Volume 56 — Georgia Reports

<p>Estates. Deeds. Before Judge James Johnson. Muscogee Superior Court. May Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. If, in the affidavit to obtain a distress warrant, a definite sum is claimed to be due for rent, the time when it became due need not appear, nor need the terms of the rent contract be set out, such as that the rent agreed upon was a part of the crop, etc. If these facts become material in any stage of the litigation, they may be proved, and it will be no variance.</p> <p>2. In this state, the burthen of keeping the premises in repair is generally on the landlord, but patent defects existing at the time of the renting, and equally well known to both parlies, are not to be amended by him, or at his expense, without a special undertaking. On the other hand, the tenant is not obliged to amend them without a like undertaking on his part.</p> <p>3. Where the rent reserved is one-third of the corn and one-fourth of the cotton raised on the premises in the given year, and at the time of the renting both parties know the fence to be in a very bad condition, too low or too weak to keep ordinary stock from trespassing en the crop, and nothing is said about building it higher or repairing it, there is no legal obligation upon either party to make the fence better. The crop is at the mutual risk of the landlord .and tenant, each to the extent of his interest, and whatever part of it may be destroyed by stock in consequence of the fence not being good, is a common loss. The landlord is entitled'to his proportion of what is saved but to nothing for what is lost, and so of the tenant.</p> <p>Jackson, Judge, dissenting:</p> <p>1. If the verdict of the jury be right under the evidence, this court should not set it aside, though there may be errors in the charge of the court.</p> <p>2. This oft-repeated rule of this court should be more rigidly adhered to where the case against the plaintiff in error is made out by the testimony of an impartial witness, and his case supported only by his own evidence.</p> <p>3. The fact that plaintiff in error made no motion for a new trial in the court below, but brought the case here directly on alleged errors in the charge, ought further to strengthen the application of this wise rule.</p> <p>4. Whilst, by a strict construction of section 2284 of the Code, it is the duty of the landlord to keep in repair even the fencing around the farm rented, .yet he is not bound to watch the fence and see that it is kept up. That duty devolves on the tenant, who may repair himself and charge the landlord with it, to be accounted for in the rent, or notify the landlord that the fencing needs the repair.</p> <p>5. If both parties know that the fencing is defective at the time the farm is rented, the contract is made with reference to its condition at that time; unless there be an express contract therefor, the landlord is bound to put it in no better condition; the tenant will be held to rent with his eyes open, and will be bound for the whole rent agreed to be paid, no matter how defective the fence was and what depredations hogs or cattle or storm or sickness made upon it.</p> <p>6. If the tenant see his crop destroyed by cattle without either fixing the fence himself or notifying the landlord to do it, he neglects a plain duty, which both common sense and the law of self-preservation, as well as the sensible construction of the law of the land, impose upon him, and he and not the landlord should suffer for such gross neglect.</p> <p>7. When the only proof for the tenant, he himself being the only witness, is injury to his crop in its gathering, arising from sickness of those who gather it, storms in wasting it, and cattle and hogs who prey upon it, and he furnishes no data on which it is possible for a jury to predicate a conclusion in respect to how much injury the crop sustained by the breaking in through a defective fence, of the cattle aiid hogs and the proof of the landlord is that of a disinterested witness, fully sustaining the verdict of the jury, the verdict should stand for these, if all the other reasons given be untenable.</p>

<p>When vendor sold lands to vendee and gave bond for titles and possession, • and part of the purchase money having been paid, made a deed thereto after obtaining judgment for the balance of purchase money under section 3586 of the Code, and the wife of the vendee filed an equitable plea that ■ her husband, in the payment made, had used her money with the knowledge of the vendor, and had made her a deed to the land, and she prayed that the verdict and the judgment should be so moulded as to protect her rights and give her the land, or if sold, enough of. the proceeds to reimburse her, but did not allege in the plea, or prove on the trial, that the vendor was insolvent, or that for any other reason she could not sue and recover from him:</p> <p>Held, that while she may recover from the vendor the money so applied with his knowledge, she has no equitable claim to the land, or lien thereon, or on its proceeds, or any part thereof, until all the purchase money has been paid, the vendor being solvent and able to respond to her for her money so received by him, should she see fit to sue therefor.</p>

<p>Witness. Practice in the Superior Court. Factor’s lien. Attachment. Before Judge Crawford. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the decision.</p>

<p>The only evidence of the prisoner’s connection with the burglary being that he was seen to pass by the house some hours before the offense was committed, and that several months thereafter, goods stolen from the house on the occasion of the burglary, were found in his possession, the case made is sufficiently answered by evidence of previous good character and the testimony of an unimpeached witness that the goods were delivered to the pris- ■ oner by another person in pledge for a sum of money, the prisoner himself having given substantially the same account of his possession and no con tradictory account.</p>

<p>Pleadings. Vendor and purchaser. Contracts. Before Judge Clark. Schley Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>The title upon which claimants relied being made as part of a usurious contract, was void, and the property claimed was therefore properly found subject.</p>

<p>Ejectment. Garnishment. Before Judge Buchanan. Upson Superior Court. May Term, 1875.</p> <p>Report unnecessary.</p>

<p>Criminal law. Rape. Infant. Venue. Before Judge Clark. Sumter Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Debtor and creditor. Before Judge Kiddoo. Randolph Superior Court. May Term, 1875.</p> <p>Reported in the decision.</p>

<p>Guardian and ward. Contracts. Before Judge Underwood. Muscogee Superior Court. May Term, 1875.</p> <p>Upon tiie trial, the court charged the jury, amongst other things, as follows:</p> <p>“That neither the case made by the complainant, nor that made by the defendants, raised the question whether the private agreement for a sale, made by King, was binding and valid against the guardian, McKendree.”</p> <p>“That a payment in advance to King, as guardian, upon a sale of property of the ward, to be afterwards made by King, as guardian, is not a payment to McKendree, as guardian, upon a sale made by McKendree, as guardian, afterwards, and after the death of King. That the purchasers at the sale made by McKendree, as guardian, if put in possession of the property under and from McKendree, as guardian, will be bound to respond for the unpaid purchase money except in so far as the guardian has properly paid money to and for the use of the ward.”</p> <p>To this charge the, defendants excepted. The jury found for the complainant. Defendants assign error upon the above ground of exception.</p> <p>For the remaining facts see the opinion.</p>

<p>Criminal law. Confessions. Before Judge Kiddoo. Terrell Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Trover. Pleadings. Before Judge Kiddoo. Miller Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>Witness. Charge of court. Trusts. Husband and wife. Before Judge Pate. Laurens Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>1. The return of service by the United States marshal should be treated as conclusive of such service by the state courts. Our own sheriff’s returns are so treated in courts other than where they are rendered, and in the courts where rendered, they can be traversed only by making the sheriff a party.</p> <p>2. Whilst the residence of the family is the legal venue of the husband and father, it is the residence he, as the head of the family, selects; nor can his wife, in his absence and without his assent, change that residence so as to change his venue.</p> <p>3. Service at the house where he left his family, especialty when that family are still in the same city, and where, though the wife has sold the house and furniture, she has not delivered all the latter and parted with possession of the house, is good service, and particularly if a member of the family was still at the house and received and handed it to the defendant’s attorney.</p> <p>4. Appearance of the defendant and plea to the merits will cure all irregularities, if there be any, in the service, and whilst a defendant cannot give jurisdiction to a court which has none so as to bind third persons, such as other creditors of his, yet when the legal residence of the defendant, at the time of service, is in the jurisdiction, and he has been served, though it may be irregularly, his appearance and plea in such a case will operate to cure the irregularity in respect to everybody.</p> <p>5. A charge of the court that a judgment attacked for fraud and collusion may be good in part, though fraudulently procured as a whole, does not hurt the party against whom it is made, if the jury, on a fair presentation of the issue of fraud or no fraud, find none at all, and sustain the whole judgment.</p> <p>6. Questions of amendments and irregularities in connection therewith, in the district court of the United States, are matters of practice in that court, and will not be inquired into by the state courts. The final judgment of the court of the United States concludes them all so far as the state courts are called upon to consider and pass upon such federal judgment.</p>

<p>A waiver by a mortgagor, for himself and family, of all right lo a homestead in the property mortgaged, is binding, though such-right be conferred by the constitution.</p>

<p>Debtor and creditor. Payment. Before Judge Wright. Mitchell Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Witness. Contracts. Before Judge McCutchen. Bar-tow Superior Court. July Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Criminal law. Escape. Arrest. Charge of Court. Warrant. Evidence. Before Judge Tompkins. Chatham Superior Court. May Term, 1875.</p> <p>Hambersham was indicted for the offense of assisting a prisoner (name unknown to the jurors,) to escape from the custody of Lawrence Banks and Chatham Rodgers. The defendant pleaded not guilty. The evidence made, iirsubstance, the following case :</p> <p>On the night of June 13th, 1875, at about one o’clock, two clerks, Banks and Rodgers by name, arrested a boy in the house which connected with the store in which they were employed. They state that this boy, with some other person who ran off, broke into the house with the view of passing thence into the store; that they only struck him for the purpose of overcoming his resistance when it was sought to arrest him; that the boy had a sack over his head with holes for his eyes cut in it.</p> <p>After his arrest he was tied, and according to the evidence of the defendant, whipped twice. Rodgers set up with him all night. In the morning Banks went to tell the proprietor of the store what had occurred. During his absence, according to the testimony of the state, at about eight o’clock, defendant untied the boy and took him away from Rodgers. Defendant said he would take upon himself the responsibility of releasing him. Rodgers said the boy had broken into the house. Defendant replied that he was. a constable and knew the rules of law. Rodgers did not resist defendant as he was áfraid of him. There had been a storm on the previous evening at about nine o’clock.</p> <p>The boy, whose name was subsequently discovered to be Solomon 'Weaver, testified that he went through ojien doors into the house for the purpose of avoiding a storm; that he went into a closet and went to sleep; that he entered before the shop was closed ; that when discovered he was shot at, arrested and whipped; that when defendant came in the morning, he gave him this account of the transaction ; that Rodgers then told the defendant to turn him loose, which defendant did ; that he immediately gave himself up knowing he had done nothing wrong.</p> <p>Defendant stated that on the night of June 13th, he was up very late, and in passing the house which had been broken into he heard some one crying; that he peeped into the house and saw a boy tied; that he got up at twenty-five minutes after nine o’clock, A. M., and saw a crowd in front of the store; that he went down there and saw this boy who gave him his account of the trouble he was in, saying that Rodgers had whipped him for coming in and sheltering himself from the storm ; that he turned him loose, telling Rodgers that he had no right to whip him; that he turned the boy loose by consent of Rodgers, who said he did not wish to have the boy dealt with by law, but would give him a few stripes.</p> <p>The jury found the defendant guilty. A motion was made for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the court erred in charging the jury that they could find the defendant guilty notwithstanding the person claimed to have escaped had never been prosecuted.</p> <p>2d. Because the court erred in charging that the jury were, in no sense, judges of the law, but must receive the law as given from the court, as law.</p> <p>3d. Because the court erred in charging that they were not judges of the fact as to whether the custody of the escaped person was legal or not under the circumstances.</p> <p>4th. Because the court erred in charging that the custody was legal if the evidence adduced for the state was true.</p> <p>5th. Because the court erred in charging that it was the exclusive judge of the question as to whether the custody was legal or not in this case, under the circumstances and facts disclosed.</p> <p>6th. Because the court refused to charge that if the jury believed from the evidence that the holding of the boy was for an unreasonable time after his arrest, then the custody was not legal, and they must acquit.</p> <p>7th. Because the court erred in charging that the jury could not consider the fact that the boy was being cruelly treated at the time he was released.</p> <p>8th. Because the court erred in refusing to charge that if the jury believed that Rodgers, who liad the boy in custody, told the defendant'to turn him loose, then they could not find the defendant guilty.</p> <p>9th. Because the court erred in refusing to charge that the jury could not find the defendant guilty unless they believed from the evidence that he knew the boy was held for a crimnal offense.</p> <p>10th. Because the court erred in charging the jury, that in making up their verdict they could not consider the question whether the boy had or had not been guilty of a criminal offense; but that if the boy was in custody of Rodgers, as the evidence for the state disclosed, although he may have been perfectly innocent of any burglary, still, if the jury believed the evidence for the state, they must find the defendant guilty.</p> <p>The motion was overruled and the defendant excepted.</p>

<p>1. As the action was not brought by the plaintiffs, as mechanics, but as partners and contractors, they were not entitled to recover a lien as mechanics. An amendment will cure this omission.</p> <p>2. If the plaintiffs were mechanics, and contracted to do the work in the capacity of mechanics, they would be entitled to their Hen. Aliter, if they were to do the work in the capacity of contractors. This question the jury must decide.</p> <p>3. Whilst the construction of a written contract is for the court, still it is beyond its province to determine whether work done thereunder constituted parties thereto mechanics.</p>

Practice in the Supreme Court. Guaranty. Promissory notes. Franchise. Roads and bridges. Grant. Warranty. Before Judge Buchanan. Floyd Superior Court. January Term, 1875. Shorter brought assumpsit against Wright, on a written guaranty of the payment of a note on J. L. Cobb and James Morris, security, for $2,500 00, dated July 16th, 1861, and due at twelve months, with interest from date.

<p>If the legal title to land be in the husband and he holds the possession thereof under such title, and the title and possession so remain until a creditor, who gave credit on the faith that the property was the husband’s, without any notice of the wife’s equity, reduces his debt to judgment, the lien of such judgment will bind the land and will be enforced against a secret equity of the wife, resulting from the fact that her money paid for the land.</p>

<p>On the facts of the case there was no abuse of discretion in granting a new trial, whether the judge erred in any of his rulings oil the former trial or not. If he did err, as he has granted a new trial, it is fair to presume that he will discover and correct his own errors.</p>

<p>1. If there be sufficient evidence to sustain the verdict, this court will not control the discretion of the court below in refusing to grant a new trial on the ground that the verdict is against the weight of the evidence.</p> <p>2. In a case where the testimony clearly shows that the defendant is guilty of more than a bare assault, it is not such error to refuse to cliarge that the jury may find him guilty only of the assault, as to requii'e the grant of á new trial.</p> <p>3. Newly discovered evidence which tends only to impeach a witness, will not authorize the grant of a new trial, especially if the effort to impeach be the sayings of the witness sought to be impeached, spoken subsequently to the trial.</p>

<p>1. The copy of the draft and indorsement thereon, annexed to a declaration, framed in the brief statutory form, is part of the declaration itself, and may be used to aid defective allegations. The indorsement need not be alleged if it is copied.</p> <p>2. An indorsement “jpr. collection,” made by the payees, is. cancelecl-bv— their subsequent indorsement to other indqmjeesjfir_xaJue.</p> <p>3. When the defendants are allowed to defend as fully as if the bill had not been negotiated, it is immaterial on what consideration, or for what purpose, or with what motive, the payees transferred or the plaintiffs acquired, title to the paper.</p> <p>4. Unfriendly feeling between the parties should not go in disparagement of the defense. The motive that induced the filing of the plea is immaterial ; the question for the jury is whether the plea is true or not true.</p> <p>5. Goods ordered are, after acceptance, presumed to be of the quality ordered. The burden of proving them inferior is on the purchasers, who must establish the fact with that degree of certainty which suffices in civil cases generally. They need not go beyond this in clearness or force of evidence.</p> <p>6. That the purchasers made partial payment, with knowledge that the goods were, in quality, inferior to those ordered, will not hinder them from pleading the defective quality as partial failure of consideration when afterwards sued for the balance of the price.</p> <p>7. The abatement of the purchase money for goods sold with warranty of quality, express or implied, should be equal, at least, to the difference between the agreed price and actual value as reduced by defective quality. , Purchasers are entitled to this abatement whether, in disposing of the goods, they lost anything or not. What they realized is of no consequence, except as it may tend to illustrate the question of value.</p> <p>8. In order for a sale to illustrate value, the medium of payment, as well as the price, should be regarded. If the sale were for uncurrent funds, the value of such funds at the time and the place of the transaction is material.</p> <p>9. On a plea of partial failure of consideration for defect in quality of goods, it is not competent for the purchasers to prove, in general terms, that they sold a large quantity of the goods for uncurrent funds, and that the funds were a total loss.</p>

<p>1. An indictment for this offense under section 4488 of the Code, should allege that the principal thief has been tried and convicted of the offense ; if such principal cannot be talcen so as to be prosecuted and convicted, then the accessory in receiving the stolen goods should be indicted under section 4489 for a misdemeanor.</p> <p>2. .Under an indictment for being accessory by receiving stolen gooods when the principal thief is only charged with simple larceny, the evidence should be confined to that, and it is error to admit an indictment for burglary and a plea of guilty thereon.</p> <p>3. The indictment should specify the particular offense of which the principal thief was convicted, whether larceny from the person or the house or simple larceny or burglary, so that the record of the court — the pleadings— shall show that the judgment or sentence is right according to the case made. The punishment of -the accessory varies with that of the principal. In burglary in the night, it may be twenty years in the penitentiary, in larceny from the house, ten years, while in simple larceny it would be fine or imprisonment in jail, ot work in the chain-gang.</p>

<p>1. The act of February 27th, 1874, declaring that property exempted from levy and sale by section 2040 of the Code, shall not be exempt as against the purchase money, applies to a mortgage executed for the purchase money of land prior to the passage of the act.</p> <p>2. Debtors have no vested right not to pay their debts. Exemption of their property from legal process for the satisfaction of creditors is but a privilege ; mere grace and favor, dependent on the will of the state. Statutory exemptions are subject to be reduced or revoked by the legislature, and constitutional exemptions, by the people, through a change of the organic law.</p> <p>3. The judgment foreclosing a mortgage is a final adjudication that the debt is due and that the property is subject to pay it. It is a specific judgment against the specific property, and if the mortgagor had the defense of exemption, and meant to urge it, should he not have presented it in answer' to the rule nisi ? Quart.</p> <p>4. After judgment of foreclosure has been rendered, and after the law granting exemption has been repealed, it is too late to have a portion of the land laid off, and, for the first time, assert exemption against the mortgage debt.</p> <p>5. It is too late, also, to say that the debt was not due according to the real contract between the parties, or that payments had been made before foreclosure which were not credited.</p> <p>6. Land subject to levy and sale for purchase money, and under mortgage for the same, is not disincumbered so long as any of the purchase money remains unpaid. No part of the tract is free until the whole debt is discharged. See Sale vs. Wingfield, decided at the present term;</p>

<p>Where an injunction restraining the sale of certain mules was violated, and the answer to the rule was that they were exempted as the property of one of the defendants by the ordinary and soM by his leave, and where both defendants had mortgaged the mules in thé same deed to complainants to secure them as the sureties of one of them on an administrator’s bond, and the evidence before the chancellor on the question whether one or both defendants owned the mules, was conflicting, and where one of the defendants sold the mules in violation of the injunction, and the evidence shows the complicity of the other therein:</p> <p>Held, that this court will not control the discretion of the circuit judge in punishing both defendants by commanding them to return the mules or pay into court the purchase money therefor, or be committed for contempt in default thereof.</p>

Estates. Husband and wife. Administrators and executors. Distribution. Equity. Parties. Before J udge Gibson. Burke Superior Court. November Adjourned Term, 1874.

<p>I. On an indictment for murder the court should not give the law of voluntary manslaughter in charge to the jury, if there be no evidence which would authorize the jury to consider that lower grade of homicide; but if there be sufficient evidence to create a doubt, however slight, upon the point of whether the offense be murder or voluntary manslaughter, and if one of the defenses urged by defendant’s counsel be, that the facts make a case of voluntary manslaughter, and if the attention of the court be called by counsel thereto, the court should instruct the jury upon the law of voluntary manslaughter as well as of murder; otherwise the jury would be deprived of their .privilege to pass upon the facts, and the defendant would be denied his right to have them try every issue of fact,</p> <p>2. It is not error to call the jury’s attention to physical facts, such as the appearance of the pistol and cartridges used in the difficulty by the deceased, as circumstances which they may invoke to settle the conflict in the testimony of witnesses, especially where the court says distinctly in connection with this part of his charge, that he neither expresses nor intimates any .opinion as to the effect thereof.</p> <p>3. The pistol, though fired off after the rencontre is over, may go to the jury for their inspection, and its condition as found at the close of the fight may be described by witnesses who saw it then and before it was altered by firing; but no experiment by firing, or otherwise, if made without defendant’s consent, and after the homicide, should be admitted as evidence. It might result in the improper manufacture of testimony after the close of the affray.</p> <p>4. " Witnesses may testify about the appearance of the pistol and cartridges at the close of the fight, marks of indentation or the want of such marks, as indicating whether other barrels had been snapped or not, and all other facts connected with the pistol and cartridges unaltered from their condition at the close of the fight; and upon further testifying that they are familiar with such weapons and their use and practice, they may give their opinions upon the question, whether the appearance of the pistol, cartridges, marks and indentations, or their absence, indicate .that other, and how many, barrels had been snapped; the jury, of course, "being free to 'form their own opinion and draw their own conclusion from all the testimony.</p> <p>5. The flight of the accused, where and when arrested, whether he resisted or not, how he was armed, and all the circumstances attending his arrest, are admissible to be considered by the jury for what they are worth.</p>

Equity. Amendment. Statute of limitations.. Damages. Before Juilgé Hill. Bibb Superior Court. April Term, 1875, During October, 1864, and February, 1865, Daly deposited with Ayres certain goods which the latter was to sell on commission. They yielded over $ 12,000 00 in Confederate money. While some of this money was in hand, Ayres agreed with Daly to invest the same in cotton under shelter.

<p>Administrators and executors. Res adjudicata. Remainder. Estates. Before Judge Hall. Newton Superior Court. September Term, 1875.</p> <p>Reported in the opinion.</p>

Pleadings. Trusts. Judgments. Executions. Before Judge Hill. Houston Superior Court. May Term, 1875.

<p>Injunction. Receiver. Vendor and purchaser. Before Judge Bartlett. Jones county. At Chambers. January 22, 1876.</p> <p>Reported in the opinion.</p>

<p>1. After personal property is sold and delivered there is no lien for the purchase money implied by law, even though the purchaser was insolvent and knew he was unable to pay.</p> <p>2. The right to rescind a sale for fraud must at least be claimed, if not exercised, befor.e a court of equity will treat the sale as rescinded or subject to rescisión.</p> <p>3. Creditors without lien or title, and who have not reduced their claims to judgment, have, as a general rule, no right to invoke interference by injunction and receiver to prevent an assignment of the debtor’s goods, or to deprive the debtor or his assignee of possession. This rule holds as to debts not due as well as to those past due.</p>

<p>Administrators and executors. Before Judge Bartlett. Richmond Superior Court. October term, 1875.</p> <p>Reported in the opinion.</p>

<p>In the affidavit to foreclose a lien in behalf of the owner of a steam saw-mill^ it must appear, affirmatively, that the demand for payment was made when, or after, the debt became due. It is not sufficient to swear to a demand generally with no indication as to time.</p>

<p>Bankrupt. Attachment, rant. J udgments. Costs. Muscogee Superior Court. Mechanic’s lien. Distress War-Before Judge James Johnson. May Term, 1875.</p> <p>.Reported in the opinion.</p>

<p>1. An assignment by a debtor for the equal benefit of all his creditors, violate^no law or public policy of this state. Therefore, such an assignment lawfully made in South Carolina by a resident thereof, will pass personal assets found in Georgia.</p> <p>2. Such assets having been attached here, (by garnishment,) at the instance of Georgia creditors, after the execution of the assignment and notice thereof given to the garnishee, a judgment applying to their claims a pro rata share of the assets, and no more, is quite as favorable to the attaching " creditors as the law of the case will warrant.</p> <p>3. Against such an assignment the courts of this state will not hold the assets here for administration till Georgia creditors are satisfied in full.</p>

<p>Actions. Abatement. Administrators and executors. Before Judge Buchanan. Fayette Superior Court. August Term. 1875.</p> <p>Reported in the opinion.</p>

Equity. Decree. Statute of limitations. Before Judge Tompkins. Spalding Superior Court. August Term, 1875.

<p>Bond for titles. Levy and sale. Before Judge Buchanan. Coweta Superior Court. September Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Husband and wife. Trusts. Statute of limitations. Evidence. Presumption. Charge of court. Before Judge Hall. Dougherty Superior Court. October Term, 1875.</p> <p>Report unnecessary.</p>

<p>Criminal law. Forgery. Before Judge Gibson. Eichmond Superior Court. April Term, 1875.</p> <p>Eeported in the opinion.</p>

<p>1. Where the verdict is against both of the defendants sued, and finds one of them to be security only, a judgment entered up against “the defendant,” is to be construed as including both, the omission of the letter “s” at the termination of the word defendant, being an immaterial clerical error. The judgment is not void by reason of failing to describe the security as security, but is amendable. "</p> <p>2. Where, upon an execution against both defendants, the sheriff entered a levy, in due time, as made upon the property of one, (naming him,) the entry kept the judgment from becoming dormant as to either, for seven years from the date of the levy.</p> <p>3. After such a levy had been disposed of by selling the property and paying out the proceeds to older fi. fas., it was competent, by leave of the court, to amend the judgment by inserting therein the letter “ s ” and the name of one of the defendants as principal, and the name of the other as security, so as to make the judgment, in that respect, conform to the verdict. And it was competent, by like leave of the court, at the same time, to amend the fi. fa. by designating therein one of the defendants as principal and the other as security, thus making the fi. fa. conform to the judgment as amended.</p> <p>4. It was no obstacle to making these amendments that an affidavit of illegality, interposed by the security, had previously been sustained, and a levy upon his proporty dismissed, the grounds of illegality insisted upon being the variances between the verdict and the judgment, and between the judgment and the fi, fa., which the amendments served to obviate,</p> <p>5. Such amendments were favorable to the security, being chiefly in respect to matters intended by the law for his benefit. They were, moreover, warranted by the record, which imports absolute verity. That they were made without notice to him is, consequently, nothing to his prejudice. Before they were made, he complained by affidavit of illegality, of the defects which they remedied, and, by so doing, virtually demanded the correction of said defects, the same being amendable.</p> <p>6. As between the parties to the action, amendments to the judgment and fi, fa., made to establish conformity in the whole record, relate back, generally, and for most purposes, to the original dates, and take effect therefrom.</p> <p>7. After a proper order to amend a judgment and fi. fa., it is not requisite to enter a new judgment or issue a new fi. fa.</p> <p>8. Affidavit of illegality by the security being made, upon the grounds that no legal judgment was entered, that the verdict and judgment were dormant, and that no legal execution was issued, was properly overruled — the levy and the affidavit of illegality being subsequent to the proceedings and amendments indicated in the foregoing notes, and within two years after the levy on the principal’s property referred'to in note second.</p>

<p>Banks. Stockholders. Statute of limitations. Illegality. Before Joseph B. Gumming, Esq., judge pro hao vice. Richmond County. At Chambers, July 23d, 1875.</p> <p>Reported in the opinion.</p>

<p>Trusts. Equity. Receiver. Debtor and creditor. Parties. Before Judge Tompkins. Richmond Superior Court. October Term, 1875.</p> <p>The facts are sufficiently stated in the first head-note.</p>

<p>1. An order of the court in these words: “Upon motion of defendant’s counsel, ordered that this cause be dismissed upon the ground that the allegations in the petition do not make a case upon which plaintiffs can recover,” is a judgment of the court upon demurrer to the declaration, and operates as a complete bar to a second suit for the same cause of action, and may be pleaded as “res adjudicata" thereto.</p> <p>2. If it did, the plea of “res adjudicata” would bar the second action and any legitimate amendment thereto; and if the amendment set out a new and distinct cause of action, it would not be received and allowed as an amendment, but if it could be so allowed, the statute of limitations would run against it from the breach of the contract to the date of the amendment.</p> <p>3. Such judgment on demurrer and dismissal of plaintiffs’ action consequent thereon, is not included in section 2932 of the Code, so as to authorize the plaintiff to renew his action within six months, and to make the renewed case stand upon the same footing as to limitations with the original case.</p>

<p>Landlord and tenant. Torts. Distress warrant. Damages. Before Judge Crawford. Troup Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Equity will compel the payment of a sufficient per cent, of unpaid stock subscribed, to pay the debts of a corporation; and a bill brought against the stockholders to that end is the proper remedy.</p> <p>2. The fact that the stockholders agree in their contract to pay such per cent, as the directors shall call for, does not change the remedy and require the creditors to apply for a mandamus against the directors to do their duty under the contract; the remedy in equity is more complete, and is the only appropriate and adequate remedy, where the bill alleges that the directors refuse to call in and collect the stock subscribed, and also that many stockholders are insolvent, and some dead, and some beyond the jurisdiction, and that the debts are of various amounts and due to many creditors; the powers of a court of equity to adjust all the equities, audit the debts, and fix the per cent, upon the solvent stock necessary to pay the debts, are peculiarly adapted to the exigencies of just such a case.</p> <p>3. Process which commands the attendance of the defendants at court on a certain day, under penalty of the law, is valid; service of the bill by private persons with affidavits annexed, verifying such service, is legal; and if such process and service were irregular, such irregularity would be cured by appearance, demurrer and answer.</p> <p>4. After defendants are fully heard on demurrer to the whole bill, and the demurrer for want of equity has been overruled, and the answers have been filed, and the case has gone to an auditor and his report has been filed and excepted to, and the case is pending on the exceptions, it is too late to move to dismiss the bill.</p>

<p>Railroads. Master and servant. New trial. Before Judge Bartlett. Morgan Superior Court. September Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Warranty. Vendor and purchaser. Before Judge James Johnson. Muscogee Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

Promissory notes. Indorsement. Protest. Before Judge Knight. Lumpkin Superior Court. September Term, 1875. Banks & Brother brought complaint against Besser as indorser on a note payable “at bank of Banks & Brother.” The defendant pleaded the absence of protest for non-payment and notice to him thereof. On demurrer the court refused to strike this plea, and plaintiffs excepted.

<p>Husband and wife. Torts. Homicide. Before Judge James Johnson. Talbot Superior Court. September Term, 1875.</p> <p>Reported in the opinion.</p>

<p>The indorsee of a note containing no negotiable words, is chargeable with notifee of all defects in the consideration, although he takes it'before due and for value. The negotiable paper which is not subject to such a defense, in the hands of a bona fide indorsee, is paper which the parties render negotiable as a part of their express contract, and not such as, •wanting negotiable words, the statute alone renders negotiable for the purpose of passing the legal title and enabling the indorsee or assignee to sue in his own name.</p>

<p>Promissory notes. Consideration. Parent and child. Before Judge Wright. Mitchell Superior Court. May Term, .1875.</p> <p>Reported in the opinion.</p>

<p>Pleadings. Evidence. Garnishment. Usury. Contracts. Consideration. New trial. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1874.</p> <p>Report unnecessary.</p>

<p>Practice in the Superior Court. Before Judge Wright. Decatur Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Where an executor takes the note of one member of a firm .which was indebted to his testator on a deposit account, with a note on a third person as collateral security, in payment of such indebtedness, if, at the time, for the benefit of the estate and done in good faith, the original indebtedness is discharged.</p>

Equity. Bill of review. Before Judge Clark. Sumter County. At Chambers. February 25th, 1876. Bennett filed his bill against Brown, praying that a decree rendered in favor of the latter against him, on a bill filed in Sumter superior court against Furlow, Price & Furlow, to which he had subsequently been made a party, should be vacated, and that the sale of certain property levied on under the execution issued on such decree should, in the meantime, be enjoined.

<p>Whilst defendants having an equitable defense and being empowered by the Code to make it at law, will be concluded by the neglect to set it up as a general rule, yet where new parties must be made before complete equity can be done, and courts of equity are authorized by statute to make such parties whilst courts of law are not, equity will administer relief and to that end will grant an injunction to stay the common law proceedings before or after judgment, on a proper case made.</p>

<p>1. The assets of an insolvent firm were in the hands of a receiver. The creditors agreed among themselves upon a rule of distribution to be carried out by a committee. This committee refused to allow the claims of certain creditors. The excluded parties were about to file a bill to enjoin their further proceeding with such distribution, when it was agreedjhal the committee should report their action to the court, as if a bill had been filed, for direction. This was done, and the report as to the rejected claims set aside. To this ruling exception was taken.</p> <p>Held, that the court had no authority to act upon the matter in. controversy upon the pleadings before it.</p> <p>2. The 2ist rule of court to the effect that pleadings cannot be dispensed with by consent, is applicable, in reason and spirit, to courts of equity.</p>

<p>Evidence. Practice in the Superior Court. • Corporations. Stock. Practice in the Supreme Court. Before Judge Wright. Mitchell Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Deceased was shot on Tuesday night and died Saturday following. During his illness on Friday and previously, he said he was “ certain to die,” ■ and then said defendant shot and killed him, stating some of the circumstances. The court admitted the statements, and instructed the jury that it was for them to say whether they were dying declarations made in the .article of death:</p> <p>Held, that the court ruled correctly.</p> <p>2, When, in addition to these dying declarations, there is other direct testimony to the crime, and this testimony and other circumstances show defendant’s guilt:</p> <p>Held, that the evidence is ample to sustain the verdict.</p>

<p>A policy of insurance provided that the annual premium was to be paid by an annual loan of $100 oo and a cash annual premium of $107 30. It was conditioned to be void if the premiums due shall not be paid at the time stated. The application declared that the policy should not be binding until the first premium shall have been received by the company, during the lifetime and good health of the person insured. The agent of the company contracted with the insured that the first year’s premium was to' be paid in services to be rendered by the insured to the company as medical examiner, and that if such services exceeded the first year’s premium, a credit was to be entered for the excess on that of the next. The insured died during the first year, having rendered service as medical examiner to the time of his death, but the fees did not amount to the first year’s premium :</p> <p>Held, that the agent of the company exceeded his authority in making the contract above stated, and that the beneficiary of the policy was therefore . not entitled to recover thereon. "</p>

<p>I. In order to entitle a party to have a judgment entered on the minutes nunc pro tunc, he must show when it was rendered, at what term of the court, if not on what day of the term.</p> <p>2. When a case stands on the docket as undisposed of, and no entry on the papers or elsewhere is produced indicating any disposition of it, a final judgment cannot be entered nunc pro time on parol testimony alone, unaided by the judge’s recollection, where counsel for one of the parties denies on oath all knowledge of the alleged judgment, and there is no positive affirmative evidence but that of the adverse counsel.</p>

<p>New trial. Before Judge Buchanan. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Banks. Officers. Assignments. Before Judge Gibson. Richmond Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Where one of the subscribing witnesses to an unrecorded deed was dead, and the other stated that he did not recollect its contents, and the instrument was lost, parol evidence as to its terms was admissible.</p> <p>2. Where a power of attorney authorized the agent thereby appointed to dispose of several tracts of land, and it was recorded with the conveyance of one tract, but subsequently lost, such record was admissible upon the trial of an issue as to the title to another tract conveyed thereunder, for the purpose of showing that such power had once been in existence.</p> <p>3. Whilst the preliminary inquiry necessary to the introduction of secondary evidence is addressed to the discretion of the court, yet all the evidence admitted is for the consideration of the jury.</p> <p>4. If an agent sign a note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent, he will be personally liable on the note, and the principal will not be liable. If an agent make a note in his own name and add to his signature the word “ agent” and there is nothing on the note to indicate who is the principal, the agent will be personally liable just as if the word agent were not added.</p> <p>5. There is sufficient evidence to sustain the verdict.</p>

<p>Equity. Administrators and executors. Judgments. Before Judge Herschel Y. Johnson. Johnson Superior Coi^’t. September Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Equity. Fees. Costs. Receiver. Witness. Debtor and creditor. Auditor. Judgments. Before Judge Hanseel. Dougherty Superior Court. April Term, 1875.'</p> <p>Reported'in the opinion.</p>

<p>I. The judgment of this court, with directions to sell certain property belonging to a debtor in 1855, and out of that property, and not otherwise, to pay a trust debt, will not be construed to embrace the rents, issues and profits of the lands so to be sold, nor the stock and cattle, nor the wagons, tools, etc., thereon, none of -which belonged to the debtor at that time, to-wit: in the year 1855.</p> <p>2. Mortgages of lands in this state are mere securities for debt; they pass no title to the mortgagee; the mortgagor holds the title until sold out and dispossessed by foreclosure; hence the rents, issues and profits are the mortgagor’s, and are not embraced or covered by the mortgage; nor is stock, or cattle, or the increase thereof, or plantation tools, subsequently bought, unless expressly stipulated for in the mortgage.</p>

<p>Bankrupt. Judgments. Lien. Before Judge Gibson. McDuffie Superior Court. September Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Improper acts by an agent touching matters out of the scope of his agency, are not to be imputed to the principal.</p> <p>2. There is no presumption that a railroad corporation has authorized its local agent to hinder access by the counsel of an adverse suitor to a witness in the employment of the company; and, unless the delegation of such authority appears in evidence, the corporation will be unaffected by conduct of the agent tending to prevent such access.</p> <p>3. What a mere spectator reported immediately after a homicide, as to the cause thereof, is not evidence as part of the res gesta.</p> <p>4. An employee of a railroad company who saw another employee killed by the cars, cannot affect the company by his declarations, made immediately after the occurrence, to the effect that the disaster was caused by the negligence of those in charge of the train, the speaker himself not being one of the number.</p> <p>5. A witness cannot be asked on the stand by the party introducing him, whether he has not made a certain statement out of court, unless he has surprised the party by testifying to something inconsistent with the alleged statement.</p> <p>6. When a party, on the examination in chief, is permitted to put leading questions to his own witness, on the ground that the witness is in 'the employment and under the influence of the opposite party, the court may allow the latter to put leading questions on cross-examination.</p> <p>7. To make a railroad company responsible for the homicide of an employee by the negligence of co-employees, it is essential that the deceased should . have been free from fault himself; and when the evidence for the plaintiff shows clearly that he was not, there can be no recovery, and a judgment of non-suit should be affirmed.</p>

<p>An attachment for purchase money, under section 3293 et seqa of the Code, cannot be levied, by garnishment or otherwise, on property other than that described in the affidavit.</p>

Attorney and client. Fees. Lien. Before Judge Gibson. Richmond Superior Court. October Term, 1875. In February, 1875, Caroline Z. Fogartie employed plaintiffs in error, as her attorneys at law, to bring an action against John A. Chambers for the recovery of a certain valuable trotting stallion and racer known as “Hickory Jack,” of which horse she held a bill of sale from the said Chambers.

<p>Presumptions. Judgments. Justice courts. Before Judge Bartlett. Putnam Superior Court. September Term, 1875.</p> <p>Reported in the decision.</p>

<p>1, The discretion of the chancellor in granting injunctions and appointing receivers, will not be controlled unless abused.</p> <p>2. A chancellor has no authority, before the final hearing, to direct a receiver to sell a portion of the property' in his hands and to pay to complainant an amount of money claimed to have been advanced by him to the defendants.</p>

<p>1. When the only occasion for going into equity is, that the judgment sought to be enjoined is conclusive at law in another suit against the complainant, an amendment to the bill which alleges that the judgment is void for want of jurisdiction in the court that rendered it, is demurrable. Such an amendment is not in aid of the original bill, but inconsistent with, and destructive of it. A judgment void for want of jurisdiction need not be enjoined : ‡6 Georgia Reports, 396.</p> <p>2. When the object of a bill is to attack a judgment for something that transpired at the term when it was rendered, evidence of what took place at a subsequent term on the trial of an affidavit of illegality, is irrelevant.</p> <p>3. A judgment against an administrator reviving a dormant judgment rendered against the intestate, is evidence of assets.</p>

<p>Factors’lien. Pleadings. Before Judge Hall. Monroe Superior Court. August Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. A tax collector who has collected money under orders of the ordinary levying county taxes, cannot urge the invalidity of such orders as an excuse for not paying over the money to the county.</p> <p>2. It is no sufficient accounting for the money so collected, for the collector to show that he has paid the same into the county treasury in liquidation of a balance against him on the tax digest of a previous pear.</p>

<p>1. An’ official bond, though not conditioned as the statute prescribes, will, under section 167 of the Code, be considered as if executed in conformity to the statute.</p> <p>2. Though the bond of an ordinary be conditioned for the faithful discharge of all of his official duties, yet, in conformity with the statute, the condition will be held as being for the performance of his duties as clerk of the ordinary. Therefore such bond cannot be sued on for the failure to take security from a county tax collector.</p>

<p>Verdict. Waiver. Evidence. Before Judge James Johnson. Talbot Superior Court. September Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Settlement. Before Judge Underwood. Floyd Superior Court. July Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. If, for a valuable consideration paid down, a party contracted to leave to another a money legacy by will, and died without performing the contract, some good legal reason should be shown by his representative why performance ceased to be obligatory — such as rescission, novation, release, etc.</p> <p>2. Though newly discovered evidence be cumulative, and therefore not, of itself, cause for granting a new trial, yet it may be regarded somewhat in passing upon the whole case, another ground of the motion being that the verdict is contrary to evidence.</p>

<p>Equity. Contracts. Before Judge Underwood. Floyd Superior Court. July Term, 1875.</p> <p>Reported in the decision.</p>

<p>Guardian and ward. Bond. Presumption. Evidence. Before Judge Kiddoo. Dougherty Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Trusts. Lien. Before Judge Clark. Sumter Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Where the affidavit upon which a distress warrant was based, alleged that the defendant was indebted to the plaintiff $1,232 50 for rent, and the evidence was to the, effect that the defendant contracted to pay a certain number of bales of cotton, which was shown to be worth the sum aforesaid, there was not such a variance as to require a non-suit.</p> <p>2. The discretion of the court below in imposing the payment of costs on a party seeking to amend his pleadings, will not be controlled unless abused.</p> <p>3. Where rent is contracted to be paid in cotton, a distress warrant lies therefor.</p> <p>4. Notwithstanding errors in the charge of the court, as the verdict did substantial justice, a new trial will not be ordered.</p>

<p>Criminal law. Burglary. Accomplice. New trial. Before Judge Underwood. Floyd Superior Court. July Adjourned. Term, 1875.</p> <p>Reported in the opinion.</p>

Injunction. Receiver. Before Judge James Johnson. Muscogee County. At Chambers. June 5th, 1875. Thompson filed his bill against Gunby and Ellis & Harrison, making, in brief, the following case: On August 1st, 1866, one George Hargraves agreed to convey to R. M. Gunby and D. L. Booker lot number sixty-two, in the city of Columbus, for $15,000 00, one-fourth to be paid cash, the remainder in five years, with interest payable annually.

<p>A contract for the production of charcoal being that the producers were to deliver a definite quantity of good merchantable coal each day for a period of seven months, and that the consumer was to receive it at the pits, “ in the basket,” and haul it to the furnace, where it was to be measured and credited to the producers, at six cents per bushel, on their account for cash advances, it was the right of the producers to draw the coal, from the pits at the rate requisite to make the stipulated delivery daily; and if the consumer failed to receive and haul at the like rate, any depreciation in quality or diminution in quantity occurring by exposure to weather, would be at his risk. It follows, that so long as the cash advanced to the producers was largely in excess of the value, at contract price, of all the coal drawn from the pits, the producers would have no reason to abandon or rescind the contract, or to sue for a breach in not hauling the coal away — more especially, if the consumer had never signified any positive determination not to bear the loss occasioned by destruction or depreciation from weather.</p>

<p>Railroads. Diligence. Before Judge Hall. Worth Superior Court. October Term, 1875.</p> <p>Reportéd in the decision.</p>

<p>On land conveyed in 1870, the vendor, or one holding the notes giveá for the purchase money, has no lien for payment; nor, after death of the vendee, has such creditor any priority of payment, out of the land or its proceeds, over other creditors by promissory notes, etc.</p>

<p>Administrators and executors. Jurisdiction. Bonds. Venue. Comity. Before Judge Buchanan. Troup Superior Court. November Term, 1875.</p> <p>Reported in the decision.</p>

Contracts. Time. Damages. Before Judge Tompkins. Chatham Superior Court. May Term, 1875. Callahan and Drane, as surviving partners of the firm of McDowell, Callahan & Company, sued the Savannah and Charleston Railroad Company on an account. Their demand was set out in different forms in as many different bills of particulars, but may be briefly stated as follows: 1.

<p>Equity. Insurance. Contracts. Principal and agent. Delivery. Before Judge Gibson. Richmond Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>The act of 1866 and the constitution of 1868 made a sweeping and radical change in the status of married women in respect to rights of property. Prior to this change, separate estates depended generally on the express provisions of marriage settlements, wills and other conveyances; now they exist by virtue of the general law of the land, as a universal rule of property. The restrictions in the Code upon the testamentary power of married women are, therefore, no longer of force, or, at all events they are inapplicable to separate property acquired since the act of 1866. As to such property, the wife may make a valid will of realty or personalty without the consent of her husband.</p>

<p>As the defendant was found to be indebted to the plaintiff a definite sum at the date of the agreement referred to in the decision, interest was properly-allowed thereon.</p>

<p>Libel. Amendment. Torts. Justification. Practice in the Superior Court. Witness. Charge of court. Damages. Set-off. Before Judge Wright. Early Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Homestead. Levy and sale. Evidence. Deeds. Before Judge Pottle. Hancock Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. There was sufficient evidence in this case to sustain the verdict-.</p> <p>2. Newly discovered evidence to the effect that a witness is prepared to swear that she heard a person other than the defendant admit that she did the criminal act of which defendant was convicted, will not authorize a new trial.</p>

Charge of Court. New trial. Before Judge Cowart. City Court of Atlanta. June Term, 1875. Leake brought complaint against de Saulles & Company on an account for $699 96, due for services rendered as a clerk, and for $120 00 money loaned. Defendants pleaded that the account, so far as correct, had been paid. That the plaintiff had been employed by the year and had left their service without cause, thereby damaging them $250 00.

<p>1. In a claim case, the burden of proof is upon the plaintiff in execution to show title in the defendant in order to authorize a verdict that the property is subject; and when the plaintiff seeks to do so by proving that the proceeds of the sale of lands voluntarily conveyed to the wife by the husband, after he became indebted to the plaintiff, paid for the land levied on, though the deed was made by the vendor to the wife, the deeds from husband to wife and from the vendor of the land levied on to the wife, are essential links in the chain which binds the land levied on to pay the plaintiff’s debt, and parol evidence of the character or contents of these deeds is inadmissible; the deeds themselves must be introduced or accounted for.</p> <p>2. When such a deed is introduced, its consideration may be attacked by parol, and though purporting to be valuable, it may be proven to be purely voluntary.</p> <p>3. An insolvent debtor cannot make a legal voluntary conveyance of lands' so as to defeat existing debts, and section 2662 of the Code is applicable to such a case; nor does it matter with what intent the deed be made; the debtor must be just before he can be generous, he must pay what he owes before he can give away. Yet whether he be insolvent or not, is a question for the jury, and that question being in dispute and dependent on the facts proven, it is error in the court to charge that “ no debtor in the condition of Primrose could make such a gift of his property.”</p> <p>4. An accommodation indorser becomes a debtor at the time he puts his name on the note, and not from the time that the note matures; and if in this case he made the deed of gift to his wife after the indorsement, and then owed more than he owned, he was insolvent; and the deed to his wife, if voluntary, was injurious to the holder of the note and void against him as an existing creditor.</p>

<p>I. Defendant in attachment does not waive his traverse to the plaintiff’s affi- - davit by afterwards pleading to the merits of the action. The two defenses are perfectly consistent, the formar going to the writ and the latter to the declaration.</p> <p>2. While the traverse is not to delay the plaintiff after he has served the defendant personally with notice, it should be tried either before or with the main case, unless continued for cause when the main case is ready.</p>

<p>Railroads. Receiver. Before Judge McCutqhen. Barton Superior Court. July Term, 1875.</p> <p>Report unnecessary,</p>

<p>1. A memorandum on an account and application for a mechanic’s lien,-not recorded with the lien, and with no proof in regard to the person who made the memorandum, or of its truth, is no evidence at all. .</p> <p>2. When the verdict of the jury has no legal evidence to sustain it, a new trial must be granted.</p>

<p>A promise to pay in currency by a future day, a sum equal to the value of a given amount of currency at the date of the promise, is to be discharged, after maturity, with no less currency than at maturity. Such a contract gives to the debtor the benefit of appreeciation up to the expiration of the credit, but not of that which occurs after default in payment.</p>

<p>Where property offered for sale by the sheriff was withdrawn on the promise of the defendant that he would pay off the execution levied thereon, and this payment was in fact made, the money in the hands of the sheriff is not subject to an older execution against such defendant.</p>

Criminal law. Extortion. Officers. Mes gestee. Evidence. Witness. Charge of court. Before Judge Tompkins. Chatham Superior Court. May Term, 1875. An indictment was found against White for the offense of extortion, whilst acting as a special constable, in the execution of a warrant for assault and battery against one William Sheppard. He pleaded not guilty.

<p>Homestead. Demurrer. Before Judge Bartlett. Jasper Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Garnishment. Jurisdiction. Evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1874.</p> <p>Reported in the opinion.</p>

<p>An executor cannot bind the estate of his testator by the execution of a note signed by him “ as executor.” The assets of such estate are only bound for the debts contracted by the testator during life.</p>

New trial. Landlord and tenant. Tort. Before Judge Pottle. Wilkes Superior Court. November Term, 1874. Duncau brought complaint against Anderson for $300 00 damages, alleged to have been sustained by him on account of the enticing away by the defendant of one Enoch Huff, a farm hand employed by the plaintiff for the year 1874, by reason of which his services were lost. The record discloses no plea.

<p>Criminal law. Rape. New trial. Before Judge Underwood. Floyd Superior Court. July Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Criminal law. New trial. Newly discovered evidence. Before Judge Hopkins. Eulton Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Criminal law. Continuance. Before Judge Hall. Pike Superior Court. April Term, 1875.</p> <p>Reported in the decision.</p>

<p>Criminal law; Charge of court. Stabbing. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1875.</p> <p>Reported in the opinion,</p>

<p>Guardian and ward. Principal and agent. Promissory notes. Witness. Before Judge Gibson. Greene Superior . Court. September Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

<p>When a rule issues against a sheriff requiring him to show cause why he should not be attached for contempt for failure to levy certain executions on property shown to have been in the possession of the defendant, the measure of his liability is the injury thereby sustained by the plaintiff. He may therefore show that the property in the possession of the defendant belonged to some one else.</p>

<p>When a debtor is in insolvent circumstances and makes an assignment to certain favored creditors, of goods to pay debts due them, and a bill is filed by other creditors alleging fraudulent combination and conspiracy between the preferred creditors and the debtor, and it is not alleged that the complainants claim title to the goods so assigned, or have any judgment or lien thereon, or that the parties to whom the assignment is made are insolvent, an injunction should not be granted, though the facts and circumstances may point to such fraudulent conduct as to induce the court to retain the bill, and investigate on the hearing the whole case, and decide and decree the equities arising thereon.</p>

<p>Injunction. Administrators and executors. Judgments.. Notice. Ejectment. Before Judge Peeples. DeKalb County. At Chambers. February 22d, 1876.</p> <p>Reported in the decision.</p>

<p>Practice in the Superior Court. Bill of exceptions. Criminal law. Bond. Bail. Sheriff. Before Judge Knight. Union Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Sales. Befiwe Judge Clark. Webster Superior Court. September Term, 1874.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Judgments. Practice in the Supreme Court. Evidence. Before Judge Crawford. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Landlord aud tenant. Distress warrant. Practice in the Supreme Court. Before Judge Hall. Dougherty Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

Municipal corporations. Taxes. Injunction. Before Judge Tompkins. Chatham County. At Chambers. February 5th 1875.

<p>This court will not control the discretion of the presiding judge in granting a new trial on the ground that the verdict is decidedly against the weight of the evidence, especially when the motion is fortified by many affidavits to newly discovered evidence, although that evidence be somewhat cumulative, and though some of it tends to contradict and impeach one of the plaintiffs who testified in the case, when the defendant made affidavit that the plaintiffs surprised him by denying the contract set up in his equitable plea, alleging that said plaintiffs had often admitted its truth to him, and he was not, in consequence of such admission, prepared to impeach, him on the trial.</p>

<p>When a judgment refusing a new trial is reversed by the supreme court, the plaintiff in error, as soon as the remittitur is returned to the court below, is entitled to a judgment for costs incurred in the supreme court: Code, section 4290. And this right is not affected by instructions contained in the judgment of reversal, to the effect that a new trial will still be refused if the defendant in error will consent to certain terms, although he does consent to the prescribed terms at the time the remittitur is entered.</p>

<p>I. Though in all cases where stock is killed by a railroad, even in a pasture which encloses the road, the presumption of negligence is against the company, and the burden is upon the company to show the absence of negli- ' gence and that the accident was unavoidable; yet, when evidence on that subject is before the jury, and the law has been correctly given in charge, and the jury has found for the company, this court will not control the discretion of the judge who presided in the court below in refusing, to set aside the verdict and grant a new trial.</p> <p>2. When the plaintiff in error does not furnish in the record the entire charge of the court below, this court will presume that the circuit court charged correctly, if the contrary be not manifest from the portions of the charge given and excepted to.</p> <p>3. A request to charge to the effect “ that the failure to keep the right of way clear of bushes is negligence on the part of the road and its employees, and if the cow was killed by the failure to see her on account of the bushes, you should find for the plaintiff,” was properly refused; because if such charge had been given, it would have taken the question of negligence from the jury, and left it entirely to the court; “negligence is a question for the jury; the judge has no right to determine what constitutes negligence:” 34 Georgia Reports, 330.</p>

<p>Estates. Condition. Levy and sale. Claim. Before Judge McCutchen. Murray Superior Court. August Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Criminal law. New trial. Practice in the Superior Coin-' • Jury. Evidence. Insanity. Before Judge Harris. Ware Superior Court, September term, 1874.</p> <p>Reported in the decision.</p>

<p>New trial. Practice in the Superior Court. Before Judge Chisholm. City Court of Savannah. July Term, 1875.</p> <p>Reported in the opinion.</p>

<p>The newly discovered evidence in this case suggests such a doubt as to whether the prisoner’s offense may not be voluntary manslaughter instead of murder; that, although not fully convinced that he is entitled to a new trial, under the strict rules of law, this court, in the exercise of the discretion confided to it by statute, directs a new trial, in order that the prisoner may have his case examined in the light of all the evidence, by a jury, whose province it will be to look at the facts themselves, and not suffer the doubt above indicated to influence their finding, unless a like doubt shall arise in their own minds by reason of the evidence which shall come before them, nor unless it shall moreover seem to them to be a reasonable doubt.</p>

<p>A decree was rendered requiring the defendant to deliver to plaintiff thirteen shares of stock in a mill company, which were included in a certificate for fifty shares of original stock, the defendant to retain the other thirty-seven shares. Defendant’s attorney, having obtained possession of said stock, applied to the mill company to issue certificates in accordance with such judgment. The company issued to defendant new stock to the value of thirty-seven shares of the original stock, but declined to issue to plaintiff in new stock the equivalent of the thirteen shares of original stock, upon the ground that plaintiff had, pending the litigation and before decree, obtained from it all of the extra new stock to which such fifty shares were entitled. On the aforesaid facts, the court did not err in discharging a rule against the attorney requiring him to show cause why said stock should not be delivered in accordance with the decree.</p>

<p>New trial. Practice in the Superior Court. Evidence. Amendment. Before Judge Tompkins. Chatham Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

<p>New trial. Witness. Before Judge Pottle. Wilke Superior Court. November Term, 1875.</p> <p>This is the third time this case has been before this court. See 51 Georgia Reports, 139; 54 Ibid., 451.</p> <p>Report unnecessary.</p>

<p>Criminal law. Burglary. Before Judge Tompkins. Chatham Superior Court. February Term, 1875.</p> <p>Reported in the opinion.</p>

Pleadings. Parties. State. Governor. Attorney and client. Presumptions. Evidence. Estoppel. Partnership. Fraud. Before Judge Hopkins. Fulton Superior Court. April Term, 1875. The state of Georgia 'brought complaint against J. M. & J. C. Alexander on an account for money had and received. To the declaration was attached the following bill of particulars: 1870. December 16th. To cash from treasury of Western and Atlantic Railroad..........$1,648 81 “ December 27th.

<p>Jurisdiction. Damages. City Court of Savannah. Certiorari. Presumptions. Accord and satisfaction. Estoppel. Before Judge Tompkins. Chatham Superior Court. May Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Principal and agent. Railroads. Evidence. Bill of lading. Before Judge Hopkins. Fulton Superior Court. October Terra, 1875.</p> <p>Reported in the opinion.</p>

<p>1. The court should not express the opinion to the jury that the facts (stating them) “make not a slight, but a strong circumstance from which they could infer that the pistol was concealed.”</p> <p>2. Counsel have the right to present their view of the law as well as the facts to the jury, especially in criminal cases, subject of course to the control of the court in the charge. Without this right, there can be no intelligent application of the law to the facts.</p>

Injunction. Contracts. Before Judge Wright. Mitchell County. At Chambers, January 31, 1876.

<p>Practice in tbe Superior Court. Certiorari. New trial. City Court of Savannah. Before Judge Tompkins. Chatham Superior Court. May Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. Citizens generally have no strict right of common of pasture in the "-woods/’ or upon the unenclosed lands of others; and an injunction will not be granted to restrain land-owners or other persons from unlawfully firing the woods at undue seasons of the year, to the injury or destruction of the range for cattle, where the injunction is applied for by a proprietor of cattle who rests his bill upon the right of common of pasture, but shows no right other than that enjoyed, or which might be enjoyed alike by the public in general.</p> <p>2. If equity will, in any case, restrain a breach of the law which restricts the firing of the woods to the months of February and March, will it do so where the system of burning complained of is a few acres at a time, and where cause for penal actions and criminal prosecutions on account of past execution of the system has already happened, and the complainant does not show by his bill that he has either sued or prosecuted the defendants for their past acts ? Quare ?</p>

Pleadings. New trial. Before Judge Tompkins. Chat-ham Superior Court. May Term, 1875. One of the grounds of the motion for new trial was that of newly discovered evidence, to the effect that Murphy and Clark had each told one Mills, in July, 1873, that the latter had no interest in the business of Murphy & Clark, but simply received wages as an employee. The mortgage sought to be foreclosed was executed on January 26th, 1871. The usual supporting affidavits were attached.

<p>Deed or will. Before Judge Clark. Webster Superior Court. September Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

<p>That there exists a public road upon land which was known to the vendee at the time of the purchase, does not constitute a breach of a covenant of warranty against incumbrances.</p>

<p>1. Judgment rendered in 1874, in a suit commenced in 1856, cannot be set aside for a clerical mistake in the process, the original defendant having appeared at the first term after the declaration was filed and pleaded to the merits of the action; his executor, on being made a party, having also pleaded to the merits; and no suggestion of any defect in the process having been made until after verdict and judgment, eighteen years posterior to the first appearance and plea.</p> <p>2. Even before the adoption of the Code, appearance and pleading to the merits waived service.</p>

Judgments. New trial. Practice in the Supreme Court-. Homestead. Debtor and creditor. Before Judge Bartlett. Morgan Superior Court. September Term, 1875. On January 31st, 1870, one James R. Martin applied to the ordinary of Bartow county for an exemption of personalty, to be set apart for the use and benefit of his family, the items specified aggregating in value $669 25.

<p>(Signed) “ Irwin & Anderson,</p> <p> Defendant's Attorneys." </p>

<p>Where, to an action on a contract, the defendant seeks to recoup the damages resulting from plaintiff’s failure to comply with his obligations thereunder, and the evidence is conflicting as to whether such damage resulted from the default of plaintiff, or of defendant, or of both, the jury may take into consideration the conduct of both parties and make their verdict accordingly.</p>

<p>Practice in the Superior Court. Equity. Judgment. lies adjudicata. Injunction. Interpleader. Executions. Before Judge Bartlett. Greene County. At Chambers. April 13th, 1876.</p> <p>Reported in the opinion.</p>

<p>Executions. Statute of Limitations. Levy and Sale. Before Judge Clark. Macon Superior Court. December Term, 1875.</p> <p>Reported in the opinion.</p>

<p>The exceptions specified in the Code, by which a prescriptive title will be defeated, are exhaustive, and will not be enlarged by construction.</p>

Railroads. Fences. Damages. Before Judge Pottdis. Oglethorpe Superior Court. April Term, 1876. Neely brought case against the Georgia Railroad and Banking Company for damages resulting from the killing of a mule and the disabling of a colt, both the property of the plaintiff. The defendant pleaded not guilty. The evidence presented, in brief, the following facts : The plaintiff, having made his crop, turned his mule out, having first hobbled her.

<p>1. The facts that a window was closed at bed-time at night and found raised and open the next morning at sunrise, and that a trunk was found in the garden broken open, and that gold and silver locked up in the trunk were found on the person of defendant, and that defendant voluntarily confessed that he got the money out of the house Sunday night, and took the trunk out of the house Sunday night, and had some matches and broke the trunk open, are sufficient to authorize a conviction for burglary at night.</p> <p>2. This court will not control the discretion of the court below in refusing a new trial on the ground of newly discovered testimony, unless it be such testimony as would very probably, if not certainly, change the verdict.</p> <p>3. Burglary at night is punishable in the discretion of the court, not less than five nor more than twenty years in the penitentiary, and a sentence of ten years, where a house was robbed of a trunk at night by the thief hoisting and entering a window and breaking open the trunk and stealing money therefrom, is not such “ cruel, unusual and excessive punishment” as to require this court to interfere. Punishment for crime is, and ought to be, largely in the discretion of the circuit courts.</p>

Injunction. Levy and sale. Presumption. Before Judge Tompkins. Chatham County. At Chambers. May 2d, 1876. On April 29th, 1876, Edward Lloyd and others filed their bill for relief and injunction against Lewis B. Endres. The allegations were as follows: On April 19th, 1876, complainants foreclosed laborers’ liens against S. N. Papot & Companjq before S. Elsinger, a notary public for Chatham county, and executions were placed in the hands of Julius Kaufman, a constable.

Equity. Pleadings. Trusts. Fraud. Before Judge Rice. Gwinnett Superior Court. December Adjourned Term, 1875. William F. M. Brogdon filed his bill against Gainum T. Rakestraw and Willis F. Scales, as executors of William Scales, deceased, making, in brief, the following case: In 1848 he married Necy Jane Scales, daughter of William Scales. In 1859 he purchased from one James Reeves, lot number three hundred, in DeKalb county, for $2,000 00.

<p>Pleadings. Amendments. Contracts. Novation. Charge of Court. New trial. Before Judge Hopkins. Eulton Superior Court. October Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Evidence. Before Judge Pottle. Madison Superior Court. March Term, 1876.</p> <p>Reported in the decision.</p>

<p>x. The bankrupt system of the United States acts only on the relation of debtor and creditor. It adopts the state exemption laws, in so far as they bear directly on that relation and apply to liabilities incurred before the bankruptcy; but collateral provisions in those laws, touching the relation of husband and wife, or of parent and child, are no part of the system.</p> <p>2. The bankrupt’s title to his exempted property is not impaired or affected by the adjudication or any of the subsequent proceedings. Land set apart to him by the assignee as exempt does not vest in his wife or family, unless the local lav/ be complied with in respect to platting it and recording the plat in the proper office of the county. This may be done before or after the proceeding in bankruptcy; but until done, the bankrupt may convey, free from any claim by his wife or children.</p>

<p>New trial. Stockholders. Corporations. Set-off. Judgments. 'Before Judge Knight. Lumpkin Superior Court. April Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Contracts. Consideration. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. The issue being one of pure fact, unaffected by any question of law, and the evidence being conflicting and not insufficient, the verdict must stand.</p> <p>2. Where the disputed question is, who purchased the assets of a firm and agreed to pay its debts, a writing, signed by the defendants, showing that they claimed some of the assets and took an interest in paying or securing a note given by one of themselves in compromise of one of the debts, is relevant testimony against them.</p>

<p>The claim of a creditor is barred by a discharge of the debtor in bankruptcy, although his name was not placed in the schedule, nor any notice given to him personally or by mail, the notice by publication in two newspapers having been given according to the bankrupt law.</p>

<p>1. The judgment relied upon to sustain the plea of res adjudicates, manifestly did not cover the matter in controversy, and therefore the charge of the court, based upon this view of the case, was not error.</p> <p>2. However honest an attorney may be, in the belief that money collected belonged to him, yet if, in fact, such fund was the property of his client, this honest belief is not such “ good cause ” as will relieve him from the payment of twenty per cent, per annum from the time of demand therefor.</p> <p>3. A question not made in the court below will not be passed on here.</p>

<p>Homestead. Levy and sale. Claim. Before Judge Knight. Cobb Superior Court. November Term, 1875.</p> <p>Eeported in the opinion.</p>

<p>Notary public. Seal. Attestation. Process. Judgments. Vendor and purchaser. Injunction. Receiver. Before Judge Clark. Webster County. At Chambers. June 17th, 1876.</p> <p>Reported in the opinion.</p>

<p>Criminal law. Indictment. Assault with intent to murder. New trial. Charge of Court. Before Judge Knight. Lumpkin Superior Court. April Term, 1876.</p> <p>The following report, taken in connection with the decision, will sufficiently explain the facts of this case :</p> <p>At the request of defendant’s counsel, the court charged the jury, in substance, as follows: “ If you are satisfied, from the evidence, that in a quarrel between the prosecutor’s wife and prisoner, she made threats of serious personal injury to him ; that shortly afterwards, prosecutor, in company with one Jack Ash, went in the night time to Turner’s mill, where prisoner was employed in attending to his usual business; that they approached him, one on each side, and when he asked them if anything was the matter, refused to answer but came toward him; that a quarrel ensued and prisoner, honestly acting under fears of great personal injury, struck the blow in order to save his own life or prevent great bodily harm, then these are other ‘equivalent circumstances,’ and it would not have been murder, but only voluntary manslaughter, if prosecutor had been killed.”</p> <p>To this the court added the charge set out out in the fourth head-note,and this was made one of the grounds of the motion for a new trial.</p>

<p>Railroads. Negligence. Presumption. Before Judge Rice. Gwinnett Superior Court. September Term, 1875.</p> <p>Campbell, an employee of the Atlanta and Richmond Airline Railway Company, brought case for personal injuries sustained by him. The jury returned a verdict for the plaintiff. Defendant moved for a new trial on the following, among other grounds: Because the verdict, under the evidence, was contrary to the following charges of the court:</p> <p>1st. “That in order to entitle the plaintiff to recover in this case, it must appear from the evidence that the plaintiff was himself without fault, and the onus was on the plaintiff to show by proof that he was without fault.”</p> <p>2d. “That if the injury was the result of a pure accident, and that without fault on the part of defendant, then the plaintiff would not be entitled to recover.”</p> <p>The motion was overruled, and defendant excepted.</p> <p>The other material facts will be found in the opinion.</p>

<p>Criminal Law. Indictment. Principal and security. Before Judge Knight. Milton Superior Court. March Term, 1876.</p> <p>Reported in the opinion.</p>

<p>1. An administrator cannot be allowed to violate the law in the management of an estate, and then be heard to say, in response to a rule to show cause why his letters should not be revoked, that such violation was for the benfit of the estate.</p> <p>2. In such a proceeding against an administrator it was error to charge that the jury should find for the movant if the respondent, or his securities, were likely to become insolvent. A removal on that ground is discretionary with the ordinary, and the jury, on appeal, should exercise the same discretion.</p> <p>3. An immaterial error is no ground of new trial.</p>

<p>Practice in the Superior Court. Mechanic’s lien. Lost papers. Presumptions. Before Judge Knight. Cobb Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Levy and sale. Statute of limitations. Judgments. Vendor and purchaser. Before Judge Rice. Gwinnett Superior Court. September Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Where it is sought to make property liable upon the ground that it was paid for with the money of the defendant in ft. fa., though title was taken to claimant, his father; and it was replied that the land was given by defendant to claimant prior to date of plaintiff’s judgment, it was error for the court to ignore the gift in its charge, and to confine the jury solely to the question as to who paid for the property.</p> <p>2. When an erroneous charge is alleged to have been made by the court in a bill of exceptions, and the judge certifies the same as true, and the entire charge of the court is not in the record, this court will not presume that the erroneous charge was subsequently qualified so as to obviate or cure the alleged error unless the judge shall specially certify that such was the fact.</p> <p>3. It is incompetent for a witness to state the “ idea” of parties in making a contract. He must state the facts, and let the jury draw their own conclusions.</p>

<p>1. A deed conveying land to ahusband intrust for the separate use of his wife and her children, born and to be born, clothes him with an executory trust, which does not become executed while the coverture subsists and the children are minors. And so long as the trust is executory the legal title cannot vest in the beneficiaries.</p> <p>2. Upon such a deed, the wife, suing for herself, and as the next friend of her minor children, cannot, pending the coverture, recover the land at law from a person in possession under a conveyance from the husband as trustee, without bringing the trustee in as a party, nor without alleging and proving such facts, and submitting to such terms as would entitle her, under the circumstances, to obtain a decree for the premises in a court of equity.</p> <p>3, No court can remove a trustee and appoint a successor in a proceeding to which the trustee is not a party.</p> <p>4. When the verdict is right, on the evidence and the law applicable to the case, errors in the charge of the court are immaterial.</p>

<p>1. The fact that the court directed twenty-four men, summoned as grand jurors, to retire to the. grand jury room and excuse the last man on the list, if there were twenty-four, and then organize by electing a foreman, and that the twenty-three return with the foreman to be then sworn, which was done, does not vitiate an indictment afterwards found by the sworn jury. The grand jury is not complete and organized for business until sworn.</p> <p>2. It is not error in the county judge, acting as both judge and jury, after a case is heard before dinner, and his decision withheld until after dinner, to hear additional evidence after dinner, the defendant not making it appear that he was thereby injured by the absence of witnesses or otherwise.</p> <p>3. Proof by the state that a dealer in spirituous liquors sold to a minor, and that the parent or guardian was not present and assenting at the time of sale, makes such a frima facie case that the sale is made without first obtaining authority of such parent or guardian, as to authorize a conviction in the absence of all proof to the contrary, especially when such parent re. sides in a distant county from the venue of the crime.</p> <p>4. Is' the burden of showing that the retailer did not first obtain the authority of the parent or guardian upon the state, or is it not upon the vendor to show that he first obtained it ? Quctre.</p>

<p>Forgery. Verdict. Motion in arrest of judgment. Before Judge Knight. Fannin Superior Court. May Term, 1876.</p> <p>For the facts of this case, see the decision.</p>

<p>1. When, an indorsement, as declared upon, is not in blank but in full, and there is no plea of non est factam, or other equivalent plea, and no averment that there was any want, or failure, or illegality, of consideration, or that the indorsement was made in blank, or that a collection was contemplated for the indorser’s use and not for the use of the indorsee, parol evidence to explain the indorsement or vary its legal effect, is not admissible.</p> <p>2. With proper pleadings to lay open the question, parol evidence is admissible to negative or vary the presumptive undertaking of the indorser, arising out of a blank indorsement made since the adoption of the Code, unless the rights of a bona fide holder have intervened. And it makes no difference, that since the indorser put his name on the paper, the usual terms of a full indorsement have been written over it, the indorser not having assented thereto.</p> <p>3. A bank certificate of deposit, payable to the order of the depositor, but indicating no time of payment other than can be inferred from the words, “ interest at the rate of seven per cent, on call, and ten per cent, per annum,” is payable on demand, and, therefore, due immediately; and bona fide holders are affected with the equities existing between parties prior to themselves.</p> <p>4. A verdict in favor of the only defendant who tendered an issue for trial, which issue related exclusively to his own several liability, having been returned into court and published, and, thereupon, the jury having been remanded to their room to perfect the verdict by finding, pro forma, as to the other two defendants, it was too late for the plaintiff to dismiss his whole action. After so much had transpired, the litigating defendant was entitled to have a verdict recorded for his protection.</p>

<p>1. The assignee of two judgments from different plaintiffs against the same defendant, on the older of which judgments there is a security, and on the younger there is none, must apply money raised by the sheriff from defendant’s property to the older judgment. If he apply it to the younger, the surety is discharged pro tanto.</p> <p>2. It makes no difference in principle if the assignee, being purchaser of the property sold by the sheriff, does not actually pay the money to him, but it is considered paid, and is applied to the junior judgment.</p>

<p>1. Where a general judgment creditor prays for an injunction and the appointment of a receiver, on the ground that a claim has been interposed, under a pauper affidavit, for the purpose of delay, and that, by the depreciation in value of the property, there is danger of losing his debt, but shows no special lien, there is no abuse of the discretion of the chancellor in refusing to grant such prayer.</p> <p>2. The defendant in Ji. fa. is a necessary party to such proceeding.</p>

Levy and sale. Claim. Rule. Comity. Practice in the Supreme Court. Before Judge Knight. Forsyth Superior Court. April Term, 1876. The opinion and the fifth head-note sufficiently report this case.

Judgments. Liens. Statute of limitations. Attorney. Before Judge Peeples. Pulton Superior Court. April Term, 1876. On December 21st, 1866, execution issued from Fulton superior court against one J. J. Morrison, as trustee for bis wife, .under a judgment in favor of John T. Wilson. On the 4th -of July, 1874, it was levied on a certain piece of land, by direction of D. F. Hammond, attorney at law of William R. Phillips, the assignee of Wilson.

<p>New trial. Pleadings. Injunction. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1875.</p> <p>Reported in the decision.</p>

Criminal law. Charge of Court. New trial. Before Judge Wkiq-ht. Dougherty Superior Court. April Term, 1876. John Minor was indicted for the crime of simple larceny, the particular act being the stealing of a cow, the property of one Louisa- George, On the trial, the evidence made, in brief, the following case: Prisoner owned a butcher pen, having as his partner one Israel Telfair. The cow was seen standing in their lot.

<p>Sheriff. Levy and sale. Rule. Injunction. Before Judge Hopkins. DeKalb Superior Court. September Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

Administrators and executors. Principal and agent. Evidence. Witness. Before Judge Wrigi-it. Decatur Superior Court. November Adjourned Term, 1875. The following, taken in connection with the decision, presents the facts of this case: E. R. Peabody testified thatC.

Trusts. Evidence. Before Judge Weight. Decatur Superior Court. November Adjourned Term, 1875. Babbitt and Touge, as administrators of S. Davis Touge, deceased, brought complaint against Gaudy, as trustee for Mary Gaudy, upon the following note: “ $90 00. “ Bainbridge, May 8th, 1867. “ On or before the first of December next I promise to pay to the order of S. Davis Touge $90 00, for value received.

<p>Evidence. Deeds. Levy and sale. Before Judge Hopkins. Fulton Superior Court. October Term, 1875.</p> <p>Eeported in the opinion.</p>

<p>I. Where a baggage-master upon a train, in' imminent danger of collision, jumps therefrom, it is no defense to an action for injuries sustained, that the conductor ordered him not to jump. When a collision is inevitable, such action becomes one of reasonable precaution.</p> <p>2. Such an employee assumes the risks necessarily incident to his occupation, but not such as result from the negligence of his co-employees.</p> <p>3. Every employee of a railroad will not be presumed to know the schedule, but only such as are directly concerned in the running of trains.</p> <p>4. When such an employee is shown to have received injuries resulting from gross negligence on the part of his co-employees, this court will not readily interfere with the verdict of the jury.</p>

<p>1. When two trustees deal with each other, both believing that authority exists for one to purchase from the other a full tract of land, when the authority really extends only to part of the tract, the trust estates will be tenants in common in equity; the vendee owning, when paid for, all that could be legally purchased, and the vendor the balance, it being unpaid for. After the land has greatly depreciated, partition, and not rescission, is the remedy 'for adjusting equities between the parties.</p> <p>2. When a party collaterally interested is brought in as one of the defendants to a bill for adjusting such equities, and he, answering the bill, prays equity in his own behalf, and the facts make his equity against a co-defendant apparent, the decree should settle his rights as well as those to the original transaction.</p> <p>3. In decreeing a partition the chancellor should not assume that the average value per acre of the whole tract will hold as to each acre or a given number of acres separately; the land should be divided by metes and bounds according to actual, and not average value; or if that cannot be done, it should be sold and the proceeds divided.</p> <p>4. Such amendments of the pleadings may be made as will enable all the parties to reach that equitable relief to which they are severally entitled.</p>

<p>That a juror, after being charged with a criminal case, was allowed to separate from the jury, is ground of new trial, unless it be affirmatively shown that he had no communication with any one upon the subject of the trial, either directly by conversation, or indirectly by overhearing the observation of others.</p>

<p>1. A temporary administrator cannot bind the estate by a contract to pay fees to resist the setting up of a will on an issue of devisavit vel non. His business is to collect and to take care of the effects of the deceased until permanent letters are granted, either letters testamentary or of administration, as that issue may determine; he has no authority to involve the estate by employing counsel for or against the will.</p> <p>2. Nor can a permanent administrator ratify such a contract made by the temporary administrator and the children of the deceased, so as to bind the estate, either by payment of part of the fees or otherwise; nor can he make the illegal contract of the temporary administrator a valuable consideration to support his promise to pay by coupling with it future services to the estate. He may employ counsel according to the exigencies of the estate : Code, section 2543; but such an employment must be distinct from the assumption of illegal contracts made by his temporary predecessor.</p> <p>3. The words “expenses of administration” in the statute, Code, section 2533, do not include counsel fees against a will on an issue of devisavit vel non, nor do they, of themselves, in a verdict or consent decree, include such fees; nor can the consent verdict or decree be amended on a common law declaration to recover the fees. It must be done by regular proceeding in equity or at law for that purpose, with proper parties and pleadings: 30 Georgia Reports, igi.</p> <p>4. If the administrators reside in the county giving the court jurisdiction, and all the other defendants in other counties, and there be no cause of action against the administrators, the court will not have jurisdiction of the nonresidents of the county, though a good cause of action exists and is alleged against them. The suit will be dismissed as to all, the non-residents having the right to be sued in the counties of their own residence, or that of some of them, if the contract be joint.</p>

<p>Where a record does not affirmatively show that any final judgment or decree has been rendered in the court below, there is nothing for this court to review, and the writ of error will be dismissed.</p>

Injunction. Attachment. Vendor and purchaser. Bond for titles. Before Judge Clark. Sumter Superior Court. April Term, 1876. Williams filed his bill making, in brief, this case: On September 2d, 1869, complainant sold to Emmett M. Greeson and his mother, Mary A. Stewart, a lot of land in said county, for $4,135 00.

<p>Where the conrplainant was the assignee of a mortgage, and had foreclosed and levied it upon the defendant’s land, said mortgage being for the purchase money thereof, and pending litigation in reference thereto, the parties agreed upon a settlement, to the effect that defendant should pay annually so much money, giving his notes therefor, but if he failed to pay any note, that the mortgage fi. fa. should proceed to levy and sell the land, retaining for that purpose all its priority of lien and vitality, and defendant paid one of the notes but failed to pay the next' two that were due, and complainant proceeded to advertise the land under the old levy on the fi. fa., and the defendant’s wife, by collusion with her husband, claimed .the land, and complainant filed a bill against husband and wife, alleging ithe foregoing facts, in substance, and further alleging the insolvency of .both defendants, husband and wife, and the waste of the land by the defendants, so that it would soon be so exhausted, and the timber so destroyed that the land would not near pay the purchase money, and praying .for a receiver to take charge of the land, and hold the rents, issues and profits thereof to await the final hearing of the cause; and where a receiver was appointed, and, on the trial, the defendants demurred to the bill for want of equity, and moved to vacate the appointment of the receiver, and the court overruled the demurrer, and refused the motion to vacate: Held, that there is equity in the bill, and that the court did right to overrule the demurrer; and that this court will not control the discretion of the chancellor in retaining the receiver until the final disposition of the case.</p>

<p>Mandamus. Pleadings. Waiver. ' County matters. Judgments. Before Judge Peeples. Fulton County. At Chambers. February 12th 1876.</p> <p>Reported in the decision.</p>

State. Governor. Executive warrant. Mandamus. Before Judge Peeples. Fulton Superior Court. April Term, 1876.

<p>Where the complainant brings a bill for a receiver and for the possession of land in the nature of equitable ejectment, alleging insolvency and waste, and the defendant, by answer, in the nature of a cross-bill, prays for a cancellation of the deed which he made to complainant, on the ground that the trade between the parties was the exchange of the land sued for by complainant for a tract of land in Florida, and that he was induced to make the trade by the false and fraudulent representations of the complainant, and the evidence on the question of such fraudulent representations is conflicting, and the land which complainant traded lay in the state of Florida, and defendant had never seen it, but acted upon these representations, and the Florida land turned out to be of but little value; and the jury found and decreed that the trade should be annulled and the deeds canceled, and that defendant should retain possession of his original land; and the presiding judge refused to grant a new trial:</p> <p>Held, that this court will not control the discretion of the presiding judge in overruling the motion for a new trial.</p>

Equity. Practice in the Superior Court. Jurisdiction. Before Judge Wright. Calhoun Superior Court. March Term, 1876.

<p>1. A promissory note made and due in 1&66, is within the 8th section of the limitation act of 1869, and is governed by the Code.</p> <p>2. That for a period, beginning after the statute commenced running, and terminating before the bar attached, the note was in the hands of the principal maker as an attorney at law, under his professional engagement to sue it to judgment against himself and his sureties, which engagement he violated, is no reply to a plea of the statute by such principal maker. It is better that the creditor be left to his remedy for the faithless conduct of the attorney, as such, than that the courts should make inroads upon the statute by admitting doubtful exceptions.</p>

<p>Criminal law. Burglary. Circumstantial evidence. Before Judge 'Wright. Baker Superior Court. May Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Eoads and bridges. County matters. Jurisdiction. Before Judge Weight. Dougherty Superior Court. April Term, 1876.</p> <p>Reported in the decision.'</p>