, and the question brought here for review:</p> <p>Held, that the writ of error should be dismissed as prematurely brought. The order excepted to was purely interlocutory and not final.</p> <p>2. The judgment was not an injunction so as to bring the writ of error within the provisions of the statute specially applicable to that class of cases. It merely suspended the sale of the property until the petition for mandatnus could be finally passed on in term time.</p>

Sales. Damages. Before Z. T. Odom, Esq., Judge pro hao vine. Dougherty Superior Court. April Term, 1875.

<p>Where A sells goods to B with a view to defraud his, A’s, creditors, the law will not aid him to collect his debt, but will leave the parties where it finds them.</p>

Statute of limitations. Removal from the state. Before Judge Bartlett. Putnam Superior Court. September Term, 1874. The account sued on in this case was made in September and October, 1867. For the remaining facts, see the decision.

Insurance. Statute of limitations. Principal and agent. Carriers. Perils of navigation. Before Judge Wright. Dougherty Superior Court. April Term, 1875. This is the third time this case has been before this court. See 46 Georgia Reports, 652.

<p>1. Where a rule nisi for contempt of court charges the defendant with an attempt to bribe another to warn witnesses to avoid subpcenas issued for them, and the answer of the defendant purges himself of the contempt, and the traverse of that answer by the solicitor general is not sustained by the.proof, and the court fines the defendant $100 oo:</p> <p>Held, that the court erred; and this court, while reluctant to interfere with the courts below in matters of contempt, will correct such an error.</p> <p>2. Where the subpoenas for the witnesses, in connection with whom the contempt is charged, issue in blank as to the names of the parties to the case:</p> <p>Held, that such subpcenas are not valid processes on which to predicate such rule for contempt.</p>

<p>1. Plaintiff recovered ajudgment against defendant on December 9th, 1861. At the March term, 1869, the defendant moved to set aside said judgment on the ground that it had been rendered for the hire of a slave. The court so ordered. At the March term, 1874, the plaintiff moved to set aside said vacating order because based on a grouud unknown to the law, unconstitutional, and beyond the jurisdiction of the court to pass. The court sustained the motion:</p> <p>Held, correct.</p> <p>2. The statute prescribing the time within which a judgment should become dormant, was an act of limitation, and was suspended during the late war, and until July 21st, 1868.</p> <p>3. Notice of a motion to set aside a judgment should be given to the adverse party.</p>

<p>If a garnishee, by his answer, plead a set-off against all the plaintiffs, and he admit to the court at the trial,’ without amending his answer, that his set-off is against some of the plaintiffs only, his set-off will not be allowed. In such case, it cannot be said that the garnishee has plainly, fully and distinctly set forth his defense, and while the rules of pleading have, in this state, been much relaxed, it is still necessary that the 'allegations and proof shall substantially correspond.</p>

<p>Debtor and creditor. Statute of frauds. Before Judge Knight. Cobb Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. An employee cannot recover damages from a railroad company for injuries sustained by bim on account of the negligence of a co-employee, unless without fault himself, even though in performing the act which resulted in the injury he was acting under the orders of a superior.</p> <p>2. The charge, being without evidence to support it, was error.</p>

<p>An execution from the county court, issued by the clerk de facto and signed by him officially, is not illegal because the clerk practiced law at the time, and was one of the attorneys of record for the plaintiff in the execution.</p>

<p>Attorney and client. Fees. Contracts. Champerty. Before Judge James Johnson. Muscogee Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>1. Where suit is brought to recover the purchase money paid for land on account of a failure of title, or upon the basis of a rescission for fraud, and the defendant pleads the general issue, and also a special plea setting up an indebtedness to the defendant for the balance of the purchase money, it was error in the court to exclude evidence sustaining said second plea.</p> <p>2. Where the plaintiff seeks to recover the purchase money paid by him for land, treating the contract of sale as rescinded, he must account for the value of the use thereof whilst he was in possession.</p> <p>3. Where the main question in issue turned upon the terms of a verbal sale of land, and one of the parties has given his version, the other may testify as to what was said and done upon the same occasion.</p> <p>4. Irrelevant and hearsay testimony should be excluded.</p> <p>5. The fact that a juror was one of the jury which tried the case upon a former trial, is no ground of new trial. The exercise of ordinary diligence would have enabled the defendant, or his counsel, to have discovered the fact before the trial.</p> <p>6. Where the right of the plaintiff to recover depends upon whether he has been evicted from certain lands purchased from the defendant, under paramount title, such question is one of fact for the determination of the jury.</p> <p>7. To charge upon an assumed state of facts is error.</p> <p>8. To charge that one of the parties to a suit, under a certain writing in evi dence, did not have a title, is an invasion of the province of the jury, and error.</p> <p>9. In this state there is no implied warranty of the title to land in the sale of it.</p> <p>10. To entitle the plaintiff to treat the contract of sale of the property as rescinded as a foundation for the recovery of the purchase money paid therefor, where there was no covenant of warranty, he must show such fraud on the part of the defendant in respect to the title as would authorize a rescission.</p>

<p>1. In order to convict the prisoner of receiving stolen goods knowing them to be stolen, the larceny of the goods and their ownership must both be proven, with reasonable certainty, as alleged in the indictment.</p> <p>2. In accounting for the possession of the goods the prisoner, after proving that they were purchased and received in his absence by an agent, may show, as a part of the res gestee, what was said to such agent by the seller in respect to the title or ownership, at the time of the agent’s purchase.</p>

<p>1. Where there is no evidence in the record that the bailee received the goods entrusted to him in the county of Fulton, and state of Georgia, but where the goods were sent by the bailor, from Louisville, Kentucky, to the purchaser from the bailee at Talladega, Alabama, direct, a prosecution of the bailee for larceny after a trust of these goods, will not lie in Fulton county, Georgia, although the goods were sent direct to Talladega, by the direction of the bailee, and although he lived and did business in Fulton county, Georgia, and had agreed to consider the goods consigned to him and to be responsible therefor as consignee. -</p> <p>2. If there be proof that the proceeds of the goods sold to the bailee in Georgia, but sent by his order to the purchaser in Alabama direct, came into the possession of such bailee in Fulton county, Georgia, and on demand upon him here, these proceeds were not delivered to the consignors nor their value paid to them, but were converted by the bailee to his own use, these facts, if not sufficient to sustain a prosecution of the bailee for larceny after a trust in Fulton county, Georgia, go far to show probable cause for the prosecution, and in any event, will largely mitigate the damages.</p> <p>3. The advice of counsel, while of itself, under our Code, it is no protection to the defendant in a suit for a malicious prosecution, may yet go to the jury as a circumstance tending to show want of malice, and the existence of probable cause, and in mitigation of damages; but a charge to the effect that if a client represented the true state of the case to his attorney, and received his advice and acted on it, this would furnish evidence of probable cause, but if he represented the case untruly, then such advice would not be any protection, is too broad, and might lead the jury to believe that if the representation of the client were true, the advice of counsel would be a protection to him, whereas, our Code expressly declares that in such case the client shall not be relieved from liability for damages.</p>

<p>Criminal law. Rape. Evidence. Infants. Indictment. Attorneys. Argument. Before Judge Wright. Dougherty Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Savannah has statutory power to tax all private real estate within the corporate limits not expressly exempted by law.</p> <p>2. Lands brought within the corporate limits by the act of 1838 are not so exempted.</p>

<p>1. The stopping or impeding a private way is a private nuisance.</p> <p>2. Such a nuisance may be abated by a proceeding before two justices of the peace and a jury, under sections 4094 and 4098 of the Code.</p>

<p>The act of 28th of February, 1874, taxing the Atlantic and Gulf Railroad Company an amount exceeding one-half of one per cent, upon its annual net income, is not unconstitutional, as impairing the obligations of the contract embraced in its charter.</p> <p>Bleckley, Judge, concurring.</p> <p>1. Whatever power legislative bodies may have in other states of the union, to part with or limit the essential prerogatives of sovereignty, no such power exists, or ever has existed, in the general assembly of Georgia. Consequently, all exemptions from the common burdens of taxation hitherto granted by the statute to corporations or others, ought to be construed as privileges only, and as revocable at the will of the legislature.</p> <p>2. If, in any case, the state has received into the public treasury, directly from the grantees, a valuable-consideration for the grant of exemption, upon afterwards withdrawing the privilege before the time has expired for which it was granted, an equitable proportion of the consideration ought, as a matter of common justice and public virtue, to be refunded; but the duty to refund is in the nature of a mere debt for money had and received, and the good faith of the state must be trusted to provide for its payment. Payment is not a condition precedent to resuming the exercise of the taxing power unimpaired in its original extent and vigor. The taxing power cannot be lost or abridged either by contract or estoppel.</p>

<p>Administrators and executors. Clerk of the Superior Court, Bonds. Before Judge James Johnson. Talbot Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. When a party applies for the writ of certiorari, under section 4056 of the Code, he must make affidavit not only that he believes, but that “ he is advised ” that he has good cause for certiorari.</p> <p>2. When there is no question of fact, in the judgment of the superior court, involved, and hence no need of a new trial, it is “ the dujy of the judge to render a final judgment and have it executed in the case without sending it back to the tribunal below.”</p> <p>3. Strict pleading is not required in the justice courts, and the omission of the word “ as ” before executor, in a suit there against such executor, or in the verdict or judgment against him, does not vitiate the' proceeding.</p>

<p>1. Acts of preparation to meet and resist an aggressor cannot be urged by him as provocation. The drawing of a weapon with intent to use it upon one of two brothers present, will justify the procurement of a stick with which to resist the intended assault; and, hence, possession of the stick will not be such provocation as will reduce to manslaughter a homicide committed by the assailant.</p> <p>2. Where there is not an assault or an attempt to do a serious personal injury, but provocation by abusive words only, the homicide is not manslaughter.</p> <p>3. A charge that recites, hypothetically, a state of facts more favorable to the prisoner than the evidence warrants, and adds that if these facts be found, the killing is not murder but manslaughter, unless the. evidence shows it to, be justifiable, is not an error of which the prisoner can complain.</p> <p>4. In this case the offense proven was clearly murder, and the verdict was not contrary to law or to evidence.</p>

<p>1. Where a bill of indictment properly charges the defendant with an assault with intent to murder, and alleges such striking and wounding as would support a verdict for assault and battery, a verdict for an assault will be sustained, though the assault, as a separate offense, be not charged to have been unlawfully committed, and the judgment will not be arrested.</p> <p>2. Taking the whole indictment together, the unlawfulness of the assault appears with sufficient legal certainty.</p>

<p>Conflicts of evidence and credibility of witnesses are for the jury, and a reviewing court, even in an extreme case, will generally acquiesce in- a doubtful verdict where the judge who tried the cause has refused to interfere.</p>

<p>Landlord and tenant. Liens. Before Judge Hill. Bibb Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Burglary in the night time being established, attended with larceny of meat, flour, rice, two bolts of cloth and a lady’s skirt, all stolen from within the building which was broken open, the prisoner’s participation in the burglary is sufficiently made out by evidence that he was a mechanic, and that the breaking was with a tool used in a skillful manner; that next day, grains of rice were found scattered along from the building to his shop, situated in the same enclosure, some grains also being within the shop; and that on executing a search warrant in the afternoon of the same day, at the prisoner’s dwelling-house, he being present, the cloth and skirt were found there concealed in his bed: the prisoner failing at the trial to offer any explanatory evidence, or any evidence of good character, but resting upon his statement, made first immediately after the goods were found by the officer in his possession, and repeated at the trial to the jury, which statement was, in substance, that he was absent when the goods were brought to his house on the night of the burglary; that he found them there on his return, and was told by his family that they were brought and left by another man.</p>

<p>1. On the trial of defendant for murder, all the testimony going to show motive is material to the issue, because there can be no murder without malice and no malice without motive.</p> <p>2. Therefore, testimony to the effect that defendant had step-children living with him, and who left him at night and went to deceased’s residence, and the reasons which induced, them to do so, particularly the fact that he had lived in illicit cohabitation with one of the girls and wished to marry her, coupled with the other fact that deceased had taken care of these children, and refused to give them up, and resisted a habeas corpus suit for them, is admissible as showing motive for, and .malice in, the homicide.</p> <p>3. Letters of defendant to the girl he had so used and wished to marry, and to others about her, evincing great anxiety to get possession of her person, though purporting to have been written at a place where he had never been, and without date, are admissible for the same reason. '</p> <p>4. - Disputes amounting to the demand for the step-children by defendant and the refusal to deliver them up by deceased, and. culminating in 'a habeas corpus case about them, may well be termed “ a difficulty,” and the charge of the court that the state claimed that there had been a difficulty between defendant and deceased, is supported by such evidence, and is not hypothetical.</p> <p>5. The sayings of the defendant as to all matters material to the issue, are admissible; and as the capacity of the horse he is said to have been riding for swiftness, was material on account of the distance he had to ride and the time within which he had to make it, his sayings are admissible about such capacity, as well as about everything else material, as much so as any threats he may have made.</p> <p>6. Questions of fact are for the jury, especially in cases of circumstantial, evidence ; and where no error of law has been committed, and the court has submitted to them the law in regard to such evidence and no complaint is made about the charge in this respect, and there is ample evidence to authorize the finding, this court will not interfere — the verdict being neither against the law nor the evidence.</p>

<p>Actions. Partnership. Verdict. Jurisdiction. Venue. Joint and several obligations. Before Judge Gibson. Burke Superior Court. May Term, 1874.</p> <p>' Reported in the opinion.</p>

<p>1. A husband may be indebted to the wife for the rents of her separate real estate, and such bona fide indebtedness is a valuable consideration to support a deed from him to her.</p> <p>2. A husband may make a deed in Georgia directly to bis wife, and such deed is valid without the intervention of a trustee.</p> <p>3. In a contest between tbe wife as claimant of the property so conveyed, and other creditors of the husband, the questions are as to the bona fides of the indebtedness of the husband to his wife, and fraud or no fraud in the transaction, and these are questions of fact for the jury.</p>

<p>1. That a defendant was not served with process, had no notice of the suit, did not appear, nor authorize counsel to appear for him; that he was but a surety on the debt, and that the creditor, after judgment, granted the principal indulgence for a consideration and thereby discharged the surety; that the creditor failed to notify the administrator of a co-security, according to law, so that the estate was distributed without knowledge by the administrator that this debt was a charge upon the same, whereby the surety was injured in his right to contribution; and that the judgment itself was finally set aside, are defenses available to the surety, after levy upon his property, by affidavit of illegality, and if they are all known to him at the time of filing such an affidavit, those of them which, without a good legal excuse, he omits to set up therein are gone, and cannot, after the illegality is overruled, be urged in resistance to the execution, either by a second affidavit of illegality or by bill for injunction in equity.</p> <p>2. With a good legal excuse for leaving the omitted defenses out of his first affidavit, the surety may present them in a second (setting forth therein his excuse.) He cannot be denied a remedy expressly given by statute, by a rule of court to the contrary, nor can he be obliged to resort to a court of equity to have his excuse adjudicated.</p> <p>5. That counsel advised that it was useless or improper to embrace the omitted grounds of illegality, and advised also that the included ground was sufficient in law, is not a good excuse for leaving out the omitted grounds, though the counsel was mistaken in his opinion.</p> <p>4. Judgment in favor of an administrator, rendered on a contract with him, maybe collected by him after his dismission; especially if objection be urged by no one but the judgment debtor himself.</p> <p>5. On the hearing of a motion for injunction at chambers, it is not the right of defendant to have a demurrer to the bill for want of equity heard before presenting other defenses upon which he means to rely. The judge may possess himself of the whole case from both parties, and then mature his decision; in rendering which, he should first dispose of the demurrer. The defendant being called on to show cause against the application for injunction, is entitled to show as much cause as he can, but not to cut up the proceeding into several trials and judgments.</p>

<p>1. Where the complainants allege that defendant was indebted to their tester, and had committed a fraud upon him by mortgaging lands to which he had no title, and had immediately after his death applied for and obtained homestead and exemption fraudulently, setting out the acts of fraud, and that this was done before they had received letters testamentary and qualified, and while the estate was unrepresented:</p> <p>Held, that there is equity in the bill.</p> <p>2. Even though the will may have been proven pending the application for homestead, and whilst the note of testator was in suit by one of the executors as bearer, yet when the entire transaction occurred in a few weeks after testator’s death, and before the grant of letters :</p> <p>Held, that the executors are not estopped by failing to resist the homestead pending the probate and qualification as executor.</p>

<p>It is not competent for a judge of the superior court, sitting at chambers, to entertain an original motion for new trial, where no prior order has been passed on the subject in term time. The dissenting opinion of Warner, Chief Justice, in Spann vs. Clark, 47 Georgia, 369, approved and applied.</p>

<p>1. When defendant in ji. fa. went into possession of land after the date of the judgment under bond for titles, and paid part of the purchase money, and then sold the land to claimant, who took title by deed from the vendor to defendant, with the assent and by direction of the defendant, the land is subject to the execution.</p> <p>2. The entire estate should be sold and the vendor be paid the balance of the purchase money out of the fund raised from the sale, and the plaintiff in fi. fa. be then paid the amount of his execution, and the remainder, if any, be paid to the claimant.</p> <p>3. Tlie jury may so mould their verdict that the rights of all parties shall be protected, and the fund divided according to their respective rights.</p>

<p>Practice in the Supreme Court. Injunction. Receivers. Before the Supreme Court. July Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Judgments. Estoppel. Administrators and executors. Before Judge James Johnson. Muscogee Superior Court. October Term, 1874.</p> <p>This is the second time this case has been before this court. See Bradley vs. Johnson, administrator, 49 Georgia Reports, 412.</p> <p>Reported in the opinion.</p>

<p>Set-off. Damages. Torts. Promissory notes. Before Judge James Johnson. Taylor Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Distribution. Administrators and executors. "Wills. Debtor and creditor. Before Judge James Johnson. Marion Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Year’s support. Lien. Estoppel. Waiver. Before Judge Gibson. Richmond Superior Court. October Adjourned Term, 1874.</p> <p>Reported in the opinions.</p>

<p>Will or deed. Before Judge Hall. Rockdale Superior Court. March Term, 1875.</p> <p>Reported in the above head-note.</p>

<p>Homestead. Purchase money. Before Judge Strozer. Calhoun Superior Court. September Adjourned Term, 1874.</p> <p>Reported in the decision.</p>

<p>Principal and security. Debtor and creditor. Before Judge James Johnson. Talbot Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>I. As a general rule, parol evidence is sufficient to show title to personal pro" perty, but where the interest which the party in possession has in the personalty, whether one-half, or any aliquot part, or the whole, is of the very essence of the suit, and absolutely necessary to fix the amount of the recovery, and where it appears that the party in possession purchased from another, and held title from the other in writing, showing the quantity of his interest in the property, the written bill of sale is the best evidence, and parol evidence is inadmissible to show the title. In such case-the possession is controlled and limited by the writing.</p> <p>2. Especially should this exception to the rule be adhered to in the case of a ship or steamboat, the registry of the bill of sale to which, under the laws of the United States, is necessary to entitle the owner to immunities and privileges denied to other vessels.</p> <p>Bleckley, Judge, dissenting.</p> <p>1. Whether a claimant of property has title simply, or whether he has derived title from a prior owner, are two different questions. The former is a general, the latter a more special and particular question. Where mere ownership is sufficient for the purpose in hand, without respect to how or from whom it was acquired, it is enough that the claimant can show any indicia which the law regards as significant of ownership. But where title is to be traced from some definite source, if one or more links be in writing, the writing must be produced or accounted for, not solely because it is the best evidence of title, but because it is the best evidence of certain parts of that particular chain of title which is sought to be established. If, in the given case, that chain must be made out and nothing else will serve, then, the non-production of the writing, admitted to exist and to be accessible, will be fatal. But if the attempt to trace that chain, or any other, was needless in the beginning, the failure simply leaves the party where he was before the attempt was made. He can abandon it as fruitless, and stand upon the general presumption which the law annexes to his own possession and acts of ownership.</p> <p>2. Possession of personal property by one claiming and treating it as his own, is not only prima, facie evidence of unqualified title, but better evidence than a bill of sale, unless the latter is supported by some evidence of prior title in the vendor. The vendor’s title to personal property may be made out by possession, and so may the vendees. At last, the title to a ship must have root somewhere in parol; otherwise it would be requisite to go back and show who employed the shipwright, and produce some written contract under which he wrought.</p>

<p>1. An affidavit neither attested by an officer authorized to administer oaths, .nor purporting to be sworn to in open ccurt, is void, as the basis of a criminal proceeding.</p> <p>2. Criminal proceedings in a court of limited and special jurisdiction must show on their face the facts requisite to give the court authority, under the law, to tiy the case, pronounce sentence, and inflict punishment.</p> <p>3. Where such a court is empowered by statute to try a misdemeanor upon written accusation founded on affidavit, provided the accused shall first indorse upon the accusation a waiver of indictment by the grand jury, a valid affidavit is essential; and if the affidavit be void, objection to it may be taken after conviction and sentence. In such case the whole trial is a nullity, and the conviction should be set aside by the -superior court on certiorari.</p> <p>4. Indorsement that the defendant waives indictment by the grand jury, and demands the jury allowed by law, is equivalent to the prescribed indorsement of “ Indictment by the grand jury waived.”</p> <p>5. In acting on a petition for certiorari, it is error for the judge to withhold his sanction because of any fact which does not appear in the petition, or to hear from the magistrate, whose proceedings are complained of, any statement or explanation touching the case. What the magistrate has to say can be heard only through his return to the certiorari after it has been granted.</p>

<p>1. Where a deed was made and bond for titles taken by the vendor from the vendee, with the intention that the entire transaction should operate as an equitable mortgage to secure a loan of money made by the obligor to the obligee in the bond, the latter cannot resist a recovery in an action of ejectment in favor of the former by setting up the facts aforesaid in an equitable plea, without offering to pay the amount borrowed with the interest thereon.</p> <p>2. The nth section of the act of 1868, embodied in the 2025th section of the Code, authorizing a sale of the homestead as therein provided, is in conflict with the first section of the seventh article of the constitution, and therefore void.</p> <p>Bleckley, Judge, concurring.</p> <p>1. In so far as it may be the purpose of the eleventh section of the act of 1868, to allow a sale or encumbrance of the homestead for objects other than those specified in the constitution, the section is unconstitutional and void, inasmuch as no provision is made for investing the proceeds in like properly, and securing the same to the sole use and benefit of the family. A sale which converts realty into personalty, and leaves it personalty, is manifestly repugnant to the constitution.</p> <p>2. A conveyance of the homstead by husband and wife, with the approval of the ordinary, to raise money for the husband to commence or resume business, the object being known to the purchaser, passes no title on which recovery can be had in ejectment, so long as the family exists. . If the purchaser acquires any title whatever, by means of such conveyance, it is one to take effect in possession only after a dissolution of the family, and the consequent cessation of the homestead right. 47 Georgia Reports, 620.</p> <p>Jackson, Judge, concurring.</p> <p>1. The wife not having joined in a written application to sell or encumber the homestead, and not having been examined at all by the ordinary to see that her consent was freely and voluntarily given to the deed, the statute, Code, section 2025, has not been fully complied with and the deed passed no title to the grantee : 45 Georgia Reports, 621.</p> <p>2. Even if the statute had been fully complied with, it is unconstitutional so far as it may be construed to authorize the alienation of the homestead, or its encumbrance, to enable the husband to go into any business engagement or speculation; and the deed in the case at bar, showing on its face that it was executed for such purpose, is against the true intent and spirit of the constitution and absolutely void.</p>

<p>Criminal law. Grand jurors. Indictment. Accomplice. Larceny. Before Judge Kiddoo. Miller Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Illegality. Service. Return. Sheriff. Before Judge Jambs Johnson. Talbot Superior Court. March Term, 1875.</p> <p>This decision also disposed of the case of John M. Grant vs. Gregory Bass, decided by Judge James Johnson at the April term, 1875, of Harris superior court, argued for plaintiff in error by L. L. Stanford, and for defendant, by James M. Mobley.</p> <p>The facts will be found in the opinion.</p>

<p>1. The withdrawal of a first claim terminates that suit.</p> <p>2. If the same claimant, in resistance to the same levy, interpose a second claim, after he has parted with title to a purchaser, such purchaser will not be bound by a judgment rendered on the second claim, subjecting the property, even though he purchased pending the former claim. A privy in estate is unaffected by a judgment adverse to his predecessor’s title, if' the suit in which the judgment was rendered was commenced after the predecessor had transmitted all his title.</p> <p>3. The commencement of a claim case is not the levy, but the interposition of the claim.</p> <p>4. Although land sold by the defendant in fi. fa. to a bona fide purchaser for value, be levied upon before the purchaser has held it for four years, and while it is subject to the judgment lien, yet, if the plaintiff neglect for the further term of four years to enforce the levy, when no obstruction is in the way of its enforcement, and during such four years the land be in possession of another bona fide purchaser for value, who holds under the first, it will be discharged from the lien. This case is within the letter of the Code, and is also within the equity and spirit of the statute as it stood prior to the adoption of the Code.</p>

<p>Evidence. Account. Assignment. Bankrupt. New trial. Before Judge Herschel V. Johnson. Washington Superior Court. March Term, 1874.</p> <p>Reported in the opinion.</p>

<p>1. When a creditor is pursuing property by levy, on the ground that it is the proceeds of his debtor’s services rendered in a mercantile business conducted by the debtor, nominally as agent for his wife, the value of his services is a pertinent fact, and evidence touching the same is admissible for the creditor in a claim case between himself as plaintiff in fi. fa. and the debtor’s wife as claimant.</p> <p>2. In such a case, where the debtor’s wife contends that the capital and business were exclusively her own, and that her husband was in her service, as agent, without other compensation than support and necessary expenses, the yearly cost of such support is a fact admissible in evidence in her behalf.</p> <p>3. If the wife’s separate estate be the only capital ever put into a mercantile business conducted by the husband in his name as her agent, and the business was commenced in good faith as hers, and has ever since been conducted, in like good faith, as hers, she is sole proprietor of the business itself, and of all goods forming part of the regular stock in trade; and the goods are not subject to levy and sale for his debts contracted prior to the commencement of the business.</p> <p>4. Husband and wife are not permitted by the law to cover with her name his business or property, in order to protect the same against his creditors. In a contest between the wife and the creditors, any fraud or false coloring which may have been practiced or attempted, may be inquired into, and if the husband be the real owner, the creditors will prevail.</p> <p>5. The husband may be his wife’s agent or employee in the management of her separate estate; and if she becomes indebted to him for services, by contract, express or implied, she is subject to garnishment at the instance of his creditors.</p>

Justice Courts. Judgments. New trial. Garnishment. Appeal. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874. On October 30th, 1873, Bergen brought suit by attach^ ment against one Enoch Dudley in the justice court of the - six hundred and sixty-eighth district, returnable on the 19th of the following month. On November 3d, .process of garnishment was served upon Fontaine requiring him to answer on the 13th of the same month.

Debtor and creditor. Deeds. Ejectment. Usury. Pleadings. Before Judge Bartlett. Wilkinson Superior Court. April Term, 1875. Hartridge brought complaint against Carswell for certain lands.

<p>Attorneys. New trial. Presumption. Evidence. Charge of Court. Deeds. Production of papers. Before Judge Kikdoo. Quitman Superior Court. November Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Powers. Wills. Administrators and executors. Legacy. Sale. Before Judge Hopkins. DeKalb Superior Court. March Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Partnership. Set-off. Debtor and creditor. Contracts. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.</p> <p>Reported in the opinion.</p>

<p>!. Although the defendants have not demurred, but have filed their answer, the bill is subject to be dismissed, on motion, at the trial term, if the matters alleged therein entitle the complainants to no decree whatever.</p> <p>2. On a motion to dismiss the bill, the answer is not considered.</p> <p>3. The heirs-at-law, before the appointment of a permanent administrator, have no right of action upon the bond of a temporary administrator which is conditioned to preserve the assets and deliver them to a permanent administrator ; and a bill m equity, founded on such a bond, in which some of the heirs are complainants, and the temporary administrator and his sureties are defendants, is not maintainable, though it allege that all the debts are paid, that no permanent administration has been granted, that the temporary administrator has made incorrect returns, and that he has converted all the assets to his own use, and still holds them for himself.</p>

<p>Habeas corpus. Practice in the Supreme Court. Criminal law. Sentence. Presumption. Before Judge Gibson. Richmond county. At Chambers. March 25th, 1875.</p> <p>Reported in the opinion.</p>

Vendor and purchaser. Notice. Principal and agent. Tenants in common. Evidence. Contracts. Sunday. Jury. Practice in the Superior Court. New trial. Before Judge Underwood. Floyd Superior Court. January Term, 1875.

Administrators and executors. Distribution. Witness. Charge of Court. Before Jambs M. Mobley, Esq., Judge pro hao vice. Troup Superior Court. November Term, 1874. This suit was originally brought against John S. Hill and Benjamin T. Cameron, as executors of Thomas Cameron, deceased. The former dying pending suit, the action proceeded against the survivor. The facts are sufficiently reported in the opinion.-

<p>1. The statute (Code section 3266) requiring bond from the plaintiff in attachment, with good security, in an amount at least double the debt sworn to, contemplates, not only that the bond shall be for that amount, but that the security shall be good for the like amount. It is not the purpose of the statute to exact bond in double the debt and security for less; nor is it the province of the officer who takes the bond and judges of the security, to conjecture what may be the probable, or the possible, limit of the defendant’s damages. He is authorized to accept no bond for a less amount than double the debt, nor any security except security good for at least that amount,</p> <p>2. In a proceeding under the act of 1873; (Code, section 3271) to verify the sufficiency of the bond, and to have it made good, if not so already, the officer is to be governed by a like standard of security, and to pronounce none sufficient which is not good for an amount double the debt.</p> <p>3. In that proceeding no question of amendment can be entertained, except amendment of the bond, and of that only in so far as may be necessary to make it conform to law as a bond in support of the attachment as originally issued and levied.</p> <p>4. If, in such proceeding, an order to make the bond good, be” not complied with within the time prescribed,' the proper final order is one declaring the plaintift’s default, and directing the levying officer to dismiss the levy. To order that the attachment and the levy be dismissed, is error.</p>

<p>1. A motion for new trial, even when a rule nisi is granted thereon, is but pleading; and the rule, until made absolute, is not a judgment of the court adjudicating the matters of fact stated in the motion.</p> <p>2. The granting of a rule nisi for a new trial, and entry of the same upon the minutes, even with an order that the rule operate as a supersedeas, will not authenticate the matters of fact alleged in the motion. The facts, to be accepted as true in the supreme court, over objection made at the proper time, must, if the new trial has been refused in the court below, be certified - as true in the bill of exceptions, or their truth must clearly appear in the record by some other direct statement of the judge.</p> <p>3. For the bill of exceptions to show truly that a rule nisi for a new trial was granted upon a motion which alleged certain grounds for the application, that the new trial was refused, and that such refusal was, upon the same grounds, excepted to and assigned as error, is no sufficient verification of . the several matters of fact alleged in the motion as grounds for a new trial.</p> <p>-4. The verdict, in the present case, is supported by the evidence, and is not contrary to law.</p>

<p>Practice in the Superior Court. Trial, Attorney. Argument of counsel. Practice in the Supreme Court. Before Judge Knight. Lumpkin Superior Court. April Term, 1875.</p> <p>This case is fully reported in the opinion.</p>

<p>(Jackson, Judge, having been of counsel, did not preside in these cases.)</p> <p>I. Employment of attorneys by the principal alone, to defend scire facias against principal and bail, will not subject the bail to any liability for the attorney’s fees; and a verdict for such fees against both, jointly, is contrary to law and without evidence.</p> <p>2. In an action by attorneys against their client, for fees in criminal cases which were never tried, while it is competent for the plaintiffs, by parol evidence, to disclose fully the nature and magnitude of the offenses charged, the difficulties of defense, and the dangers of conviction, it is not competent for their witnesses to testify that certain facts appeared from the cases; such as that the defendant participated in elections, and subsequently, when pressed to enter the military service, claimed exemption on the ground that he was a British subject, and made affidavit that he had never exercised any of the rights of citizenship; nor can the witnesses testify ' that though the evidence was clear that the defendant had voted, the solicitor had his affidavit denying it; or that the indictments, if true, showed that the defendant had sworn to citizenship and voted, and then, after arrest as a conscript, had sworn he was not a citizen, but a British subject. What appeared from cases never tried, would depend on conclusions drawn by the witnesses; and what was contained in affidavits, or shown by in- % dictments, would be better established by the documents themselves, or by copies from the record,</p> <p>3. While the pecuniary condition of the client at the time of engaging counsel, or at the time their services were rendered, may be pertinent in graduating fees, what it has come to be several years later is irrelevant.</p> <p>4. Verdict not satisfactory in amount, on the peculiar facts.</p>

<p>(Jackson, Judge, Raving been of counsel, did not preside:)</p> <p>1. A verdict, in a civil case, founded on contract, where no issuable defense is filed on oath, is illegal. The court must take the responsibility of rendering judgment without a jury. Under the constitution, an issuable defense, on oath, is required to put the case before the jury, or to give them any power whatever, to deal with it.</p> <p>2. A letter introduced as evidence need not all be read by the party who introduces it. It is all in evidence, and either party may read from it such parts as serve his purpose.</p> <p>3. If, construing the declaration altogether, including a copy of the written contract declared upon, whether such contract be embodied in the declaration or annexed to it, the amount claimed by the plaintiff, and the time when it was payable, can be arrived at with reasonable certainty, the want of direct averments on these points will not be cause for arresting the judgment.</p> <p>4. To subject an insurance company, under the statute, to damages and attorney’s fees, a demand for the amount due on the policy, and a refusal to pay, sixty days before suit is brought, must be plainly averred. In the absence of a distinct averment to that effect, the judgment, as to these items, will be arrested.</p>

<p>Railroads. Torts. Receivers. Before Judge Underwood. Floyd Superior Court. January Term,-1875.</p> <p>Reported in the opinion.</p>

Partnership. Evidence. Mortgage. Mistake. Rescission. Sale. Fraud. Before Judge Gibson. Richmond Superior Court. Held: ex cequo et bono, to repay the money, with interest thereon from the day of sale to the third partner. “ A misrepresentation made by a third person in the presence of the vendee, by which the vendor is benefitted, is ground for a rescission of the contract entered into by vendee with vendor on the faith of such misrepresentation.' “…

<p>1. While it is true, in general, that a man is presumed to intend the natural and probable consequences of his own acts, it is not true that he is presumed to intend all their necessary consequences. Consequences may be necessary, and yet quite remote and unexpected.</p> <p>2. That a given act was followed necessarily by delay to creditors, in the particular case, however strong as a circumstance tobe weighed by the jury, is not ground for presuming, as matter of law, that it was intended to have that effect.</p> <p>3. It is impossible that a sale can defraud creditors, unless it was made with a fraudulent intent; and the nature of the intent will not be presumed as matter of law, but must be inferred by the jury from the facts in evidence.</p> <p>4. Where a sale, as to its general features, has all the elements of a complete and absolute transmutation of property, a charge of the court, which instructs the jury correctly on the effect of the transaction considered in that aspect, is not erroneous because it does not go further and lay down the law of conditional or incomplete sales, although there may be some slight evidence upon which to base such further charge, and although that evidence may have been discussed by counsel before the jury. The additional charge desired should have been requested.</p> <p>5. The purchaser at a sale intended to defraud creditors, if free himself from all responsibility for the fraud, is not affected, upon afterwards discovering the seller’s fraudulent intent, even though he has not then paid the purchase money, and the notes given for it have not passed beyond the control of himself and the seller, it not appearing that he alone could control the notes without the co-operation of the seller, or that the latter could have been induced by him to cancel or surrender the notes, which were negotiable paper.</p> <p>6. An innocent purchaser does not become affected by the fraud of the seller, though the property be attached in the purchaser's hands before it is paid for, and before negotiable notes given for the price have passed to innocent holders.</p> <p>7. Where a sale is attacked by creditors as fraudulent, it is error for the court to charge the jury, that if the fraudulent intent of the seller was not known to the purchaser the transaction would be good against creditors. To be protected, the purchaser must be without notice or grounds for reasonable suspicion — not simply without knowledge.</p> <p>8. A charge on the effect of failure to produce evidence within the power of a party, is sufficiently definite and intelligible when it announces the presumption of law to be, that the evidence, if produced, would be prejudicial to the party. If competent for the court to declare in what respect and to what extent such failure would prejudice, attention should be called to these points by a request to extend and amplify the charge.</p> <p>9. It is not the province of the court, but of the jury, to determine whether the case on trial is one in which this presumption arises; the existence of the absent evidence and the ability of the party to produce it being essentially questions of fact.</p> <p>10. Long credit, failure to lake security, great value, and present inability of the purchaser to pay, are not so necessarily badges of fraud in a sale as that the court should so designate them, in charging the jury, without any direct request to do so. The peculiar nature and situation of the property, the want of demand for it in the general market, and the pursuits, prospects, and past relations of the parties, might render these things consistent with the theory of a fair and honest sale.</p> <p>11. That counsel insisted on the distinction between legal and moral fraud, and read authorities in relation to the same, did not make it incumbent on the court to charge the jury upon that distinction, in the absence of any direct request to do so, and in the absence of any specific proposition embodying the doctrine contended for, and applying it to the present case.</p> <p>12. In a contest between creditors and one claiming property as purchaser, it is not error for the court to omit to explain to the jury the effect which a colorable sale, or one not designed to pass title, would have. In the absence of a request to charge on that subject, the court is justifiable in assuming that the jury would know, without instructions, that such a sale would pass no title as against creditors.</p> <p>13. There is no error apparent in the record, in the refusal of the court to dismiss the motion for new trial.</p>

<p>Practice in the Superior Court. Discovery. Argument of counsel. Marriage settlement. Registry. Notice. Trusts. Estates. Infant. Tenants in common. Improvements. Husband and wife. Divorce. Before Judge Hill. Bibb Superior Court. April Term, 1874.</p> <p>On July 21st, 1842, William H. Disharoon executed a post-nuptial settlement by which he conveyed to James S. Miller one hundred and fifty-two acreá of land in Twiggs county, certain negro slaves and certain promissory notes, “together with the right, profits and rents, issues and increase, that may arise or accrue out of the aforesaid land and negroes,” in trust for the use and support of his wife, Sarah Disharoon, during her natural life, and to the maintenance and support of such children as she may bear to him, the said William H. The deed further provided that said property should remain her separate estate during her natural life, then to such children as she might bear to the said William H., and not be subject to the payment of any subsequent debt which might be contracted by the said William H., nor subject to be sold or conveyed by him; but that the right and title to the same should be in said trustee subject to be used by the said William H. and the said Sarah during the continuance of the coverture, for their benefit and advantage, and for the purposes before mentioned. This deed was recorded on August 1st, 1842.</p> <p>William H. Disharoon died leaviug a widow and one daughter, Amanda, the defendant to this case. One Peyton Reynolds succeeded Miller as trustee under the aforesaid deed. At the April term, 1848, of Twiggs superior court, on the petition of Sarah Disharoon, by her trustee, an order was passed authorizing such trustee to sell at public or private sale, the land described in the aforesaid deed, “the proceeds-to be invested in real estate as may seem most advantageous by said trustee.” This land brought $400 00. To this sum was added a like amount of $400 00, alleged to have been saved from the income of the aforesaid trust property, after providing for the support of the beneficiaries. With the $800 00 thus raised, on February 8th, 1850, was purchased from Harvey Moseley, as trustee for Lucinda S. Barclay, all that portion of a lot of land known and distinguished as lot number six, in the southwestern range, according to the plan of the city of Macon, in Bibb county, containing two acres more or less. This conveyance did not follow the terms of the Disharoon deed, but was made to Peyton Reynolds, trustee of Sarah Disharoon and the heirs of William H. Disharoon.</p> <p>On June 10th, 1851, the mayor and council of the city of Macon conveyed to Reynolds, trustee, all that piece of land “ known as the advance front to lot number six, in the southwestern range,” etc. The title to this advance front (a strip of land ten feet in width taken from the adjoining street) was vested in strict accord with the Disharoon deed. This deed was made under an act of the general assembly and an ordinance passed in pursuance thereof, authorizing such conveyances of street or common to the owners of land abutting thereon.</p> <p>Sarah Disharoon having married one Henry B. Page, on December 10th, 1851, Reynolds, as her trustee, in consideration of $2,000 00, conveyed the aforesaid lot number six, with the advance front thereto, to one Job Taylor. This deed described the advance front as follows: “ That portion or parcel of land known as the advance front to said lot number six, and deeded to the said Peyton Reynolds, trustee as aforesaid, by J. H. Washington, mayor of said city of Macon, on June 10th, 1851.” To it was answered the following consent:</p> <p>“ GEORGIA — Bibb County.</p> <p>“ I, Sarah. Page, hereby consent and agree to the making, executing and delivering the above and foregoing deed, freely, willingly, and of my own accord hereunto set my hand and seal, this tenth day of December, 1851.</p> <p>(Signed) “ SARAH ^PAGE. [l.s.].</p> <p>“ In presence of</p> <p>, "Benjamin H Rutherford, •</p> <p>“ Keelin Cook, j. i. c.</p> <p>“Recorded November 2d, 1853.”</p> <p>On October 8th, 1856, Charles H. Carden, as executor of Job Taylor, conveyed a portion of lot number six, with the advance front, to John Hollingsworth. Deed recorded May 2d, 1857. There was no reference in this conveyance either to the Dishai’oon trust deed or to the deed from Mosely, trustee, to Reynolds, trustee. In describing the property the advance front was referred to as follows: “ Including the advance front to said lot, deeded by the city of Macon to Peyton Reynolds, as trustee.”</p> <p>On June 23d, 1863, John Hollingsworth conveyed to Martha Satterfield “all that part of lot of land, situate and being in the city of Macon, and known as part of lot number six, in the southwestern range of the city of Macon, including the advance front to said lot, deeded by the city of Macon to Peyton Reynolds, trustee, the said part of said lot being eighty-two feet front on Oglethorpe street, and running back to back line of said lot one hundred and seventy-six feet, more or less.”</p> <p>This last description covers the property in controversy. Prom Satterfield, this portion of lot number six, with advance front, passed by successive conveyances, immaterial here, to complainant, Martha Davis, who purchased January 16th, 1865.</p> <p>On October 26th, 1869, Amanda Bazemore brought actions of complaint against the various purchasers of the sub-divisions of the aforesaid lot number six, and amongst them, the complainant, for the recovery of said property. To the declaration against complainant was attached the following abstract of title:</p> <p>“The above described property was purchased by Peyton Reynolds, acting as trustee, with the proceeds of a trust fund created by William H. Disharoon, for the use of Sarah Disharoon during her life, with remainder to plaintiff after the death of said Sarah. The said property was sold by said acting trustee without authority of law. The life tenant is dead, and plaintiff repudiates said sale.”</p> <p>In response to this action complainant filed her bill to perpetually enjoin the same. The main ground of equitable interference upon which she relied was that the proceeds of lot number six had been invested in a plantation in Plouston county, and other property, of which the defendant had enjoyed the benefit. She set forth her paper title, and submitted that it was good even at law. She also alleged that valuable improvements had been made upon the property in controversy since the sale made by Reynolds, trustee, all of which defendant was claiming in her action at law, together with mesne profits; that equity could more readily dispose of these matters than a court of law.</p> <p>Defendant answered that by inadvertance or want of skill in the scrivener, the deed from Mosely, trustee, was made to Peyton Reynolds, trustee of Sarah Disharoon and the heirs of William H. Disharoon, instead of to the uses and trusts covered by the original trust deed from Disharoon to Miller; that in the conveyance to Taylor, and in the chain of title down to the present holders of said property, the deed from the mayor and council of the city of Macon is referred to, thus bringing full notice of defendant’s rights to the purchasers. She admits that the Houston county plantation and a place uear Macon were purchased by Reynolds, trustee, in part with the proceeds of the aforesaid lot number six, but denies that she ever ratified such sale. She recognizes no liability to account for any portion of the money received by Reynolds, trustee, from such sale, or for improvements placed thereon by the purchasers. Asserts that she never assented to their erection, and that they were not placed there on the faith of any act or word of hers. Alleges that complainant has placed no improvements on her lot since her purchase, and that as she has deeds, with warranty, from all those through whom her title descended, she is fully protected.</p> <p>The 1st, 2d, 3d, and 5th points passed on by the court, will be sufficiently understood by reference to the head-notes bearing such numbers.</p> <p>The 4th point arose as follows: After counsel for defendant had commenced his argument, and while in the midst thereof, after carefully inspecting the deed from Harvey Mosely, as trustee, to Peyton Reynolds, as trustee, of date February 28th, 1850, the court, of its own motion, remarked to defendant’s counsel, in the hearing of the jury, as follows: “What have you to say why this clause, to-wit: ‘To have and to hold the'said lot of land, with all and singular the rights, members and appurtenances thereof whatever to the said Harvey Mosely, trustee as aforesaid, being, belonging, or in any wise appertaining, with the remainder and remainders, reversion and reversions, rents, issues and profits thereof to the only proper use, benefit and behoof of him, the said Peyton Eeynolds, trustee, etc., as aforesaid, his heirs, executors, administrators and assigns in fee simple/ did not convey the legal title to Harvey Mosley in trust for Peyton Eeynolds, and why it was that the words did not vest the whole title absolutely in Peyton Eeynolds, and for what purpose the word ‘administrators’ was inserted after ‘Peyton Eeynolds’ if not for that?”</p> <p>6th. In reference to the deed embracing the post-nuptial settlement made by Disharoon executed in July, 1842, and ¡recorded soon thereafter, it was contended by the complainant that not having been again recorded under the provisions of the act of December, 1847, such record did not operate as notice of its terms, etc., to any one, for any purpose. Also, that if not sustained in this, then such record constituted constructive notice only in relation to the property therein conveyed, and not in relation to purchases made by the trustee with the proceeds thereof. The court sustained both of those positions and so charged.</p> <p>7th. It was contended on the part of the defendant that the deed from Mosely, trustee, to Eeynolds, as trustee for Sarah Disharoon and the heirs of William H. Disharoon, was notice to Taylor, the purchaser from Eeynolds as trustee for Sarah Disharoon, of an estate for life in the aforesaid Sarah, with remainder to her daughter, the only child of the said William H. The court charged that such deed vested the title in said Sarah and her said daughter jointly, as tenants in common, and that Taylor was charged with notice only of that trust.</p> <p>8th. The defendant further insisted that as the deed from the mayor, etc., of Macon, vested the title to the advance front in Eeynolds, as trustee for the said Sarah for life, with remainder to her daughter, the defendant, in the same manner as the property covered by the Disharoon marriage settlement was conveyed; and that as the said Reynolds, as trustee for said Sarah only, conveyed the property embraced in the deed from Mosely, trustee, and in that from said mayor, etc., of Macon, to Job Taylor, without referring to the child or to the conveyance from Mosely, and without defining what estate he held in trust, but simply referring to the deed from said mayor, etc., as having been made to him “as trustee as aforesaid” on the day of its date, that no title to' defendant’s interest in either parcel of land passed. Also, that the reference to the deed from the mayor, etc, charged Taylor and those holding under him with notice of the terms thereof, and of the fact that said Sarah had only an estate for life in the land covered by the conveyance from Mosely, trustee, with remainder to the defendant.</p> <p>Upon these positions the court charged the jury that, under the law, the mayor of the city of Macon could only convey the advance front of streets to the owners of the lots adjoining, and such deeds must follow the title to the adjoining lots; that, therefore, although the deed from said mayor to Peyton Reynolds, as trustee, covering the advance front, conveyed the use and proceeds to Sarah Page for her life, with remainder to defendant, yet, that neither Job Taylor, nor any other purchasers under him, were charged with notice of the trust stated in this deed, but that they had the legal right to presume that the Mosely deed to the adjoining lot stated the trust correctly.</p> <p>9th. The complainant insisted that under the terms of the Disharoon marriage settlement the surplus income of the trust property, realized during the life of the wife, after providing for the support of the beneficiaries, belonged absolutely to her; and that, as one half of the purchase money paid by Reynolds, trustee, to Mosely, trustee, for the aforesaid lot number six, came from surplus income, she, the life tenant, was the equitable owner, in fee, of one-half of said lot; and that, as complainant held under a chain of title coming through her, under no circumstances could defendant recover more than one-half of the property in controvery. The court so charged.</p> <p>A condensed statement of the material portions of the testimony introduced upon the trial, in addition to the deeds already set forth, presented the following case :</p> <p>The defendant, Amanda Bazemore, is the only child of William H. Disharoon; she was born in March, 1843; her father died in 1847 or 1848; her mother afterwards married Henry B. Page; defendant married Marcus D. Bazemore in 1853, when she was but a little over fourteen years of age; she was divorced from her husband in 1863, and re-married him in October, 1865; her mother died in October, 1868. Of the proceeds of lot number six, in the southwestern range of the city of Macon, $1,2.00 00 was invested by Reynolds, trustee, in a plantation in Houston county. About this time the trustee purchased a negro woman and two children, but whether with a part of the proceeds of the aforesaid lot, or not, the evidence leaves in some doubt. A year or two after the purchase of the Houston property, Mrs. Page became dissatisfied, and the trustee, at her solicitation, bought a house and lot near the city of Macon; part of the purchase money therefor was paid from the proceeds of the aforesaid lot number six, part from the funds of Mrs. Page, and part from the sale of two negroes belonging to the trust estate.</p> <p>The evidence is somewhat indefinite as to how the fund paid for the lot near Macon was raised, but the above statement seems most in harmony with all the testimony.</p> <p>On October 27th, 1857, Marcus D. Bazemore executed a post-nuptial settlement, wherein, having recited that whereas one William H. Disharoon, shortly after his marriage, made a settlement of all his property upon his wife for life, and at her death, to the issue of such marriage; and whereas, the said Disharoon having died, his widow married one Henry Page, and he (Bazemore) having married the only surviving child, (the defendant,) and being willing to gratify her mother’s wishes in the premises, he, in consideration of love, etc., for his said wife, and of a certain arrangement with his mother-in-law, by which she was to loan to him a portion of such trust property, being expressed in a writing bearing same date with his deed, sold and conveyed unto Peyton Reynolds, all his title, etc., to the remainder interest of his wife in the plantation in Houston county, certain live stock and plantation tools, certain slaves, together with their increase, and all other property or interest therein that he may be entitled to, or to which he may become entitled by virtue of his marriage to his said wife, or by virtue of her father’s said deed of gift, for the following uses and purposes: For the sole and separate use of his' said wife during her. natural life, and at her death to such child or children as shall be born, to said Amanda and him, free from any debts he might thereafter contract. He reserved the right to use the rents, issues and profits of all of said property (increase of negroes not included,) without accountability during his coverture ■with his said wife; also, the right to consume the hogs and their increase, and such cattle as may vest in him under the aforesaid deed of gift or marriage settlement.</p> <p>, The instrument further provided that if his wife should die before him, leaving a child or children of the marriage, he was to have the right to use and spend the rents, issues and profits of said property during his life, without accountability, except as to the corpus and the natural increase of the negroes. Also, that in case he outlived his wife, then all of said property, with its increase of every description, should vest absolutely in him.</p> <p>Reynolds accepted the trust.</p> <p>Defendant testified, in brief, as follows: Knows that her mother moved to lot number six, in the city of Macon. There was then a good six-room dwelling-house and the necessary out-houses on the corner, and the lot was enclosed. She was then but seven or eight years old, and cannot remember much about the improvements. When this property was sold, did not know whether it was sold or rented. She was at the time absent-at school. Knows that her mother and step-father moved to a place in Houston county, but is entirely unacqnainted with the manner in which it was purchased, ór what money paid for it. About the time she moved to Houston, two negroes were sold for about $1,250 00, but does not know what was done with the money. About the same time her mother bought a negro woman and two children for $1,200 00, but does not know what money was used in the payment for them. When she was not at school, prioir to her marriage, she lived with her mother and step-father. After her marriage she lived with her husband. After her mother’s death she and her husband took possession of the Houston place. Her husband sold this place, over her objections, for $1,350 00. She did not see the money paid, as she went out of the house to avoid it. After her husband received the money, he went off to Macon, and she did not see him for two weeks. He spent it all in the payment of debts contracted before his' marriage. He also sold the place near Macon for $800 00. ’ He spent this money with the exception of $25 00 or $30 00, which he let her have. (Though the evidence is silent on the subject, yet the answer admits that defendant joined in the conveyance of both of the above pieces of property, alleging as an excuse her infancy and the influence of her husband, which she was unable to resist.) Never knew of her right to lot number six until about twelve months before her mother’s death. This information was derived from her mother and step-father. Knew nothing of improvements placed on the lot since' her mother left it until after they were built. Knew nothing of the sale or purchase of the lot, or any part of it, to any one or by any one.</p> <p>As to the improvements on the part of the lot in controversy in this case, the evidence disclosed that there were none at the time of the sale by Reynolds, trustee, to Job Taylor. John Hollingsworth placed improvements thereon to the value of about $1,200 00. The bare land would be worth about $700 00 or $800 00. Complainant, in the fall of 1865, placed a new two-room cottage on the lot, fenced it in, and made other improvements, which she claims cost her $500 00, but which, from other testimony, would be worth $300 00. She claims that all of these improvements are of the aggregate value of $2,500 00, but other witnesses place them at $1,500 00. She asserts that she has annually placed improvements on the property to the amount of $40 00, and paid taxes to the amount of $25 00. The larger house, with out-house, since the war, would rent for from $20 00 to $30 00 per month. The two-room cottage would rent for about $6 00 per mouth. Complainant paid $1,200 00 for the property in Confederate money. The lot, with improvements, would not sell, at time of trial, for more than $1,500 00 in cash. The other portions of lot number six, not involved in this case, had passed into the hands of various purchasers, against whom suits had been brought, but who had not been made parties to this litigation.</p> <p>10th. Returning to the remaining errors of law alleged to have been committed on the trial, which the above synopsis of the testimony will render clear, it was insisted by complainant that if the jury should believe, under the view of the law presented in the 9th division of this report, that the defendant was entitled to one-half the lot in dispute, they should ascertain what was the value of the improvements placed thereon since the purchase by Job Taylor, then ascertain the value of one-half the lot without the improvements, charge defendant’s half with one-half the value of the improvements, less one-half the rents received by' complainant, and that upon the payment of this charge defendant would be entitled to one-half the lot. That complainant was entitled to the improvements placed there by her or by' those from whom she bought. The court so charged.</p> <p>11th, 12th. It was contended by complainant that if the proceeds of lot number six had been invested in the Houston county plantation and in the house and lot near Macon, and this property had been settled by post-nuptial settlement on defendant, and afterwards sold by her husband, that defendant could not recover the lot in controversy until she had accounted for the same. That the fact that defendant was an infant at the time the settlement was made did not affect the principle, for if she was of sufficient age to enter into the contract of marriage, she was old enough to contract as to a marriage 'settlement. In reply to this position, it was insisted: 1st, That the infancy of the defendant, at the time the settlement was made on her, would prevent the operation of the estoppel; 2d, that she could not be charged with the value of the entire estate in the property in which the proceeds of lot number six had been invested, because but a life estate therein had been conveyed to her; 3d, that if subject to account at all for the property embraced in the Bazemore marriage settlement, she is only liable for that proportion of the proceeds of the aforesaid property which the value of the lot in controversy bears to the present value of the whole of lot number six. That if complainant has omitted to show what that entire value is, then she has failed in a material portion of her case, and the jury, not having the requisite data before'them, cannot find any charge as against defendant.</p> <p>The court instructed the jury as contended for by complainant, and refused to charge to the contrary.</p> <p>13th, 14th. In the argument before the supreme court, counsel for complainant contended that on the second marriage of defendant, the title to all the property which came to her as remainderman under the Disharoon settlement, vested absolutely in her husband, notwithstanding the post-nuptial settlement made by him prior to the divorce; and that if this position was correct, then the defendant had no title upon which to maintain the action of ejectment sought to be enjoined. The determination of this question appears in the last two head-notes.</p> <p>The jury found for the complainant and directed that the defendant be perpetually enjoined. The defendant moved for a new trial upon the ground that the court erred in each of his rulings and charges, as above stated, and also because the verdict was contrary to the law and the evidence. The motion was overruled, and defendant excepted.</p>

Criminal law. Verdict. Jury. New trial. Before Judge Tompkins. Chatham Superior Court. November Term, 1874. Nolan was placed on trial for the offense of murder alleged to have been committed upon the person of Martin Grogan. Evidence was submitted to a jury regularly impanneled, argument had, and a charge delivered, by the court.

Life estates. Forfeiture. Before Judge Bartlett. Baldwin Superior Court. February Term, 1875. On June 20th, 1874, John W. A. Sanford brought complaint against Daniel B. Sanford, for house and lot situated in the city of Milledgeville. Amongst other defenses the defendant pleaded the statute of limitations.

<p>Morgage. Lien. Factors. Crops. Before Judge Clark. Lee Superior Court. March Term, 1875.</p> <p>Eeported in the opinion.</p>

<p>1. Exceptions certified and entered of record, pendente lite, will not be adjudicated by the supreme court so long as the cause is pending below.</p> <p>2. As a general rule, a motion by defendants to dismiss the bill can be made only at the hearing, and must be predicated upon matters appearing on the bill itself. A motion prior to the hearing might be entertained for some default of the complainant in prosecuting his case, or for non-compliance with the rules of practice or legal orders of the court.</p> <p>3. Bankruptcy of some or all of the defendants is no cause for dismissing a bill prior to the hearing, unless the complainant admits the bankruptcy and concedes that it bars all the relief prayed for. Suspending proceedings, in terms of the bankrupt act, is a different thing from dismissing the bill.</p> <p>4. When one of the defendants demurs separately for the want of equity, the bill will not be dismissed as to the other defendants, though there may be no equity as to them. Sustaining the demurrer dismisses the bill as to him only.</p> <p>5. Where debtors are beyond the jurisdiction, their creditors numerous, their assets here in the shape of money and credits, many of those indebted to them unknown, and, therefore, not to be reached by garnishment, and where they have an agent here cognizant of all theif resources within the jurisdiction, and where conflicting claims among different creditors touching equitable priority, are to be settled, the remedy for creditors by bill injunction and the appointment of a receiver, is more ample and complete, certainly more safe, than the remedy at law by attachment.</p> <p>6. Although, as a general rule, a mere agent cannot be made a party for the purpose of obtaining a discovery, yet where material facts are peculiarly within his knowledge touching books and papers, and his principals are beyond the jurisdiction so that no discovery by them can be compelled, he may be made a party for such purpose, in analogy to the common case of agents and officers of corporations: 2 Story’s Eq., sections 1500, 1501.</p> <p>7. Where three persons constitute two separate partnerships engaged in business, similar or dissimilar, in different states, each partnership, having a distinct firm name, an adjudication of bankruptcy in either jurisdiction, on petition of creditors of one firm only, will apply to all the debts and assets of both partnerships.</p> <p>8. The bankrupt act of 1867, as contained in the revised statutes of 1874, and amended by a separate act of congress, passed on June 22d, the same . day the revision was adopted, is still of force; and a judgment of adjudication which recites the act of 1867 as authority for the proceeding, had in October, 1874, is not even irregular, much less void.</p> <p>9. Trustees in bankruptcy, duly appointed after lawful adjudication, are entitled to all assets of the bankrupt seized on mesne process issued from a state court, (not based on a specific lien created by contract,) provided the seizure was made within four months prior to the adjudication, and provided an injunction has been granted in bankruptcy restraining the plaintiff in the state court from proceeding further therein. And the state court, on petition from the trustees, supported by proper record evidence, should order its receiver or other officer to surrender such assets for due administration in the court of bankruptcy.</p> <p>10. The clerk has no right to his costs out of the fund in a receiver’s hands, until the fund has been adjudged subject to costs, on the termination of the' case: Code, section 3684.</p>

<p>1. An injunction restraining the sale of the land claimed, but not the levy thereon, is irrelevant, where the sole question is whether the claimant, and those under whom he holds, has had such four years’ possession as would discharge it from the lien of the execution.</p> <p>2. Where claimant holds land under chain of title commencing with the deed made by defendant in fi. fa. prior to his bankruptcy, but which he nevertheless returned in his schedule as his property, and the question at issue was whether the possession of claimant and his vendor (the purchaser from the bankrupt^ was in good faith, that such vendor procured or influenced the defendant to take advantage of the bankrupt act, was irrelevant.</p> <p>3. Upon the trial of this issue, that such vendor asked and influenced the defendant to take advantage of the bankrupt act, to embrace this land in his schedule, and to obtain an injunction against this execution, was relevant.</p>

<p>Criminal law. Indictment. Burglary. Before Judge Knight. Forsyth Superior Court. August Term, 1875.</p> <p>Reported in the opinions.</p>

<p>1. Cellar doors opening out on the sidewalk and frequently and negligently kept or left open, endanger the use of such sidewalk in the night, and to persons of imperfect vision, by day, and the city is liable to suit by persons falling into said cellars and injured thereby, if it has notice of such negligent use of the cellars.</p> <p>2. If such negligent use has continued a long time, notice will be presumed, and the city is chargeable therewith without actual proof of notice.</p> <p>3. Whether the use of the doors in opening and leaving them open, has beeri proper and legitimate for the business of the owner, or capricious and unnecessary, and, if legitimate, whether habitually used ‘so negligently as to endanger the passers by, are questions for the jury; and whether the plaintiff was so negligent himself, in venturing out in his then imperfect sight, as to prevent recovery on proof of negligence by the use of the occupier of the cellar and knowledge by the city, is also a question for the jury, and the court should not decide these, questions itself by granting a non-suit.</p>

<p>Certiorari. Judgments. Before Judge Gibson. Burke County.. At Chambers. June 25th, 1875.</p> <p>Reported in the decision.</p>

Deeds. Sheriff. Execution. Evidence. Judgments. Before Judge Harris. Liberty Superior Court. November Term, 1875. This case was complaint for land. The title of the plaintiff rested on a sheriff’s deed made on a sale of the property in controversy for taxes.

<p>1. Before a judgment of the circuit court will be reversed, the burden is upon the party complaining to show affirmatively that it is erroneous, and if the bill of exceptions and transcript of the record, show no demurrer and the case turned on the demurrer, this court cannot intelligently review it, and will affirm the judgment.</p> <p>2. The above rule of' practice is the more necessary when the bill is demurrable on several grounds, such as the misjoinder of parties, the absence of essential parts of the record, and the failure to append important exhibits.</p> <p>3. Considering the demurrer a general one, for want of equity, which is most favorable for plaintiffs in error, we see nothing in the bill which shows that their remedy is not adequate and complete at law.</p>

<p>Equity. Mortgage. Vendor and purchaser. Contribution. Before Judge Harris. Calhoun Superior Court. September Term, 1875.</p> <p>Reported in the decision.</p>

<p>Bankrupt. Judgments. Homestead. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>When the bill of exceptions does not embody the brief of the evidence, but refers to it as in the record, it must appear, either from the bill of exceptions or the transcript of the record, that the brief of evidence was approved by the court.</p>

<p>Statute of limitations. Judgments. Before Judge Wright. Dougherty Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>The sale of the first five bales of cotton of a crop of the present year by a bill of sale dated the 9th February, 1874, passes no title .to the vendee, the seed not being planted at that season of the year in the county. That which has no actual or potential existence is not the subject of bargain and sale. ’ Until the crop be actually growing, or at least until the seed be planted, the crop has no existence, actual or potential, and no part of it can be sold so-as to pass the title, and authorize a recovery in trover.</p>

<p>Complainant conveyed land to defendant by warranty deed taking note for purchase money. Defendant, for the purpose of defeating the collection of the note, conveyed to a bona fide purchaser without notice, in exchange for other land. He then induced his wife to have latter property covered by a homestead. Complainant filed his bill to make the homestead subject .to his claim. A demurrer thereto should have been sustained upon the sole ground that it appeared that the debt sought to be enforced was contracted prior to the adoption of the constitution of 1868, and therefore the homestead did not prevent the sale of the property under final process.</p>

<p>An agreement was entered into by husband and wife whereby to settle unfortunate difficulties between them. It was agreed that they should mutually occupy and enjoy a certain house and lot, with certain limitations over in case of death. Subsequently the wife sued the husband for divorce, which was granted with liberty to each to marry again. Pending the divorce, counsel agreed that the question of property should be left open without prejudice to either party. The wife, having failed by writ of partition to divide the property, brought her bill in equity and alleged that the husband was in the sole occupancy and use of the house and had enjoyed all the rents thereof since the divorce, was insolvent and unable to respond t.o her in damages, and prayed for an injunction, and the appointment of a receiver to take charge of the property and hold the future rents subject to the order of the court. The court granted the prayer, and directed the receiver to pay half the rents in future to the husband, and retain'the other half to await the final decree:</p> <p>Held, that there is equity in the bill, and that the court did right in appointing a receiver to take charge of the' property; and to. preserve the future rents to await the final decree.</p>

<p>Criminal law. Evidence. Jury. Verdict. Confessions. Witness. Charge of Court. Before Judge Hopkins. Fulton Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>I. When two defendants are indicted for an assault with intent to murder in the same bill, and the first count charges both with the offense and then specifies the particular acts done by one, and the second count specifies the particular acts done by the other, on the same day and against the same person, and one is put on trial and found guilty of assault and battery, and a motion is made to arrest the judgment on the ground that the indictment is double.</p> <p>Held, that the objection is formal merely, and not good in arrest of judgment.</p> <p>2. In such case the indorsement of “ true bill ” on the indictment applies to both defendants.</p> <p>3. Where one of the defendants only is on trial, a general verdict of guilty applies to him, and is sufficiently certain without naming him as the de • fendant who is on trial.</p>

<p>1. This court will not control the court below in the exercise of its discretion in refusing to grant a new trial where no error appears in the charge and the evidence is conflicting, there being enough to sustain the verdict.</p> <p>2. Although the solicitor general state to the jury that he will not insist on a verdict of guilty of assault with intent to murder, but assault and battery only, it is not such error in the court to charge the law of assault with intent to murder as to require a new trial, if the verdict be only for assault and battery.</p>

<p>1. The superior courts of this state have no jurisdiction to establish copies of lost wills.</p> <p>2. When a court transcends the limits prescribed for it by law, and assumes to act where it has no jurisdiction, its adjudications will be utterly void either as an estoppel or otherwise.</p>

<p>1. Where a case is dismissed before trial, the interrogatories talcen therein which have not been read in evidence, are also out of court, unless there is some order or agreement of parties to the contrary. In order to allow the interrogatories to be read in another case upon substantially the same issue and between substantially the same parties, some good reason should be shown, either that the witness is dead, disqualified or inaccessible.</p> <p>2. There was sufficient evidence to sustain the verdict.</p>

<p>Bonds. Advertisement. Claim. Sheriff. Before Judge Hopkins. Fulton Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Distress warrant. Officer. Mortgage. Before Judge Rice. Gwinnett Superior Court. September Term, 1875.</p> <p>Reported in the decision.</p>

<p>Roads and bridges. Municipal corporations. County matters. Dedication. New trial. Charge of Court. Judgments. Before Judge Rice. Clark Superior Court. August Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Dower. Title. Estoppel. Before Judge Knight. Fannin Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Process of garnishment will not be dismissed because plaintiff’s attorney signed the bond as security,' such attorney not being employed in the garnishment case, but having acted as such only in the original common law suit.</p> <p>2. Section 3268 of our Code is directory only, and construing it in connection with section 4, paragraph 6, the fact that an attorney in the garnishment signed the bond as security would not make,the proceeding void, it notbe- . ing so expressly provided by the enactment in section 3268.</p> <p>3. The debtor by promissory note may be garnished, and if served with the summons before he has paid the note, he will pay it at his peril, nor is he protected in paying to a third party who acquires title after the service of the summons, if the note be overdue. Such holder take's the overdue note subject to all the equities between the original parties, and among these equities is the right which a vigilant creditor acquires by his attaching the note by serving the summons of garnishment on the maker : 38 Georgia Reports, 17.</p> <p>4. The issue in such a case is, to whom did the note belong when the summons of garnishment was served? and to illustrate that issue, a letter to his agent to purchase the note by the holder, is admissible to show when he got title, as well as the Iona Jides of his purchase. The garnishee’s whole defense rests upon the holder’s title to whom he paid the note, and therefore his acts and letters are admissible against the garnishee.</p>

<p>1. In a suit against the drawers of a domestic bill of exchange, not made for the purpose of negotiation, nor intended to be negotiated, at any chartered bank, it is unnecessary to show protest for non-payment, and notice thereof.</p> <p>2. Where a draft is drawn upon a firm, and one of the members thereof accepts the same in his individual name, the partnership is bound.</p>

<p>The failure of the mortgagee of an older mortgage to apply to that mortgage, before its foreclosure, a particular payment according to directions given by the mortgagor at the time of the payment, is simply a breach of contract; and the right of action on such breach is in the mortgagor, or if he be dead, in his legal representatives, and not in the holder of a junior mortgage on the same property, though it be averred that if the payment had been applied according to instructions, the junior mortgage would have received something from the mortgaged property and that the mortgagor’s estate is insolvent. There is no privity of contract between the junior and senior mortgagees so as to authorize the former to sue the latter directly. Suit must be brought by the legal representative of the mortgagor on the breach of his contract, and then the recovery will be assets for distribution according to the statute of distributions, and the junior mortgagees may or may not receive something on this mortgage according to the priorities prescribed by that statute.</p>

Homestead. Purchase money. Before Judge Pottle. Wilkes Superior Court. June Adjourned Term, 1875. It is only necessary to state in this case that of the $425 00 in the hands of DuBose, the garnishee in the suit on the note, the court below allowed $200 00 to Sale as a part of his exemption of personalty, holding the balance to be subject to his debts. For the remaining facts, see the decision.

<p>Criminal law. Indictment. Autrefois acquit. Before Judge Knight. Lumpkin Superior Court. September Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Mortgage. Sheriff. Judicial sale. Practice in the Superior Court. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>i. When the auditor’s report finds simply a balance due, as in this case, #114 00, and does not specify the result reached by him on any issue either of law or fact submitted for his investigation and made by the pleadings, the report is too vague and indefinite; no exceptions can be made intelligently thereto; nor can the court well determine whether the auditor erred in law, or the jury review with facility his finding on any issue of fact. In such case, the report should be remanded to the auditor for want of full - ness and certainty.</p> <p>2. It is not error to refuse to continue a cause arising on exceptions to an auditior’s report on the ground of time to procure the attendance of witnesses, when the exceptions are purely matters of law, and all the facts necessary to determine them may be found in the record and the report.</p>

<p>(Bleckley, Judge, having been of counsel in this case, did not preside.)</p> <p>If a complainant in equity has been before a competent tribunal at law, which has given judgment against him, that judgment, unless reversed, is conclusive upon him in the other forum as to matters of defense which he might have presented at the proper time.</p>

<p>(Bleckley, Judge, having been of counsel, did not preside in this case.) .</p> <p>1. A note dated November 9, 1864, to pay, three years after date, one hundred and twenty-five thousand pounds of cotton, to be delivered in any cotton market in Georgia outside of the enemy’s lines, the consideration whereof is a like number of pounds of cotton advanced at the date thereof, is not a Confederate contract within the scaling ordinance of 1865.</p> <p>2. Even if such a note were within the ordinance, equity would not scale it, because its consideration is a certain quantity of cotton, and it is payable in the same quantity of the same article, without interest, three years thereafter, and the measure of damage, if the cotton is not then returned, is the value of the cotton at any market in Georgia when the breach occurs, which is long after the war.</p> <p>3. Nor is such a note illegal because the maker did not have the cotton in hand at the date thereof, hut had to arrange for its payment by purchase or otherwise when it matured.</p> <p>4. A note given for cotton, not at the time of the bargain, but subsequently thereto and antedated by the maker, who is the buyer, and signed by him, takes the parol bargain and. sale out of the statute of frauds.</p> <p>5. The exercise of ownership over the cotton bargained, by using a portion thereof for the purpose for which it was bought, and by selling one half of the quantity purchased to a third person, or either of these acts of ownership, is such constructive acceptance as, independently of any note or memorandum, would take the parol bargain out of the statute of frauds.</p> <p>6. The question of delivery or non-delivery of the thing sold is a question of what was the intention of the parties; and where, out of five or six hundred bales of cotton stored in a warehouse, one hundred and twenty-five thousand pounds are bargained and sold for the purpose of being used in a factory near thereto, and the buyer, after the bargain and sale to him, sold one-half to his partner in the factory, and a portion of that first bought is consumed in the factory by the partnership, and the first buyer has received from his partner full payment for his half in another lot of cotton of the same quantity at another place, such use and acts and circumstances show the intention of the parties to treat the entire one hundred and twenty-five thousand pounds as delivered for consumption in the factory, to be weighed as needed from time to time, and altogether amount to a sufficient delivery thereof, though the whole quantity sold was not weighed and severed from the bulk.</p> <p>7. Newly discovered testimony, consisting of facts within the knowledge of witnesses called by the movant and examined on the trial, will not authorize a new trial.</p> <p>8. Though the court may err in isolated portions of its charge, yet if, when taken as a whole, the charge gives the law of the case in substance to the jury, and the verdict is right upon the law and facts, and a new trial be refused, this court will not interfere.</p>

<p>1. The superior courts of this state, under the constitution of 1868, have no authority to incorporate manufacturing companies.</p> <p>2. Where property has been sold by an insolvent debtor, which it is sought to make liable to his debts, a receiver will not be appointed to take the same out of the hands of the purchasers, where the latter are not charged to be insolvent.</p> <p>3. Where a bill is amended by the addition of a prayer for an injunction to restrain a defendant against whom no such order was originally prayed, he is entitled to notice and to an opportunity to show cause to the contrary.</p> <p>4. Where cross-bills of exception are sued out, they constitute two distinct cases, and the clerk is authorized to tax full costs in each case. (R.J</p>

<p>Debtor and creditor. Appropriation of payments. Before Judge Clark. Macon Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

Garnishment. Judgments. Practice in the Supreme Court. Before Judge Knight. Cobb Superior Court. November Term, 1875. When this case was called a motion was made by counsel for defendant to dismiss the writ of error because no record had been forwarded.

<p>Waiver. "Verdict. Principal and security. Judgments. Before Judge Clark. Macon Superior Court. May Term, 1875.</p> <p>Reported in the decision.</p>

<p>An absolute deed (free from usury or other infirmity) conveying land in fee simple, passes the legal title, though made and delivered as security for a debt, and recovery may be had thereon in ejectment by the grantee against the grantor; more especially, where a cotemporary instrument stipulating for a surrender of the deed if the debt is paid at maturity, contains a covenant for admitting the grantee into possession if the debt is not so paid, and where, in pursuance, of the covenant, the grantor has recognized the grantee as landlord and paid him rent. The grantor may defend successfully by pleading an equitable plea and doing equity, that is, tendering the debt and interest: See Lackey vs. Bostwick, 54 Georgia Reports, 45.</p>

<p>Except in cases of special liens for rent on crops made on the land rented, a landlord may distrain for rent without any previous demand for payment from his tenant.</p>

<p>(Jackson, Judge, having been of counsel, did not preside in this case.)</p> <p>Indulgence by a creditor to a principal debtor, for a valuable consideration, whether with or without the knowledge of the security, discharges the latter. To make this principle applicable, the creditor must have known, at the time of the indulgence, that the defendant setting up such discharge, signed the note as security.</p>

<p>I. On the question whether the prisoner knew a certain grant uttered by him was impressed with a forged and counterfeit great seal, it was error to charge the jury, “ that if the evidence showed he was a land-trader that was a circumstance they had a right to look to, as a land-trader who handled a thousand grants would be more likely to know a counterfeit grant and seal than a man who only occasionally saw one ” — there being no evidence that the prisoner had ever seen any grant except the one uttered, and no evidence that he was a land-trader, except that he sold the tract to which that grant purported to apply, and the further testimony of the purchaser, that he regarded him as a land-trader but did not positively know his business.</p> <p>2. Neither the existence of a genuine grant, nor the public record of it, is evidence that the utterer of a forged grant, bearing a different date, and purporting to convey the same tract of land from the state to a person other than the utterer, knew that the forged grant was a forgery, it not appearing that he had any knowledge, information or belief, touching the genuine grant or its record. Constructive notice by a public record is no substitute for actual notice in establishing the scienter requisite to criminal intention.</p>

<p>1. Notice that the acceptor has failed to pay is not necessary to charge the drawer of a domestic bill of exchange in this state, the draft or bill not being intended to be negotiated at any chartered bank.</p> <p>2. When the holder of a bill of exchange or draft, gave time to the acceptor, and told the drawer that the acceptor had arranged the draft with him, and the drawer is thereby induced, in a settlement with the acceptor, to allow him the amount of the draft, and two or three years have elapsed until the acceptor has become insolvent, and the drawer has lost all hope of recovering the value of the draft back from the acceptor, and suit is then brought by the holder against the drawer :</p> <p>Held, that such conduct of the holder and consequent loss of the drawer, discharges the drawer from the payment of the debt.</p>

<p>Principal and security. Pleadings. Before Judge Clark. Sumter Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>Corporations. Pleadings. Amendment. Arrest of judgment. Before Judge Hopkins. Fulton Superior Court. April Term, Í875.</p> <p>Reported in the opinion.</p>

<p>Pleadings. Joint and several obligations. Before Judge Crawford. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the decision.</p>

<p>I. On the trial of an affidavit of illegality founded on alleged want of service, the return of the sheriff that the defendant was served, is conclusive, unless it be traversed; and the pleadings must be so framed that the traverse and issue thereon shall plainly appear of record; and' to such traverse the sheriff should be a party, as his official return is questioned.</p> <p>2. This traverse must be made at the first term after notice of such entry of service is had by the defendant; and the fact that it is made at such term must be also averred and proven on the trial of the traverse.</p>

<p>1. The power in the charter of Atlanta to tax itinerant traders is not lawfully exercised by the adoption of an ordinance to tax those intinerant traders only who are non-residents of the city. No tax can be imposed on nonresident traders without imposing a like tax on resident traders of the same class.</p> <p>2. Is a tax on the amount of sales made within the city by intinerant traders, a tax on property, and can it exceed the rate per cent, ad valorem, imposed on other property taxed. Quare ?</p> <p>3. A trader who opens a house within the city for the purpose of selling out therein a stock of goods, who deposits in the house a large stock and proceeds to sell them out, in the one place, by auction or otherwise, who does not convey any of the goods, or carry samples thereof, from point to point in the city for the purpose of sale, exhibition or the solicitation of orders; and who waits for customers to come to him at the location where he has established his business, is not an itinerant trader, within the meaning of the charter of Atlanta or of the general statutes of Georgia.</p> <p>4. An illegal tax ordinance which requires returns and payment to be made within an hour after the tax accrues, then, in case of default, doubles the tax and sends forth execution, and, finally, denounces penal infliction for non-payment, is better resisted by injunction than by affidavit of illegality, or other common law remedy; more especially as the party invoking protection is carrying on a large business which exposes him to numerous successive levies, day after day, for alleged non-compliance with the ordinance, and as the municipal authorities, having made one levy, threaten a repetition daily so long as the business is prosecuted.</p>

<p>Statute of limitations. Accounts. Before Judge James Johnson. Talbot Superior Court. September Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Land lawfully conveyed by absolute deed, with consent of the debtor’s wife, to secure a debt, becomes the creditor’s property, and neither the debtor himself, nor his family after his death, can take a homestead in the same, as against the creditor, until the debt is paid : Code, section 1969.</p> <p>2. But usury in the contract under which the deed was executed, renders it void as title, and the homestead right remains as if the deed had not been made.</p> <p>3. A legislative charter which grants to an incorporated company the power to contract, without limit, for commissions, in addition to the lawful interests, does not enable the corporation to take usury under the name of commissions : See 4.7 Georgia Reports, 82 ; 48 Ibid., 1.</p> <p>4. A title void for usury does not acquire validity by purging the debt on reducing it to judgment after the grantor’s death.</p> <p>5. A general decree for the recovery of money without subjecting any specific property to its payment, though rendered by consent in settlement of litigation, is not necessarily superior to the homestead right in property which was not directly involved in the litigation.</p> <p>6 Pending an application for homestead, which is resisted by a judgment creditor who holds an absolute deed to the premises that, if valid, will defeat the application, which deed is attacked for usury by the applicant, a sale of the land by the sheriff to satisfy the judgment, should be enjoined until the right to homestead is determined.</p>

<p>Criminal law. Evidence. lies gestee. Charge of Court. New trial. Jury. Before Judge Hopkins. Eulton Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>