Volume 57 — Georgia Reports

<p>After a partnership has been dissolved, and one partner has agreed to pay all the joint debts, and has been compensated by the other for that agreement, if firm assets, undivided and undisposed of, and in which both have an equal interest, remain in the possession of the former, and he excludes the latter from sharing in them, the latter may maintain a bill to compel a just and proper account and division.</p>

<p>New trial. Charge of court. Before Judge Peeples. Fulton Superior Court. April Term, 1876.</p> <p>Reported- in the opinion.</p>

<p>Where a complainant alleges in his bill that execution has issued against him in favor of the executors of a deceased testator; that such executors are indebted to him, as one of the legatees of the deceased, in a sum greater than that named in the execution; that the estate is free from debt, and that said executors are insolvent:</p> <p>Held, that the chancellor erred in refusing the injunction and dismissing the bill.</p>

Landlord and tenant. Deeds. Evidence. Attornment. Before Judge Hopkins. Fulton Superior Court. October Term, 1875. Chapman sued out a warrant to dispossess Thompson, as tenant holding over of certain property.

<p>1. The lien on saw-mills under section 1985 of the Code, must be prosecuted within one year after the debt becomes due, and if the first proceeding to foreclose, made within twelve months, be defective and is dismissed, it cannot be renewed within six months thereafter, under section 2932, so as to save it, unless the renewal be also within one year after the debt falls due. Section 2932 of the Code applies only to ordinary suits and remedies, and not to extraordinary summary remedies like the foreclosure of such lien.</p> <p>2. Even if properly foreclosed, the lien made by a person in possession, who was neither the true owner, nor his agent, nor his lessee, would not be good against the true owner; and when the facts show that the mill had been sold by agreement, after bill in equity filed by the true owner to enjoin the enforcement of the lien, and the money raised was to stand in the place of the mill itself, and to be distributed according to the equities of the several parties, and that the person in possession of the mill, and who had given the lien, took possession with the understandimg that he was to have no title until he had paid for it, the true owner of the mill would take the money in preference to the holder of the lien.</p>

<p>A receiver cannot be sued for the assets placed in bis bands, or be disturbed in tbe possession or management thereof, without first obtaining leave of the appointing court.</p>

<p>Rule nisi. Sheriff. Levy and sale. Attachment. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1876.</p> <p>Reported in the opinion.</p>

Judgments. Practice in the Supreme Court. Before Judge Clark. City Court of Atlanta. June Term, 1876. The following, taken in connection with the decision, sufficiently reports this case: The bill of exceptions had two entries upon it. The first was “Filed in office June 10, 1876,” and was, without any signature. The second was as follows: “This bill of exceptions this day withdrawn by attorneys of Lambert, and refiled — June 12, 1876.

<p>Non-suit. Practice in the Superior Court. Negligence. Before Judge Hopkins. Fulton Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>An indictment for simple larceny in stealing hogs is sufficiently certain in describing them, if they be so described as to be identified by the owner.</p>

<p>Liens. Landlord and tenant. Distress warrant. Before Judge Knight. Cobb Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Equity. Injunction. Partition. Tenants in common. Mortgages. Liens. Before Judge Wright. Decatur Superior Court. May Term, 1876.</p> <p>Eeported in the decision'.</p>

New trial. Evidence. Partnership. Notice. Charge of Court. Before Judge Peeples. Fulton Superior Court. October Term, 1875. Long & Brother brought complaint against the Atlanta Furniture Manufacturing Company, a partnership alleged to be composed of J. M. Willis and E. W. Holland, on two drafts accepted by the firm. The case was dismissed as to Willis, by consent, he having been discharged in bankruptcy. Holland pleaded that he was not a partner.

<p>1. If an attorney at law unfairly represents the testimony, and draws erroneous conclusions therefrom, the attention of the court should be called to such irregularity, and.its judgment obtained thereon, otherwise this court has no jurisdiction to review such conduct.</p> <p>2. The verdict is supported by the evidence.</p>

<p>Equity will relieve against a judgment which was obtained by inducing the defendants thereto to withdraw an equitable plea they had filed in the case, by a promise of the plaintiff that if such plea were withdrawn he would do the equity set-up in the plea, and would enter into writing to that effect, all of which he failed to do; and this court will not control the discretion of the presiding judge in granting an injunction until the case can be fully heard on the merits, especially when the complainants’ offer to do equity on their part by paying up their portion of the judgment, and when the injunction is granted on that condition.</p>

Verdict. Decree. Before Judge Wjright. DoughertySuperior Court. April Term, 1876. Hartwell, as executor of James C. Solomon, deceased, brought suit against Tift, administrator of T. M. Nelson, deceased, on a promissory note made by Nelson to R. F. Lyon, or bearer. The amount of the note was $800 00; but on it was indorsed a credit of $500 00.

<p>1. The successor of the judge who presided at the trial may authenticate to this court the grounds taken before himself in motion for a new trial.</p> <p>2. A press letter book is not original but secondary evidence of the contents of the letters.</p> <p>3. If the charge, as a whole, is not inapplicable, the inapplicability of some parts of it will not avail on a general objection to it as a whole.</p> <p>4. When it is desired that the charge should be moré definite and specific as to a certain branch of the case, attention should be called thereto by a proper request.</p> <p>5. Delivery to a carrier according to the usage of trade, will be delivery to a purchaser of goods who orders them to be shipped, but specifies no particular carrier or class of carriers, and after notice of shipment, makes no objection to the carrier selected.</p> <p>: 6. After a purchaser has retained the goods for nearly two months, without giving notice of his rejection of them as not coming up to the description embraced in his order, his appropriation of a part by a sale thereof will be an appropriation of the whole, so far as to subject him to pay for them at their veal v.alue, not exceeding the contract price.</p> <p>7. Letters which might have been put in evidence at the trial, but were not, will not be considered on a motion for new trial.</p> <p>8. When material facts were known to the party at the trial, and he was a competent witness to prove them, but .made no allusion to them in his testimony, and when he might, also, by the use of due diligence, have discovered another witness who knew the same facts, the discovery of this other witness, after the trial, will be no cause for a new trial.</p> <p>9. The verdict was not contrary to evidence.</p>

<p>I. The sale of land by virtue of execution issued on a judgment junior to a mortgage, not foreclosed, conveys to the purchaser only the property sold, which, in this state, the equity of redemption, or its equivalent, which is the estate in the land subject to the mortgage debt, and such sale divests the lien of a judgment older than the mortgage, only upon that interest or estate in the land which is sold.</p> <p>2. If there be not money enough raised from the sale of this equity of redemption, or interest in the land subject to the mortgage, to pay off the judgment which is older than the mortgage, an execution issued upon such older judgment may be levied upon the residue of the estate in the land, and being older than the mortgage, it will sell the land free from its incumbrance, and the title of the purchaser will be good against the mortgage.</p>

<p>Two judgments were rendered in the inferior court of Quitman county at the February term, 1865, in favor of Crawford against Rutherford. More than ten years afterwards (the inferior court having in the meantime been abolished) certain parties filed their petition m the superior court of said county, alleging that they were the executors of one Harrison to whom Crawford had assigned the above claims for a valuable consideration, that the minutes of the inferior court failed to show that any jury had been legally impaneled when the verdicts were rendered, and praying that the judgments founded thereon be declared void, and the cases entered on the docket of the superior court in the name of Crawford for the use of petitioners. No reason was assigned for the delay in making such petition:</p> <p>Held, that the want of diligence on the part of plaintiffs, and the lapse of time, unexplained, constituted an equitable bar to the reinstatement of the cases.</p>

<p>Pleadings. Former recovery. Practice in the Superior Court. Before Judge Kiddoo. Terrell Superior Court. May Term, 1876.</p> <p>A report of this case is unnecessary.</p>

Principal and agent. Contracts. Corporations. Notice. New trial. Before Judge Peeples. Fulton Superior Court. October Term, 1875. This case was tried before Judge Hopkins. The motion for a new trial was heard by his successor, Judge Peeples. Reported in the opinion.

<p>1. An indictment containing a count for robbery, and one for assault and battery, is demurrable.</p> <p>2. It was error in the court to charge the jury that “ this case has already consumed too much unnecessary time. I have allowed this prisoner great latitude in introducing evidence at unseasonable times, in order that he might show, if he could, his innocence.”</p>

Execution. Principal and surety. Practice in the Superior Court. Levy and sale. Jurisdiction. Illegality. Before Judge Hall. Calhoun Superior Court. September Adjourned Term, 1875. Susannah Shepperd brought suit against Samuel C. Saxon, as principal, and William Manry and Bedding Strickland, as securities, on a bond for the faithful accounting by the said Saxon as trustee for the plaintiff.

<p>Administrators and executors. Decree. Lien. Equity. Claim's. Before Judge Buchanan. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Where executors filed their bill for direction in the administration of their testator’s estate, praying that the creditors be enjoined from proceeding to collect their debts, in the county of the residence of a debtor to the estate who had been garnished by the creditors, against whom no substantial relief was prayed, such residence did not give the superior court of that 1 county jurisdiction.</p>

<p>I. Where the proprietor of the I ,anier House rented “ the saloon or bar-room and fixtures” thereof from 1st of October, 1873, for one year, and contracted that the tenant “ shall have the exclusive privilege of selling wines, liquors of all all kinds, and cigars and tobacco, in said Lanier House,” and suit was brought on the rent-notes, and the tenant pleaded that he did not have the exclusive privilege of so selling, because another bar-room, rented to Engelke, was kept in the Lanier House, the question whether said latter bar-room is in the Lanier House, in the sense of the contract as understood by the parties, is for the jury; and a charge that “if Dub did not rent to Engelke, and had no control over the room occupied by him as a bar-room, even if the said Engelke did sell wines, etc., it was no breach of plaintiff’s contract and will not avail the defendant,” is too broad; the true question 'being, not whether Dub rented to Engelke but whether Harris, when he rented from Dub the bar-room he occupied, understood the words “Lanier House” in the contract, to include the whole building called Lanier House, embracing Engelke’s bar-room, or only the hotel called by that name, and was authorized so to understand its meaning from what passed between Dub and Harris when the contract was made. The fact that Dub did not rent Engelke’s bar-room and could not therefore control it, is a very strong circumstance that he did not contract, and that Harris did not understand him to contract, chat Engelke should not sell wines, etc., therein, but by itself it is not conclusive.</p> <p>2. Testimony upon the point what the Lanier House ordinarily meant and included in common parlance, whether the entire building or only the hotel, was legitimate to illustrate the meaning which the parties attached to it in the contract.</p> <p>3. The fact that the defendant quit the bar-room in March, offering the control to plaintiff, and that the plaintiff sent for the keys “sometime” in August, and never tendered them back to defendant, was a presumption of the possession and dominion in August, and the rent should cease from that date, though plaintiff swore that he only took possession to paint the counter.</p> <p>4. Where, notwithstanding such error in the charge of the court, the evidence, as a whole, satisfies this court that the verdict on the main question for the plaintiff was right, and would be and ought to be the same if tried over again, except for the short time from August to October, the judgment will be affirmed if the plaintiff will write off the rent for the last month > if not, a new trial must be granted.</p>

<p>The form of judgment prescribed where no issuable defense on oath is filed, is merely directory, and the omission of the words “ on oath ” from the recitals therein does not invalidate the judgment.</p>

Contracts. Charge of Court. Partnership. Before Judge Crawford. Marion Superior Court. April Term, 1876. Jowers brought complaint against Baker. The declaration presented the following facts: In September, 1871, these parties entered into a verbal agreement or contract for the purpose of conducting a saw-mill business.

<p>Admissions. Evidence. Husband and wife. New trial. Before Judge Hall. Spalding Superior Court. August Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Sales. Damages. Before Judge Crawford. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the decision.</p>

<p>New trial. Partnership. Before Judge Crawford. Taylor Superior Court. April Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Landlord and tenant. Distress warrant. Before Judge Ceark. Lee Superior Court. March Term, 1876.</p> <p>Reported in the decision.</p>

<p>1. Is a corporation, whose charter does not confer the privilege of issuing its bills to circulate as money, a bank, in the sense of the act of 1857, and of the provisions in the first Code on the subject of banks and banking, (sections 1421, 1423,) so as to make all contracts for the loan of money at a greater rate of interest than seven per cent, per annum null and void ? Queers ?</p> <p>2. By the English law the entire contract, if tainted with usury, was void, yet the money actually borrowed, with the legal interest thereon, was held to be a good consideration to support a new promise to pay the old debt purged of the usury. So, though this corporation were such a bank of issue as that a usurious contract would be absolutely void if made before the act of 1873, (Code, sections 2051,1474,) yet, after the act abolishing all laws against usury, and pending the period when there was no law prohibiting it, the money actually borrowed, with legal interest from the time borrowed, is a good consideration to support a new promise then made to pay at least such sum actually borrowed and the legal interest due thereon.</p> <p>3. In such case, a plea that the whole consideration on which the new promise was made was illegal, is bhd, and should be stricken on demurrer, unless amended; but when the entire pleadings and facts show that the consideration is in part clearly legal, and in part void, and the consideration is severable, though the judgment striking the plea will be affirmed, yet this court will direct that defendant have leave to amend, if so advised, so as to plead inadequacy of consideration as to the usury.</p>

<p>Practice in the Supi’eme Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

Criminal law. Evidence. Charge of court. Before Judge Wright. Dougherty Superior Court. April Term, 1876. Moughon was placed upon trial for the offense of assault with intent to murder, alleged to have been committed upon the person of one Hopkins Tillory, on August 10th, 1875. The defendant pleaded not guilty.

<p>1. One of the grand jury named in the bill of indictment, or special presentment, cannot impeach his own finding; therefore the court will not consider his testimony either that there was no bill or presentment before the jury when the witnesses were sworn, or that the oath administered to the witnesses was not that oath which is prescribed by law.</p> <p>2. Whilst all the charges in the bill of indictment constituting all the ingredients of the crime, must be proven to the satisfaction of the jury, yet the evidence may be circumstantial as well as direct; therefore the charge that the assault was made with a knife as the weapon likely to produce death, was sufficiently proven by showing the wound, and how it was made, and the sensation of the person cut.</p> <p>3. If there be sufficient evidence to authorize the verdict, and the presiding judge is satisfied therewith, and there is no error of law committed, this court will not interfere.</p>

Evidence. Deeds. Vendor and purchaser. Servitude. Water. Prescription. Charge of Court. New trial. Before Judge Hopkins. DeKalb Superior Court. September Adjourned Term, 1875. Maguire brought two actions of case against Baker and Humphries for damages to land in DeKalb county, located on No Business Creek, caused by the overflow of water thereupon, resulting from a mill-dam on Yellow River.

<p>1. The erection of an extensive iron bridge in lieu of a wooden one, on a street, over a wide railroad cut, is an important improvement, beneficial to the public, and justifying the disuse of the street at the point to be bridged, for a length of time discretionary with the municipal authorities, so that their discretion be not grossly abused.'</p> <p>2. The new bridge being one hundred and forty feet in length, sixty feet wide, and costing $14,000 00, there was no abuse of discretion in allowing the chasm in the street to remain unbridged for four months after the wooden bridge was removed, and in consuming that much time in having the new bridge put in its place.</p> <p>3. An adjacent property-holder whose rents were diminished twenty-five per cent, during the time the bridge was down, has no cause of action against the city for damages.</p>

<p>I. If a case turn.entirely on the question whether plaintiff or one of the defendants is to be believed, and if the jury believe the plaintiff, and if his version of the transaction sustain the legality and equity of the verdict, as well as the sufficiency of the evidence to support the verdict, this court will not control the discretion of the presiding judge in refusing a new trial on those grounds.</p> <p>2. If defendant’s theory of the case be true, that the transaction was a bailment and not a loan, and that the plaintiff agreed that if confederate money which he collected proved valueless at the end of the war, then the loss should be plaintiff’s, it is not necessary that defendant should tender the money after the war closed; it is enough that he prove, in any way, that the money died on his hands; therefore a charge that a tender, after the war, had nothing to do with the case did not hurt the defendant, the charge being right in other respects.</p> <p>3. A contract, whether for the loan or bailment of confederate currency, made on the 24th of December, 1864, is within the ordinance of 1863, authorizing the jury to settle equities between the parties, growing out of confederate contracts, and the charge that the case is within the ordinance, is right.</p> <p>4. The charge that if the jury found for the plaintiff, they should be governed by Barber’s tables, to be found in 34 Georgia Reports, in estimating the amount due him in currency, did not hurt the defendants, said tables being in evidence without objection.</p> <p>5. A new trial will not be granted on newly discovered evidence which pertains entirely to an agreement of counsel, not in writing, and which the original counsel of defendants neglected to communicate to his successors, and which they neglected to ascertain when he went upon the bench.</p>

<p>Equity. Mortgage. Statute of limitations. Before Judge Wright. Upson Superior Court. November Adjourned Term, 1875.</p> <p>Reported in the decision.</p>

<p>New trial. Before Judge Clark. iCumter Superior Court.. October Adjourned Term, 1875.</p> <p>Report unnecessary.</p>

<p>1. In a suit for damages for breach of an agreement to buy lands and pay for the open lands all the oats that could be raised thereon in 1874 — the purchaser to sow, harvest and deliver them to the seller — the seller should not be permitted to testify to the jury that if the purchaser had complied with his contract, “I would have gotten for my land $25,000 00, could not sell it now for $15,000 00, and lost $10,000 00 by Gilbert’s not complying with his contract.” He might, after stating the facts on which his opinion was based, such as his experience in oat cropping, his acquaintance with this land and the cultivation thereof in oats, have given his opinion of how much oats the open land would have produced in bulk, how much per acre, how much, a good oat year, or an indifferent or a bad one, what sort of year 1874 was for oats, how much open land there was on his place, and what the price of oats was in 1874; and then the jury should have been left to estimate the damage from the facts on which he relied and which he detailed before them.</p> <p>2. In such a suit, it is also error to permit the plaintiff to testify that he could have cleared $600 00 over and above expenses, in cutting and hauling wood from the land, if he had not been prevented from hauling by said contract.</p> <p>3. In such a suit, when plaintiff had been permitted to testify that defendant was well acquainted with the lands sold, it was error in the court not to allow defendant to contradict such testimony, on the ground that the testi- " mony was irrelevant, and still to refuse to strike it and rule it out as irrelevant on the motion of defendant, because he had not objected to it when offered; the effect of which was to suffer the testimony to remain as evidence before the jury, and yet not to allow it to be contradicted by other evidence. It should have been either altogether withdrawn from the jury, or the defendant should have been permitted to explain or contradict it.</p> <p>4. Whilst it is true that when both the parlies have equal opportunity to examine the lands bargained for, a court of equity will not relieve the purchaser on account of a misrepresentation ,of the seller of facts which were open to inspection, yet when a promissór to buy alleges in his equitable plea against the seller’s suit for damages" for breach of his written agreement to buy, that he signed the agreement hurriedly and without an examination of the land, and was induced to do so by a false and fraudulent promise of the seller to go over the land with him before a consummation of the trade by delivery of the possession of the land, and show him all of it, that one-half of the eight hundred acres was open land and fit for cultivation, and the woodland was well -timbered for rails, and that he would find it all just as he had represented it, and afterwards repeatedly promised that if he did not so find it, then the writing should be considered null and void, and that the seller utterly failed and refused to go over the land and point it out to him, and when he went himself alone, as he was forced to do by the false promise of the seller, he found the said representations untrue in respect to the rail timber, the open land, and its fitness for cultivation in oats, without great expense:</p> <p>Held, that the allegations of fraud in procuring the promissor’s signature to the agreement set out in the plea, are sufficient to make a case for equitable relief, and the equitable plea to that effect should not have been stricken on demurrer.</p> <p>5. When the contract of sale was to the effect, that Cherry agreed to sell to Gilbert about eight hundred acres of land, part wood and part open, on the terms that Gilbert should sow the open lands in oats, and harvest them, and deliver them in Macon to Cherry, in consideration of which Cherry agreed to convey to Gilbert good title for the open land so cultivated, “ and also for all the balance of the eight hundred acres, provided Gilbert paid him for each acre thereof the market value of the oats made on each acre of the land so cultivated, that is to say, the value of the oats so raised on an average acre of said land so sown in oats, is to be the price said Gilbert is to pay per acre for said remainder of said land; and if said Gilbert does not agree to give that price so ascertained for said land, then he has the option of sowing said land in oats for the next ensuing year, and to pay the value of said remainder of said land, ascertained as aforesaid, in the oats to be so raised and grown in the second crop year, the first crop year ending in the spring of 1874;” title in fee simple to all the lands tobe made by Cherry to Gilbert on his compliance with the above, the value of the oats to be the market value thereof in Macon, the actual number of acres to be ascertained thereafter, the open lands agreed to be sown in oats to be such as “can be reasonbly prepared and put in oats, in the judgment of said Gilbert,” and when this contract was dated the 4th of July, 1873, and it did not appear in the writing when the land was to be delivered to Gilbert, except inferentially, in time to sow the oats, and when it appeared from parol testimony that the lands were rented and could not be delivered until the growing crop was gathered:</p> <p>Held jst. That a plea alleging, in effect, that the scrivener who drew the writing had, either by mistake or by the fraud of Cherry, said scrivener being the counsel and attorney of the said Cherry, failed to set out the true contract clearly in the written agreement, which contract was to give Gilbert the option of paying for all the balance of the land, other than that sown in oats the first year, in oats raised upon the same land the second year, so as to make two crops of oats on the open land the entire price of the whole eight hundred acres, if Gilbert preferred it; and praying that the writing be reformed, and corrected so as to be made to speak the true contract, is a plea which contains substantial grounds for equitable relief, and should not have been stricken.</p> <p>Held 2d. That a plea alleging, in effect, that the land bargained was encum-. bered by a large mortgage, not known at the time he signed the written agreement to defendant, for money borrowed by the plaintiff, which mortgage is still unpaid, and that plaintiff, Cherry, had deceived Gilbert, the defendant, by inducing him to believe, at the time he signed the agreement, that the land was free from encumbrance and that he could make good fee simple title thereto, and that-plaintiff was then and is still greatly embarrassed and suits for large sums are pending against him in both the federal and state courts, and that Cherry could not have made Gilbert good title to the land, if Gilbert had taken possession thereof, and sowed, reaped and delivered the’oats, is also a plea which contains substantial grounds for equitable relief, and should not have been stricken.</p> <p>Held 3d. That the entire contract is not an actual sale of the land, consummated by the delivery of possession and executed either by deed or bond for titles, but an agreement to sell in consideration of certain things to be done by the vendee in the future, involving, necessarily, risk and expense on his part, which he was to incur as a condition-precedent to the acquisition of any title to any part of the lands agreed tobe sold, uncertain and speculative in character and consideration, unusual and ambiguous in stipulations and terms, and eminently proper to be be explained by parol evidence of surrounding circumstances in respect to the true intention of the parties; and any misrepresentation or concealment of one party, or failure to do what was agreed to be done if the other would sign the agreement, should be closely scanned by a court of equity, and if the facts proved fraud or deceit, in the opinion of the jury, in the procurement of the signature to the writing, it should be set aside as wholly null and void, or reformed so as to speak the true contract agreed upon.</p> <p>Held 4th. That if the jury should believe that defendant, without sufficient cause, arising from the misrepresentation, or concealment, or fraud of the plaintiff, failed to perform his part of the contract, then neither the failure to rent the land, nor the speculative profits thereof, nor of “ the wood crop” which might have been cleared thereon, should enter into the measure of damages for his breach of the contract; but the true measure thereof for the failure to buy, would be the difference between the value of the land at the price agreed upon, to be ascertained from the true intent and meaning of the written agreement to buy, and the depreciated value at the time that the contract to buy was broken, and notiee thereof given to the seller, so that the seller could have sold to another.</p>

<p>Husband and wife. Prescription. Before Judge Hall. Rockdale Superior Court. April Term, 1876.</p> <p>Reported in the decision.</p>

Judgments. Administrators and executors. Amendment. Principal and security. Before Judge Clark. Sumter Superior Court. April Term, 1876. Leonard brought complaint against Pryor and another, as administrators of Benjamin G. Pettie, deceased, principal, and Joseph J. Collier, security, upon a promissory note.

<p>1. Where an indorser of a promissory note stipulates with the payee thereof, that he indorses the same with the distinct understanding that the payee is not to proceed against him until he has first exhausted all the property of the principal, which is covered by a mortgage made by the principal to the payee at the same time that the note is made and indorsed, the said stipulation being in writing, though not on the note, and the contest being between the payee of the note and the indorser:</p> <p>Held, that the payee of the note cannot proceed by suit against such indorser until he has first exhausted the property covered by the mortgage, and a plea setting forth the above facts and sustained by the proof, will suspend the plaintiff’s right to sue the indorser until the mortgaged property has been exhausted.</p> <p>2. A stipulation not to proceed against a party is an agreement not to, sue.</p> <p>3. Notice to sue the principal given by the indorser, even if in legal form, is not notice to sue the indorser himself, and does not estop the indorser from setting up the defense that he is liable only after the mortgaged property is exhausted.</p>

<p>Where exceptions to an auditor’s report are based upon questions of fact, and no evidence is introduced in support thereof, the report will be sustained. Aliter, if the exceptions turn exclusively on questions of law.</p>

<p>Practice in theSuperior Court. Non-suit. Pleadings. New trial. Before Judge Clark. Webster Superior Court. March Term, 1876.</p> <p>Reported in the decision.</p>

Set-off. Evidence. Before Judge Hill. Bibb Superior Cofirt. October Term, 1874. The following, taken in connection with the opinion, sufficiently reports this case: Teal sued Petit for $98 00 due him for labor, as a carpenter. Defendant’s plea admitted $25 00 of this indebtedness, but alleged that the rest of the work was so badly done as to be valueless.

<p>Trover. Administrators and executors. Executions. Before Judge Crawford.' Chattahoochee Superior Court. March Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Certiorari. 'Before Judge Clark. Sumter Superior Court. April Term, 1876.</p> <p>Reported in the decision.</p>

<p>1. That a request to charge, set out in the motion for a new trial, was made and denied, must be verified by the judge in the bill of exceptions, or elsewhere in the record, or this court will not, wherq the new trial has been refused below, entertain that ground of the motion, over the objection of opposing counsel, presented at the proper time.</p> <p>2. The making of any request to charge is not sufficiently verified in the present case.</p> <p>3. The jury had evidence before them to warrant the verdict.</p>

<p>Judgments. Levy and sale. Statute of Limitations. Before Judge Kiddoo. Randolph Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Where a justice of the peace, in issuing an attachment, neglects to add to his signature words or letters denoting his office, 'they may be added on motion, after proving that such officer was duly authorized to issue attachments, that he had signed in his official capacity, and had omitted the words of office accidentally.</p>

<p>1. Demand for trial is not cause for discharge; unless at the term when the demand was made and at the next succeeding term, there were juries impaneled and qualified to try the prisoner.</p> <p>2. That there were such juries at both- terms must appear to the supreme court affirmatively, in order for it to reverse a judgment of the superior court denying the discharge.</p> <p>3. A mere recital in a motion for discharge presented by counsel, and which the superior court refused to grant, with no verification of the recital in the bill of exceptions or elsewhere in the record, is not sufficient evidence that there was a jury at the second of the two terms.</p> <p>4. Where the bill of exceptions states that the indictmenfs on which trial was demanded, were found at the April term, 1875, and the demand itself, as copied in the record, shows that they were found at April term, 1874, the term at which the demand was made, the record, and not the bill of excep" tions, will be considered as giving the true date of the finding.</p>

<p>1. A deed dated 20th of July, 1821, though improperly admitted to probate and record, which the attorney who brought the suit obtained either from the plaintiff or the agent of the plaintiff, is admissible in evidence as an ancient deed more than thirty years old, the appearance being genuine, and the attestation and probate being right except proof of delivery.</p> <p>2. An exemplified copy of a will from the ordinary’s office is presumptive proof that it was properly probated, otherwise it could not have been recorded : Code, section 3822. Whether Mord. Myers was an abbreviation of Mordecai Myers was a question for the jury; and when the devisee and the executrix are the same person, and the demise is in the name of the devisee, the assent of the executrix to the legacy -will be presumed; and the will, as a muniment of title, should be admitted in evidence, though objected to on the above grounds, and though letters testamentary were not offered in evidence, it being certified by the ordinary that such letters had been issued.</p> <p>3. The instruction of the court to the jury to strike out certain years, naming them, from the defendant’s adverse possession, is erroneous, as it withdraws from the jury the trial of the fact of possession during those year's, and expresses an opinion thereon; but if the entire proof shows beyond any dispute that defendant never was in possession seven continuous years, he was not hurt by the charge, and a new trial will not be granted for such charge, because it could not have affected the verdict.</p> <p>4. The record of a derivative or intermediate deed in a chain of title within time, will not cure the failure to record in time the original deed, or first deed from the stale’s grantee, so as lo affect title in another from the same grantee of the state, acquired before such record of the intermediate deed.</p> <p>5. After a lot of land is drawn, and before the grant from the state issues, the equitable title thereof is in the drawer, and the legal title is in the state for the use of the drawer, on his payment of the grant-fee; and as this equitable title is vendible — transferable—when it is sold, the legal title in the state, which was for the use of the drawer, became title for the use of his vendee, on the grant-fee being paid; therefore, when the grant issued to the drawer, the legal title which would have passed into the drawer if he had not sold his equitable estate, passes through him into his vendee by virtue of the statute of uses, and clothes the vendee with the complete title the moment the grant is issued. Such title being thus complete in the vendee, any subsequent deed made by the drawer after the grant, can convey no title, all title legal and equitable having passed out of the drawer to his first vendee; hence a deed made before grant but after draw, will authorize recovery in ejectment over any deed made by the drawer after the grant.</p> <p>6. Though a tenant be put in possession of land with the understanding that he shall hold it a certain time, yet if he abandon the possession and leave the land vacant, the understanding that he was to hold possession will not keep the possession continuous.</p> <p>7. The verdict was authorized by the law and the evidence.</p>

<p>Administrators and executors. Executions. Judgments.* Presumptions. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1875.</p> <p>Eeported in the decision.</p>

<p>1. In answer to a rule against a sheriff for neglect of duty in levying upon and selling property, he cannot set up that he was served by defendant with an affidavit of illegality which was predicated solely on his own or his deputy’s neglect of duty. No man can take advantage of his own wrong, or that of those under his authority and subject to his control.</p> <p>2. In answer to rule, the sheriff may show that the Ji. fa. has been paid off in whole or in part, and thereby that the plaintiff has not been injured by his default to the extent claimed, and it is error to strike such answer on demurrer, and make the rule absolute for the whole sum apparently due on the face of the fi. fa.</p> <p>3. While a rule nisi calling upon the sheriff to show cause why he should not be attached for contempt in not paying over the sum found due on the rule absolute, is necessary before an order for attachment against him shall issue, yet the rule nisi calling upon him to show cause why he does not pay the money, may also contain in itself a rule nisi for attachment. The essential thing is that the sheriff shall not be attached and imprisoned without an opportunity to be heard.</p>

<p>1. Though the evidence be conflicting, if it is sufficient to support the verdict, this court will not control the discretion of the court below in refusing a new trial on the ground that the verdict was contráry to the law and evidence.</p> <p>2. Newly discovered evidence which might have been produced at the trial by the exercise of proper diligence, is no ground for new trial.</p>

<p>Illegality. Judgments. Taxes. Set-off. Before Judge Clark. Sumter Superior Court'. April Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Equity. Verdict. Interest. New trial. Before Judge Hall. Rockdale Superior Court. April Term, 1876.</p> <p>Reported in the decision. .</p>

<p>1. An indictment for simple larceny in stealing two hogs at the same time and place, though alleging that one is the property of one person, and the other of another, covers but one transaction, and charges but one offense, and judgment thereon will not be arrested.</p> <p>2. Proof that defendant stole one of the hogs is sufficient to convict under such an indictment.</p>

<p>A title obtained by fraud, though voidable in the vendee, will be protected in a bona fide purchaser from such vendee, without notice. The evidence of notice of the fraud was not sufficient.</p>

<p>Arbitrament and award. Before Judge Clark. Lee Superior Court. November Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Where the effect of the judgment of this court is, that no legal suits had ever been commenced, or legal judgments rendered, on the notes in controversy, such prior proceedings cannot be pleaded as former recovery, or pendency of former suit, to subsequent actions on such notes, even though commenced before the remittitur from this court was made the judgment of the court below.</p> <p>2. An appeal must not only be frivolous, but intended for delay only, to authorize a judgment for twenty per cent, damages against the appellant.</p>

<p>x. Where a deed to land is made on Sunday, and the money paid, the possession of the land having been previously given to the vendee, the law will leave the parties where it finds them. Both being in pari delicto, although the contract consummated on Sunday be illegal, the courts will not interfere.</p> <p>2. Payment in Confederate money, made in April, 1865, both parties being ignorant of the surrender of the Confederates, was good.</p>

Promissory notes. Contracts. Evidence. Estoppel. Homestead. Before Judge Pate. Dooly Superior Court. March Term, 1876. On March 15th, 1875, judgment by default was rendered in favor of D. C. Drake against Elijah Bush, on a promissory note of which the latter was maker and the former payee, made in 1872. Execution thereupon issued, and was levied on a certain tract of land, being the half of land lot number fifty-one, in the seventh district of said county.

<p>1. Where the main current of the evidence shows that defendant shot deceased twice with a pistol from an adjoining room, through the door, the room whence he shot being dark and the other lighted up, several feet being between the two; and that deceased, if armed at all, only had a common knife, and was not near enough defendant to use the knife upon him, and that deceased was not the assailant, and that defendant had made no effort, in good faith, to decline the combat; and where it was further proved that several days before, defendant had threatened to take the life of deceased :</p> <p>Held, that the evidence would have authorized a verdict for murder; and where the verdict was only voluntary manslaughter, and the presiding judge refused a new trial, this court will not interfere.</p> <p>2. Evidence of threats made four or five days before the homicide, is admissible to show malice.</p> <p>3. Defendant cannot object to testimony of what transpired the same night at an adjoining village, when he himself first introduced it, though afterwards it be made to work against him.</p> <p>4. Where a difficulty commenced at one groggery and terminated at another, : the same night in the same village, all that transpired at both groggeries is admissible as res gesta, though some interval of time may have intervened between the beginning and end of the rencounter.</p> <p>5. It is not error in the court, in charging the jury on the subject of reasonable doubts, to tell them that they should reconcile all the testimony if possible, and if not, to believe those whom they thought most entitled to credit. The credibility of witnesses is matter peculiarly within the province of the jury.</p> <p>6. In a contest, or personal rencounter, between two persons, where defendant set up the plea of acting in self-defense, sections 4331 and 4333 of the Code should be construed together; and it must not only appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge, but it must also appear that the slayer thought and believed, and had good reason to think and believe, that the danger; was so urgent and pressing, at the time of the killing, that in order to save his own life, or prevent a felony on his person, the killing of the other was absolutely necessary; and it must appear also, either that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.</p>

Sheriff. Levy and sale. Pleadings. Before Judge Wright. Baker Superior Court. May Term, 1876. Three judgments were obtained in Baker superior court ¡against one Samuel P. Davis, by Reid and others. Executions issued thereon, and were placed in the hands of P. D. Davis, sheriff, to be levied. He returned them with entries •of mulla bona, stating that the only property found in possession of defendant in fi. fa. was trust property, and not subject to levy for his debts.

<p>j. The execution must follow the judgment, and not following it either in respect to the parties or the amount, it is an illegal process; if amended, the levy falls.</p> <p>2. This case, as now presented, was substantially decided by this court when here before.</p>

<p>In response to this motion, counsel for plaintiffs, as a part of his argument, submitted numerous affidavits which, in substance, showed that one of plaintiffs’ attorneys resided in Lexington and one in Hartwell; that the attorney residing in the former place, immediately upon receiving the bill of exceptions from the judge, who resided in Warrenton, forwarded it by mail to the clerk of the superior court of Hart county, where the case was tried ; that the original record was forwarded by express ; that the attorney resident in Hart-well, upon being informed that the bill of exceptions had been forwarded by mail to the clerk, asked that officer for the papers in the ease for the purpose of perfecting service'; that he was at one time informed that the papers had not yet come, and at another that they were in the express office at Athens; that, as a matter of fact, at the times these various inquiries were made, the bill of exceptions was of file in the clerk’s office, and the original record was in the possession of the express company at Athens; that after it was too late to perfect service within the time prescribed by law, in response to another demand, the clerk handed the original bill of exceptions to plaintiffs7 attorney, who immediately served a copy thereof upon opposite counsel.</p>

“Macon, Ga:, January 31st, 1876. “During the entire month of December I heard nothing further in regard to said motion for new trial, and supposed it had been abandoned. Some time about the middle of January I informed Mr. Bartlett, of counsel for complainants, that I supposed the motion had been abandoned.

<p>Contracts. Promissory notes. Statute of limitations. Before Judge Buchanan. Muscogee Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>Judgments. Trusts. Before Judge Tompkins. Richmond Superior Court. October Adjourned Term, 1875.</p> <p>Reported in the decision.</p>

<p>Mortgage. Prescription. Registry. Notice. Deeds. "Vendor and purchaser. Before Judge Wright. Baker Superior Court. May Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Constitutional law. Jury. United States Courts. Before Judge McCutohen. Bartow Superior Court. January Term, 1876.</p> <p>Reported in the decision.</p>

<p>Husband and wife. Trusts. Deeds. Minors. New trial. Before Judge Peeples. Fulton Superior Court. October Term, 1875.</p> <p>. Reported in the opinion.</p>

<p>Guardian and ward. Statute of limitations. New trial. Before Judge McCutchen. Floyd Superior Court. January Adjourned Term, 1876.</p> <p>Reported in the decision.</p>

<p>Wills. Estates. Trusts. Levy and sale. Before Judge Bartlett. Morgan Superior Court. March Term, .1876.</p> <p>Reported in the opinion.</p>

Execution. Levy and sale. Before Judge Hill. Houston Superior Court. May Term, 1876. To the report in the decision it is only necessary to add the following statement: George H. White and his father, John.G. White, lived together on a certain plantation ; each spoke of it as his, and the evidence as to which, was the real owner was conflicting.

<p>Trover. Levy and sale. Exemption. Before Judge Buchanan. Carroll Superior Court. April Term, 1876.</p> <p>Reported in the opinion.</p>

<p>The by-laws of a masonic insurance company provided that the death of a member was to be made known to the company by the affidavit of two respectable witnesses, the genuineness of which should be vouched for by the secretary of the lodge nearest the place of the decease, in which affidavit should be stated when, where, and how, deceased came to his death, etc.; that this proof should be laid by the president before the board of directors at their next monthly meeting, and upon their decision each member of deceased’s class should be assessed $1 oo. M. disappeared in November, 1869. In June, 1871, the board of directors passed a resolution declaring themselves satisfied of his death, and ordering an assessment. There is no evidence to show that the regular proof of death was ever presented:</p> <p>Held, that the assessment should be made on those who were members of the company at the date of the aforesaid resolution, and not on such as were members at the time of the disappearance.</p>

<p>Accord and satisfaction. Presumption. Evidence. Charge of court. New trial. Before Judge Craweord. Troup Superior Court. November Term, 1875.</p> <p>Reported in the opinion.</p>

<p>1. Where an administrator, who was also the guardian of his intestate’s children, charged himself, as guardian, with having received from himself, as administrator, a certain sum in cash, he cannot plead and prove, in defense to an action on his bond as guardian, that the amount so charged as cash was in fact made up of notes on divers persons who were solvent at the time, but had since become insolvent, and that with some of the notes he purchased slaves in his own nam,e in order to save the debts, and that such negroes had become valueless on account of emancipation.</p> <p>2. A note dated and due on March 7th, 186 J,payable to the guardian individually, was properly excluded, it not being made to appear that it represented a part of the ward’s estate, except by the loose statement of the guardian in his return, made in April, 1869, “that it was for the funds belonging to his wards.”</p> <p>3. Evidence to the effect that notes receipted for by the guardian, as cash, if indeed he received notes, could not have been collected at all if negroes and Confederate money had not been accepted in payment, was properly excluded.</p>

<p>Partnership. Homestead. Before Judge Hill. Houston Superior Court. June Term, 1876.</p> <p>Reported in the opinion.</p>

<p>i. In a suit between an administrator, who sues for the use of another, and the defendant, the latter is a competent witness to testify to the identity of a paper alleged to have been sold by the administrator at public sale and bought and paid for, for defendant. His testimony should be excluded only as to transactions between the intestate and defendant.</p> <p>2. When a promissory note, or other instrument in writing, is sold at administrator’s sale as insolvent paper, the maker thereof may, by an agent, purchase the same with the administrator’s consent, and if the administrator receive the purchase money and thus execute the contract of sale, his consent will be inferred, and the title of the estate thereto will pass, and the administrator cannot recover thereon.</p> <p>3. A charge, unsupported by any evidence, should not be given to the jury.</p>

Debtor and creditor. Husband and wife. Fraud. New trial. Before Judge Crawpobd. Muscogee Superior Court. November Term, 1875. On May 31st, 1872, Worrill recovered a judgment against David L. Booher and Milo Booher, on a note dated September 30th, 1868, and due at two years, for $2,000 00. The execution based upon this judgment was levied upon an undivided half-interest in.a certain part of lot one hundred and seventy, as the property of D. L. Booher.

<p>Corporations. Contracts. Stock. Before Judge McCutchen. Floyd Superior Court. January Adjourned Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Under the Code, section 3339, service is required to be effected at least fifteen days before the first day of the term. If effected on Monday, the fourteenth day, it is so far irregular that a motion made by the defendant, at the appearance term, to dismiss the case for want of due service, ought to be granted; especially where the process bears date more than twenty days before the term, and where there is nothing to show that it was not received by the sheriff more than five days preceding the date of service.</p>

Lost papers. Practice in the Superior Court. Records. Evidence. Before Judge Crawford. Muscogee Superior Court. November Term, 1875.

<p>Section 2960 of the Code, which prescribes that the husband may recover for torts committed on the wife, does not repeat the common law rule of pleading that the wife should be joined in the action. In such suits the husband may join his wife.</p>

<p>1. In order for the plaintiff to recover on the basis of triple damages for injury to animals, under section 1445 of the Code, he must sue for triple damages, (expressly remitting or releasing a part when it is necessary to give the county judge jurisdiction,) and must, moreover, allege that the defendant’s inclosure was not protected as the law requires. '</p> <p>2. Though for even voluntary torts committed by a servant in the prosecution and scope of his business, the master is liable, Code, section 2961, care should be taken not to cast on him responsibility for torts of .that class without sufficient evidence that the servant committed them in the prosecution and scope of such business; more especially, where the measure of damages may go far beyond compensation for the actual injury, and operate as a penalty.</p> <p>3. The admissions by a servant of past wrongful acts, are evidence against himself, but cannot be used to charge his master.</p>

<p>I. After specific legacies of beds and bedding to certain daughters, a testator gave to his grand-son the following legacy: “ $500 00 in money to be raised out of my estate not yet disposed of, it being in full of an amount of my ’ estate, both real and jrersonal, that I design my grand-son to have. My will also is, that my executors hold my said grand-son’s part in their hands till he becomes twenty-one years of age, then to be paid over to him, but should my grand-son die before he is twenty-one years of age, then his part of my estate, to-wit: the $500 00, to return to and become a part of my estate, to be equally divided among my children.” In the next item he directed that “ all my properly not heretofore disposed of, be, at my death, sold to the highest bidder, and that after my grand-son shall receive the $500 00 willed to him in item fourth of this my will, and after my unmarried daughters, if any, shall be made equal in property to my married daughters, then my will is that my children receive a share of my estate.” The will was proved in 1861. The grand-son attained his majorty in 1874 and demanded his legacy. The executors defended by showing, by their own testimony, that they had set apart certain notes in 1862 for the grandson, good and solvent at the time, but that all proved valueless except $25 00, without their fault; but it appeared that they had not fully settled up the estate and made final distribution thereof:</p> <p>Held, that itnder the will, it was the duty of the executors to retain a sufficiency of the estate to pay the grand-son’s legacy at his majority, and though they might have set apart a certain portion thereof for him in 1862, which proved valuless, yet if, at his majority, they had on hand enough of the estate in property or notes on the residuary legatees, themselves among the number, raised from the sale of testator’s properly, to pay the grand-son’s legacy, that they were liable therefor.</p>

Partnership. Pleadings. Trusts. Before Judge Buchanan. Troup Superior Court. May Term, 1876. Erost filed his bill against Schackleford, Stinson and Wilkerson, as administrators de bonis non, eum testamento annexo, upon the estate of John Stinson, deceased, making, in brief, this case: John Stinson died, disposing of an estate of the value of $20,000 00 by will, and appointed J. W. Stinson as his executor.

<p>Contracts. Champerty. Before Judge Hall. Monroe Superior Court. February Term, 1876.</p> <p>. Reported in the opinion.</p>

<p>A negotiable note of the laborer, bought up by the employer after the contract of hiring, is not matter of defense to a summary process for enforcing the laborer’s lien, in the absence of any request or encouragement to make the -purchase, or of any promise to allow the note as payment or as set off.</p>

<p>1. A special verdict, upon issues submitted by the court in an equity cause, having found the title to lands to be in certain defendants to the bill, the decree of the chancellor thereon vesting the title in said defendants, is valid and legal. There being no exception to the proceedings during the trial of the cause, but only to the legality of the decree, the presumption is that the law in respect to title to land was fairly submitted to the jury, and they had a right to pass upon the question of title as the main issue submitted to them.</p> <p>2. Where a younger grantee, sued at law by the holder of the older and better title, goes himself into equity, on the ground that he has made valuable improvements upon the land, and prays for compensation therefor, and the jury, in a special verdict, find that the net amount of wharfage realized by the complainant from the wharves, has been greater than the amount he expended on them, with interest, and that the defendants were unacquainted with the fact that they had any title to the land when the complainant obtained the grant and erected the wharves, though they knew he' was erecting the wharves, a decree which denies him further compensation follows the verdict, and is legal and valid.</p>

Factors. Principal and agent. Settlement. Contracts. Evidence. Before Judge Weight. Pike Superior Court. October Adjourned Term, 1875. Frisbie, Roberts & Company brought complaint against Cyrus R. Wilson, on a note dated July 21st, 1873, payable to the order of plaintiffs, due on the 1st of December next thereafter, for $1,342 91.

<p>The bona fide holder of negotiable bonds, payable to bearer, and not due, deposited by the bearer as collateral security for the loan of money, will be protected in his title, even against the true owner, until the borrowed money be paid or he realize thereon to indemnify himself. Section 2139 of the' Code must be construed to harmonize with sections 2639, 2785 and 2789, and with universal commercial law; and will be restricted to its very letter, if necessary so. to restrict its meaning, in order not to unsettle long established law and usage, especially as the section is awkwardly expressed, ambiguous and uncertain. The whole subject needs legislation.</p>

<p>1. The right to sue for the homicide of the husband vests in the widow at the death of her husband, and is not divested by the subsequent marriage of the widow.</p> <p>2. The subsequent marriage of the widow will not change the measure of damages to which she was entitled when her right of action accrued.</p> <p>3. The evidence being conflicting, and there being evidence sufficient to support the verdict, and the presiding judge being satisfied therewith, this court will not interfere, especially after three successive verdicts for the plaintiff.</p>

<p>1. An instrument attested by a subscribing witness, is inadmissible except upon proof of execution by sucb witness, unless bis absence bas been satisfactorily accounted for.</p> <p>2. Where, to ejectment by vendor against vendee, holding under bond, who has made default in payment of purchase money, a third person “ who claims the possession and title to the premises against the plaintiff,” is made a party defendant, a deed offered by her tending to show title out of the plaintiff, and to explain her possession, is admissible.</p> <p>3. The fact that the plaintiff had proved his claim for the purchase money in the bankrupt court, as against the estate of the vendee, would not prevent his recoveiy.</p>

<p>Principal and agent. Ratification. Banks. Evidence. Receipts. Jury. Charge of coart. Witness. Practice in the Snperior Court. Verdict. New trial. Practice in the Supreme Court. Attorneys. Before Judge Hill. Bibb Superior Court. October Term, ,1875.</p> <p>Effie Kent brought complaint against the City Bank of Macon, on an account containing but one item, as follows : “May 15th, 1872 — To amount of cash deposited in said bank to her credit, $4,000 00.”</p> <p>The defendant pleaded as follows:</p> <p>1st. The general issue.</p> <p>2d. That said deposit was made by Benjamin E. Griggs, who, at the time, held a general power of attorney under the hand and seal of plaintiff, for the management of said money; that said sum has been fully paid out to said attorney, under checks signed by the plaintiff, payable to said attorney or bearer; that such payment is a full discharge of the defendant.</p> <p>3d. That said power of attorney was exhibited by Griggs to the defendant at the time of making said deposit, and was unrevoked at the time of the payment of the aforesaid checks by the defendant; that such payments, therefore, operated as a full discharge to the defendant.</p> <p>4th. That after said money was thus paid out to said attorney in fact, he fully accounted with the plaintiff for the same, and the latter ratified the payment to him, and had a complete and final settlement with him as to his liability on account of such money.</p> <p>The evidence, which was voluminous, made, in 'substance, the following case:</p> <p>Benjamin F. Griggs was the family physician of the plaintiff. His relations with her were of the most intimate character. He attended her husband- in his last sickness, and after his death, became her agent for the collection of $5,000 00 due to her on policy of insurance on the life of the deceased, under the following power of attorney:</p> <p>“STATE OF GEORGIA — Bibb County:</p> <p>“ Know all men by these presents, that I, Effie Kent, widow of James M. Kent, deceased, of said county and state, do hereby, in consideration of $1 00 to me paid, the receipt whereof is hereby acknowledged, do constitute and appoint Dr. Benjamin F. Griggs, also of said county, my true and lawful agent and attorney in fact, for me and in my name, place and stead, to apply for and collect any and all moneys due, or to become due to me, from any source, and especially the amount claimed by me from the Continental Life Insurance Company, of the city of New York, on the policy of said company held by me, insuring the life of the said James M. Kent, now deceased, and to give for me and in my name, any and all receipts or acquittances necessary or proper on receiving, or in order to enable him to receive any and all such moneys, or any part thereof; and also to apply portions of such moneys, after being received by him, to debts due by me, taking receipts therefor, and generally to do and perform any other act or acts in and about my said business that may be deemed necessary or proper. Hereby ratifying whatever my said attorney shall do in the premises by virtue of these presents.</p> <p>“In testimony whereof, I have' hereto set my hand and affixed my seal, this 5th d'ay of April, in the year A. D., 1872.</p> <p>(Signed) “EFFIE KENT.</p> <p>“ Signed, sealed and delivered in presence of “ D. W. Hammond,</p> <p>“ R. S. Lanier.”</p> <p>The plaintiff states that Griggs proposed to attend to this business for her as a brother, charging no compensation therefor; Griggs, on the contrary, asserts that plaintiff requested him to collect the money for her,, offering at the same time to allow him for his services one-half the net proceeds after paying all the expenses of collection, etc., out of the fund.</p> <p>Griggs collected from $4,900 00 to $5,000 00 on the policy, $4,000 00 of which he deposited, on May 23d, 1872, in the name of plaintiff, with the defendant. It is for this sum that the suit is brought; At the time the deposit was made, Griggs showed to the cashier of defendant the above power of attorney, and stated that it was under the authority of such instrument that he was acting. The defendant produced six checks, aggregating $4,000 00, purporting to have been signed by plaintiff' which were paid by it. These checks were presented by Griggs and the money paid to him. The plaintiff denied that she had signed any of these checks, and upon this point the evidence was distressingly conflicting. But the overwhelming weight of testimony showed that the signatures would have been pronounced by any bank officer as genuine. If the checks were spurious the forgery was so well executed that the most expert would have been deceived. The teller and cashier of defendant both testified emphatically to the fact that when plaintiff came to them for her money, before suit brought, she admitted that she had signed two of the cheeks, but did not specify which. This the plaintiff denies, and a witness who accompanied her, states that he has no recollection of such admission, though it might have been made.</p> <p>The defendant furlher insisted that even though the checks were forgeries, and even though Griggs had no authority to draw the money from bank, yet that plaintiff had ratified his illegal and unauthorized acts in this particular, in receiving all or a portion of the money thus drawn out from him, in authorizing him to lend it to various persons at interest, and in accepting his note for a part thereof, or in receiving payments on such note after she was informed that it was given for a portion of the money thus drawn out of bank. As to each of these acts, from which defendant sought to infer ratification, the evidence was very conflicting. Griggs swore that plaintiff knew all about the money’s having been drawn from bank, and that she, with such knowledge, received about $2,000 00 thereof, in addition to the $900 00 not deposited. This the plaintiff denies. Griggs further staled that plaintiff importuned him to lend out the money for her benefit. This also the plaintiff denies. Griggs further testified that he placed in the hands of Lanier & Anderson, attorneys, a note on himself) payable to the order of plaintiff, for $1,200 00, dated September 25th, 1872, and due one day after date, which covered an amount loaned to him by the plaintiff after he had settled in full for her insurance money, upon which he was to pay her the interest, and the principal as she might need it from time to time. That this was done with the knowledge and consent of the plaintiff. Whether plaintiff knew at the time this note was placed in the hands of Messrs. Lanier & Anderson by Griggs, that it represented a portion of the money drawn from bank, or even that it had been placed there at all, the evidence is conflicting. But two payments were made on this note, each of $50 00, and the testimony indicates that even if the plaintiff did not know that this paper represented a portion of her insurance money when the first payment was made, she certainly did at the time of the last. Failing in these grounds of defense, the defendant undertook to show that Griggs had accounted with plaintiff for all of the money thus drawn from bank, and for this purpose introduced the two following receipts:</p> <p>“Macon, Ga., August 27th, 1872.</p> <p>“ Received of Dr. Benjamin F. Griggs $4,900 00, less certain amounts paid out by him on my account and by my order, in full of the amount collected by him as my attorney in fact, from the Continental Life Insurance Company of New York, on a policy insuring the life of James M. Kent, my late husband. (Signed) “ EFFIE KENT. ”</p> <p>“Witness: H. J. Peter.”</p> <p>“Macon, September 11th, 1872.</p> <p>“Received of Dr. B. F. Griggs $60 00 in full of balance in his hands as my agent, and in full of all demands of every description I have against him.</p> <p>(Signed) “ EFFIE KENT.”</p> <p>“ Witness: Peter C. Sawyer.”</p> <p>Griggs testified that the first of these receipts was given in full settlement of the amount due by him to plaintiff for moneys collected; that there was then in bank to the credit of plaintiff $500 00, and he so informed her; that on the 30th of August, at her request, and on her check, he drew the remaining $500 00 from bank and handed it to her; that she returned him $200 00 of this amount, with the request that he pay certain bills for her, as she was going to Florida; that he paid the bills, and, on the 16th of September, handed to her a balance of $60 00, remaining after making the disbursements she requested, and took the receipt last above set forth. (The date of this receipt in the record is September 11th.)</p> <p>The witnesses to these papers throw no light upon them. They testified as to nothing material except the execution.</p> <p>Plaintiff stated that she first saw the receipt for $4,900 00 at Peter’s drug store on September 16th, 1872, in presence of Mr. Peter ; that she signed it a second time, on the same day, at Griggs’ house, in presence of Mr. Sawyer. That Griggs read the receipt to her, on both occasions, as for $900 00. That she supposed she was signing, oh each occasion, the same paper. That he paid her, on the same day, $60 00 at the train as she was about to leave for Hawkinsville. That she understood her $4,000 00 to be in bank, and that this receipt was for the disbursement of the $900 00 never deposited, the balance of which was the $60 00 paid to her by Griggs at the depot, and which he promised to bring there at the time she signed the receipt.</p> <p>There were also in evidence, two indictments against Dr. Griggs, found before this suit was brought and still pending, one of which charged him with the forgery of one of the aforesaid checks and the other with the larceny after trust delegated of the balance of the money collected from the insurance company after the deposit of the $4,000 00 in bank.</p> <p>The jury found for the plaintiff the full amount sued for.</p> <p>The defendant moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the court erred in refusing to allow the defendant to keep Benjamin F. Griggs in the court-room to assist in the management of the defense, under the following circumstances: Before the presentation of plaintiff’s case began, defendant’s counsel asked .the court to have the witnesses separated. Plaintiff’s counsel then asked that defendant’s witnesses be also excluded. Defendant’s counsel replied that the presence of Griggs was essential to them in the conduct of the defense, especially in the examination of the witnesses for the plaintiff; that the testimony in the case would be long and intricate, and the principal actors in the transaction which gave rise to the suit, Avere the plaintiff and said Griggs; that this testimony conflicted throughout, aud that unless the court would allow Griggs to be present during the examination of plaintiff’s witnesses, they would withdraw the motion to separate. Plaintiff’s counsel then renewed such motion. Defendant’s counsel then asked that Griggs be allowed to remain during the examination of plaintiff’s Avitnesses for the reasons already stated, and for the further reason that the officers of defendant knew little or nothing personally about the greater portion of the matter in referepce to Avhich the plaintiff and her witnesses would testify. The court excluded all the witnesses in the case except the plaintiff and the cashier of defendant.</p> <p>2d. Because the court erred in the portion of its charge which Avas as follows: “The defendant takes on itself the burden of proof that these checks are genuine. The bank, in receiving this deposit, guaranteed that it would keep the same, and only pay it out.to the plaintiff, or to some one duly and legally authorized by her to receive it. The fact that the signature of the name of plaintiff purports to be her signature, or that it is a good or bad imitation of her signature, will not do; the bank must show to your satisfaction that the signatures are genuine. If the defendant has established the genuineness of these checks by unimpeached testimony, then you will find for the defendant, but if defendant has failed to do so, then you will find -for plaintiff on this issue.”</p> <p>- 3d. Because the court erred in the following portion of its charge: “If these checks are not the genuine checks of the plaintiff, then I. charge you that the defendant is not helped by the power of attorney of plaintiff to Griggs. When that $4,000 00 was placed to the credit of the plaintiff with the defendant, if was placed beyond his control under that power. That power gave him no authority whatever to draw it out.”</p> <p>4th. Because the court erred in the following portion of its charge: “A witness may be impeached by evidence as to his general bad character, and a witness may impeach himself by confession to infamous conduct which, if true, would exclude him from respectable society.”</p> <p>ñth. Because the court erred in the following portion of its charge : “ The second defense set up by defendant is, that the plaintiff, after knowing all the facts as to the drawing of this money from the bank by Griggs, ratified such withdrawal. If the defendant has proved this to your satisfaction, then you will find the issue for the defendant. But the burden of proof to establish this is on the defendant, and it must show, first, that plaintiff knew the facts as to the deposit of this money in bank and its withdrawal by Griggs on checks purporting to be signed by her; and second, her ratification ofsuch withdrawal after such knowledge. If you find these facts clearly proved, then you will find this issue for the defendant; but if the defendant has failed in establishing, by proof, all or either of these propositions, then you will find the issue for the plaintiff.”</p> <p>6th. Because thp court erred in the portion of its charge which was as follows: “Another defense is that Griggs, after the deposit of this money in the bank and his withdrawals of ifc on her checks, and with a full knowledge of these facts by the plaintiff, paid over the full amount so deposited and withdrawn, to her; this is denied by the plaintiff' and the burden of proof is on the defendant to establish it by evidence. If you find these facts proved to your satisfaction, to-wit: that the plaintiff, with a full knowledge of this deposit in bank, and of its withdrawal by Griggs on checks in her name, and that Griggs paid her over this money in satisfaction or part satisfaction of the same, then such payment, to the amount thereof, should be allowed the defendant as a credit on the plaintiff’s claim, at the date of such payment; but if the defendant has not established these facts by proof, or if these payments by Griggs were made out of that part of the funds not put in" bank, then you will find this issue for the plaintiff.”</p> <p>7th. Because the court erred in charging the jury as follows: “The receipt in evidence, dated August 27th, 1872, does not purport to be in regard to this deposit in bank or its withdrawal from bank, and Griggs, on disbursing the money left out of bank, and on depositing the balance of $4,000 00 in bank to plaintiff’s credit, was entitled to just such a receipt, and her receipt would be, and is, a ratification of his disbursement of the nine hundred and odd dollars, and also a ratification of his deposit of the $4,000 00 to her credit in bank, and nothing more. It is not evidence that one dollar of the money deposited in bank and drawn out by Griggs, had ever been received by her.”</p> <p>8th. Because the court erred in the following portion of its charge: “If the receipt of September 16th, 1872, you shall find is as to a balance of $60 00 kept out of this deposit in bank, and the only transaction then had was the payment of the $60 00, then such receipt, although it expresses to be in full of all demands, can be of no avail to defendant in this case.”</p> <p>9th. Because the court erred in charging as to the note for $1,200 00 as follows: “Bank checks and promissory notes are not payment until themselves paid. As to the credits on this note, whatever amount of money Griggs paid to the plaintiff out of the money deposited in bank and drawn out by him, and she received, knowing it was such money, then to that extent defendant is entitled to a credit therefor in this case; but if she received it from Griggs without knowing this, then it is a payment with which defendant has nothing to do, and a private matter between her and Griggs, and the burden of proof of payment is on the defendant.”</p> <p>10th. Because the court erred in charging the jury as follows: “Defendant claims that plaintiff admitted to the officers of the bank that she signed two of the checks. In order for the defendant to avail itself of this, it should have shown which two checks were so signed by her, and failing to do this, it is not entitled to a credit therefor.”</p> <p>11th. Because the court erred in refusing to charge as follows: “If the execution of the power of attorney from Effie Kent to Dr. Griggs has been proven, such power of attorney constituted Dr. Griggs the agent of Mrs. Kent in the management of this money. And if Dr. Griggs exhibited the power of attorney to the bank at the time he made the deposit, as evidence of the capacity in which, and authority uuder which he acted in making the deposit, then the bank was authorized to deal with him, in reference to said money, as the trusted, confidential agent of Mrs. Kent, and if, while so dealing with him, he drew out the money upon checks purporting to have been signed by Mrs. Kent, and the evidence should be conflicting, and the jury in doubt whether such checks were genuine or forged, the jury should give the benefit of such doubt in favor of the bank and against Mrs. Kent.”</p> <p>12th. Because the court erred in refusing to charge as follows: “If the power of attorney from Mrs. Kent to Dr. Griggs is sufficiently proven, it constituted the latter the agent of Mrs. Kent in the management of the money received from the insurance company, not only for its collection and safe keeping, but also for its disbursement as to portions of it; and if, after the collection of this money, Dr. Griggs deposited á portion of it, say $4,000 00, in the City Bank in the name of Effie Kent, and at the time of doing so exhibited to the bank the power of attorney as evidence of the capacity in which, and the authority under which he acted in making said deposit, then the money so deposited was not, by such deposit, removed from the operation and authority of the power of attorney, but the same remained within the terms thereof, and such deposit thereunder was subject to the control of the attorney in fact, Dr. Griggs, while it was not revoked; and it the bank, innocently and without knowledge of any fraud by Dr. Griggs, under these circumstances, and in the absence ol contrary instructions, paid the money to him in good faith, and charged up the amount in the deposit book which he presented, believing that he was receiving it for the use and benefit of Effie Kent, and had reason so to believe, then the bank is not liable, even though they had no check from Effie Kent.”</p> <p>13th. Because the court erred in refusing to give the following charge: “The power of attorney from Mrs. Kent to Dr. Griggs constituted him her agent in the management of the money received from the insurance company, not only for its collection and safe keeping, but also for its disbursement as to portions of it; and if, after the collection of this money, Dr. Griggs deposited a portion of it, say $4,000 00, in the City Bank, in the name of Effie Kent, and at the time of doing so exhibited to the bank the power of attorney which is in evidence, as the authority under and capacity in which he acted in making said deposit, then the bank was authorized to deal with Dr. Griggs, in reference to this money, as the trusted, confidential agent of Mrs. Kent; and if, under these circumstances, the bank paid money to Dr. Griggs under the confidence created by said power of attorney, upon checks purporting to be signed by Mrs. Kent, and apparently signed by her, the bank is not liable, if the payment was made in good faith and charged up on the deposit book presented by Griggs at the time, believing the checks to be genuine, and that the money was being paid to the trusted, confidential agent of Mrs. Kent, for her use or on her order; and if it had good reason so to believe.”</p> <p>14th. Because the court erred in refusing to give the following charge: “If the jury should find that the checks were not signed by Mrs. Kent, still the bank will not be liable if they should find that she knew that the money was being drawn without her check, and consented to and approved of the same; nor will the bank be liable if the jury should find that Mrs. Kent, with the knowledge that the money had been drawn from the bank without her cheek, still accepted and used said money, knowing the same to be a portion of the said money in bank; nor will the bank be liable, under these circumstances, if she knew and consented to the use of the money by another party after having been so drawn.”</p> <p>15th. Because the court erred in refusing to give the following charge without qualification: “ If the jury should find that the checks were not signed by Mrs. Kent, and that the money was drawn from the bank without her knowledge, still the bank will not be liable if she, after discovering that the money had been so drawn, ratified the act of so drawing said money; if the plaintiff, with the full knowledge that said money had been so drawn without her check, received the same from Dr. Griggs, or approved his disbursement of it, then such acts on her part constituted a ratification by her of the drawing of the money, and she cannot recover.”</p> <p>After charging this the court added the following qualification: “If knowledge proved and payment made; but the burden is on the defendant to show these facts, and the receipt of the 27th of August to Dr. Griggs does not prove either.”</p> <p>16th. Because the court erred in refusing to charge as follows: “The principal cannot ratify in part and repudiate in part, but a ratification of any part will operate as a ratification of the whole; and in this case, if Mrs. Kent has, with a knowledge that the same constituted a portion of the fund in bank drawn out by these checks, received any portion of it from Dr. Griggs, as her agent, it is a ratification as to his right, as her agent, to draw all of it.”</p> <p>17th. Because the court erred in refusing to charge as follows : “If in this case it should appear, by the evidence, that Dr. Griggs had illegally drawn this money out of the bank by forged cheeks, and if it should further appear that Mrs. Kent, knowing this fact, recognized Dr. Griggs as her debtor for the whole or a part thereof, received by her as a settlement of the amount due her, and received his note for such amount, that would constitute a ratification, and plaintiff cannot recover.”</p> <p>18th. Because the court erred in refusing to charge as follows: “It is not necessary that Mrs. Kent should have actually received the note in her hands; but if she directed Dr. Griggs to place the note in the hands of Messrs. Lanier & Anderson for collection, or recognized such note as hers after having been so placed, she thereby recognized Dr. Griggs as her debtor; and if she knew the said note was for the whole or any part of the $4,000 00 which was in bank and drawn out by Dr. Griggs, and so recognized him as her debtor by receiving said note, and received the same in settlement of the amount due by him on the $4,000 00 so drawn out by him, that was a ratification by her, and she cannot recover. If she.received, through Lanier & Anderson, $100 00 upon said note, she thereby recognized said note as her property, and also recognized Dr. Griggs as her debtor,, and if she knew his debt was for a portion of the $4,000 00 drawn from the bank, and received said note in settlement of the amount due her on the $4,000 00, she ratified the drawing, and cannot recover.”</p> <p>19th. Because the court erred in refusing to charge as follows : “ If the jury should find that Mrs. Kent received a payment upon a note given by Dr. Griggs, which she knew to be a portion of the $4,000 00 which was in bank, and which had been drawn'out, and which she had received in settlement of the amount due her on the $4,000 00 deposit, it makes no difference whether or not she knew the exact amount of the note. It is sufficient if she knew it was a note given her by Dr. Griggs for either the whole or a part of the whole $4,000 00 which was in bank, and which Dr. Griggs had drawn out, she having consented to receive it in settlement for the same; and if, with this knowledge, she received a payment on the note, she recognized the note and the debt to her by Dr. Griggs, and having so ratified the drawing of the money, she cannot recover.”</p> <p>20th. Because the court erred in refusing to give the following charge, without qualification: “The deposit of this money by Dr. Griggs in the bank did not operate as a revocation of said power of attorney as to that money.”</p> <p>To this the court added the following qualification: “But did deprive him of the right to draw the money out by virtue of it.”</p> <p>21st. Because the court erred in refusing to give the following charge, without qualification: “By the deposit of the ■money in bank, the power of attorney, which is in evidence, did not become fundus officio as to that money.”</p> <p>To this the court added the following qualification: “It was of no force over that money so long as it remained in bank, until Mrs. Kent should draw it out. The bank, by a new contract with the plaintiff, had stipulated it should be drawn by her order.”</p> <p>' 22d. Because the court erred in refusing to give the following charge, without qualification : “An agent, under a power of attorney such as that in evidence, does not part with the right to control a fund .when the same has been deposited by him in a bank in the name of his principal, until said deposit has been reported by him to his principal, unless said power of attorney is revoked, or unless the instructions to the agent are to deposit funds when collected.” %</p> <p>To this the court added the following qualification: “On such deposit, he parted with the power to draw it out on the forged checks of his principal; and if he drew out on forged checks, then he waived the right to withdraw on his power.”</p> <p>23d. Because the court erred in refusing to give the following charge, without qualification : “If an agent, under a power of attorney such as that in evidence, deposit money collected by him, in a bank, in the name of his principal, in the absence of any instruction or agreement to deposit, said agent has the right to withdraw said deposit without the order of the principal, upon return of the evidence of deposit, if the same is done before it is reported to his principal, and before the revocation of the power of attorney.”</p> <p>To this the court added the following qualification: “But he cannot do this on the forged order of his principal. The presentation of such forged order would be a waiver of his right to do so under his power of attorney.”</p> <p>(The remaining grounds of the motion are so qualified by the presiding judge that it is deemed best only to set forth their substance as qualified.)</p> <p>24th. Because the court erred in instructing the jury, in an emphatic manner, immediately after the defendant’s counsel had stated its defense to the jury, as the court was about to adjourn for the. day, that although the plaintiff had closed, yet they would probably be occupied several days in hearing the evidence, and it was therefore important that they should give their close attention to the testimony, so as not to be dependent upon the statements of counsel or their fellow-jurors for the evidence; that they had best make up no opinion in the case until they had heard all the testimony, the arguments of counsel and the charge of the court thereon, etc.; that they must keep in their minds the distinction between the facts as they were actually given in by the witnesses and the statements of counsel as to the facts they expected to prove; that they were only to consider the evidence as delivered before them.</p> <p>Defendant’s counsel submits that these instructions were calculated to prejudice their case, and were wholly uncalled for as they had plainly said to the jury that their statement, simply covered facts which they expected to prove.</p> <p>25th. Because the court erred in refusing to allow defendant’s counsel to ask the plaintiff certain questions which were-proposed, unless they would disclose their object, although such counsel stated in their place that they would, in due time, show the relevancy, and that they expected to contradict the witness by her own testimony, and begged the court to remember that they were upon the cross-examination of the plaintiff, and that to disclose their object would be to defeat it.</p> <p>26th. Because the court erred in reading aloud to the jury the date, as he understood it, of a certain letter from plaintiff to Lanier & Anderson, it being a disputed point as to how said date should be read.</p> <p>(The court states that there was no obscurity about such date; that'it was plainly written September 23d, 1872.)</p> <p>27th. Because the court erred in conversing with H. L. Jewett, a witness upon the stand, after his examination was through, in an undertone.</p> <p>As stated in the motion, the manner of the court in this conversation, was such as to prejudice the defendant’s case before the jury; but as qualified by the court, it, amounted to nothing more than is above set forth.</p> <p>28th. Because the court erred in this: When Plant, plaintiff’s witness, was testifying as an expert to the effect that, in his opinion, the checks were not signed by the same person who had made the signatures admitted to be genuine, defendant’s counsel exhibited to him two signatures of plaintiff which had been proven to be genuine, but which the witness had not previously seen, and asked him, as an expert, if the two signatures were made by the same party who had made the other signatures, admitted to be genuine; the witness hesitated and declined to express an opinion. When pressed by counsel to give his opinion, he said: “ In my opinion they may have been made by the same party or they might not have been.” When pressed for a more definite answer, after hesitation he said: “ I should be inclined to doubt if they were made by the same person.” At this point the court interrupted the examination with this question: Mr. Bacon, are not these two signatures about which yon are now questioning Mr. Plant, two signatures which have already been proven to be genuine? Counsel replied in the affirmative, when the witness expressed the opinion that upon close inspection he believed they were genuine.</p> <p>(The judge states that he never was aware of the fact, until it appeared in the motion for new trial, that Mr. Plant was not informed that the two signatures presented to him had been proved to be genuine; that he simply interfered to prevent a pointless cross-examination.)</p> <p>29th. Because the court erred in this: Counsel for defendant had requested the court to charge the jury in writing. The court added verbal qualifications to certain written requests, when counsel asked if such additions were in writing. Upon the first occasion the court answered that it was not, and immediately reduced the same to writing. Upon the second, the court answered that the qualification was not in writing, and asked counsel if they wished to make a point on this fact, because if they did they could have the bénefit of the exception ; if not the court would put it in writing. Eeceiving no response, the court reduced the same to writing.</p> <p>(The pith of this ground lay in the manner of the court in its remarks to counsel. But the judge, in his comments, denies the objectionable features set forth.)</p> <p>30th. Because the verdict was not the voluntary and uncoerced finding of the jury, but was determined by a device unauthorized by the law, which a majority of the jury, who were in favor of finding for the defendant, were forced to adopt to relieve themselves from great bodily suffering, and to escape imminent and great danger to their health, if not to their lives; all of which is shown by the affidavits of seven of the jurors in said case, hereto attached.</p> <p>(The presiding judge states that if any of the jury were sick, or uncomfortable or desired better accommodations while kept together, he knew nothing of it; that they were brought into the court-room at eight o’clock in the morning and.at three o’clock in the afternoon, at which times they appeared to be healthy and comfortable; that he has examined the bailiff, who had the jury in charge, on oath, and he states that he never knew or heard of any complaint of sickness among them while under his charge. The judge further states that he has no knowledge of the mode by which the jury arrived at their finding, except from the affidavits of the jurors which he declines to consider.)</p> <p>31st. Because the court erred in refusing to allow the jury to be polled upon the ground that they had been allowed to disperse by consent, after the finding of the verdict and before the delivery of the same into court.</p> <p>The motion was overruled and the defendant excepted upon each of the grounds therein set forth.</p> <p>The defendant also presents the following exceptions:</p> <p>1st. The case was tried at the April term, 1875. The defendant, at the same term, moved for a new trial, and, in open court, asked the judge to hear the motion read and to certify to the allegations therein contained as being true, while the occurrences were fresh in his mind. . The judge refused, without assigning any reason therefor, to hear the motion read or to pass upon the truth of the facts set forth in the various grounds, but ordered that the motion be set down for a hearing at the succeeding term of the court. To all of which defendant excepted at the succeeding term of the court. No exceptions pendente Ute were filed.</p> <p>2d. At the next term of the court, when said motion was read, the judge stated that he would not certify to the correctness of many of the allegations therein contained. Counsel for defendant requested that before proceeding to argue the motion, the judge would point out the allegations which were erroneous. The judge refused to grant the request, or to give information as to where the errors would be found and in what they consisted, and ordered counsel to proceed with the argument. To all of which the defendant excepted.’</p> <p>3d. As appears from the comments of the judge in his order overruling the motion, he examined, ex parte, the bailiff having the jury in charge, as to the truth of some of the allegations in the motion contained, without giving notice to counsel for defendant, in order to enable them to contradict the statements of said bailiff. To this defendant also excepted.</p> <p>Error is assigned upon each of the aforesaid grounds of exception.</p>

<p>X. If a plaintiff in execution, for a valuable consideration, releases property which is subject thereto, it is a satisfaction of such execution to the extent of the value of the property so released, so far as purchasers and creditors are concerned.</p> <p>2. Will a court of equity compel an older judgment creditor, when there are junior mortgages upon distinct parcels of the debtor’s property, to resort, in the first instance, to the property last encumbered, or compel all the property encumbered to contribute pro rata to- the payment of such lien ? Quaere.</p> <p>3. Where, on a money rale, the oldest execution was attacked upon the ground that property sufficient to satisfy it had been released from its lien* the exemplification of a bill in equity filed by the present holders of said fi. fa. to enjoin the levy of the same, then in the control of the defendant to said bill, upon which a consent order had been taken providing for the transfer of said fi. fa. to the present owners, and the release of certain property therefrom, was admissible, as it tended to show the circumstances under which the transfer was made, and the inducement which led to the release. ■</p> <p>4. Where a verdict may, by a reasonable construction, be understood, and a legal judgment can be entered thereon, it is sufficient.</p>

<p>Corporations. Stock. Evidence. Ultra vires. Before Judge Gibson. Richmond Superior Court. April Term, 1875.</p> <p>Reported in the opinion.</p>

Contracts. Promissory notes. Evidence. New trial. Before Judge Hall. Rockdale Superior Court. April Term, 1876. E. B. Rosser brought complaint against R. W. Rodgers, as principal, and W. J. Tucker, as security, on three promissory notes, each in the following form : “By the 25th day of December, 1874, I promise to pay to J. P. Rosser, or bearer, the-sum of $100 00, for value received, with interest at seven per cent, from date.

<p>I. The fact that two days had been consumed in the trial of a motion to vacate a judgment made by one of two defendants thereto, and that the motion was voluntarily dismissed by said defendant after such consumption of time, is not legal cause for the dismissal by the court of another motion to vacate, made by both defendants, especially if additional grounds for the new motion be set out therein.</p> <p>2. On an appeal from a judgment at common law, rendered in i860, the court has no power to enter up judgment against the defendant and his security on the appeal, in 1874, without the intervention of a jury, though no defense be filed on oath, and such judgment is null and void.</p>

<p>Contracts. Mortgages. Before Judge Buchanan. Troup Superior Court. May Term, 1876.</p> <p>Reported in the decision.</p>

<p>Criminal law. Jury. Charge of court. Practice in the Supreme Court. New trial. Newly discovered evidence. Before Judge Underwood. Polk Superior Court. February Term, 1876.</p> <p>Meeks was placed on trial for the murder of John McCormick, alleged to have been committed on the 6th of June, 1875. He pleaded not guilty. The evidence made a clear case of murder, and the jury so found. The defendant moved for a new trial upon the following, among other grounds :</p> <p>1st. Because the court erred in not giving the law of circumstantial evidence in charge, and in not explaining to the jury their right to find a verdict of guilty, with a recommendation to mercy, and the effect of such recommendation.</p> <p>In reference to this ground, it is only necessary to state that there was direct evidence to show that the defendant was present, with a pistol in his hand, at the time deceased was killed, and that he admitted that he shot him.</p> <p>2d. Because the court erred in failing to explain to the jury the penalty of each of the grades of manslaughter, merely reading the definitions from the Code, without other or further explanations.</p> <p>3d. Because Milton E. McCamack, one of the jurors who tried defendant, and who was summoned as a tales juror, was a citizen of the state of Alabama and not a citizen of the county of Polk and state of Georgia; for that the said McCamack moved, within the six weeks preceding the trial, from Alabama to Polk county.</p> <p>In support of this ground, the affidavit of counsel was attached, to the effect that they were ignorant of the fact until after the verdict was rendered. Also, the affidavit of the juror that he moved from Georgia to Alabama in December, 1874, and returned to the county of Polk on or about the 22d of December, 1875, to become a citizen of Georgia.</p> <p>There were incorporated in the motion several grounds based on the failure of the court to charge certain principles of law, and on the discovery of newly discovered evidence. The record and bill of exceptions fail to disclose that any requests to charge were made, or that, if requested, such requests were not charged. ,</p> <p>The newly discovered evidence was principally cumulative,. and was not of such a character as to have changed the result in case of a second trial. The court allowed a counter-showing, by which the credibility of the newly discovered witnesses was very seriously attacked, and to this the defendant excepted.</p> <p>Two of such witnesses were shown to have been confined in jail with defendant, one for hog stealing and the other for larceny from the house, the former having already served one term in the penitentiary. One of them proposed to testify to threats on the part of deceased to kill defendant. The other, together with another witness, proposed to show that defendant was in such a position at the time of the homicide as it would have been impossible for him to have done the killing. The counter-affidavits demonstrated that these witnesses were not in the vicinity of the place of the homicide at the time the shooting was done.</p> <p>The motion was overruled and the defendant excepted.</p>

<p>Where a prisoner escapes before trial, the solicitor general is only entitled to the costs which have accrued up to the time of such escape.</p>

Negotiable instruments. Contracts. Attorney. Evidence. Verdict. Amendment. Practice in the Superior Court. Before Judge Hill. Bibb Superior Court. April Term, 1876. Bullard brought complaint against Collins & Son as acceptors and indorsers, and Collins, Flanders & Company as indorsers, on the following acceptance: “ $1,582 23.

<p>Interrogatories. Practice in the Superior Court. Arbitrament and award. Charge of court. Railroads. Before Judge Hill. Bibb Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

<p>1. A chartered railroad, with all rights and privileges that properly appertain to it as an instrument of transportation, (excluding of course, the franchise of the corporation to be a body politic) is property, subject to be applied to the payment of its just debts; and the whole may be sold for that purpose, in this state, under a j udgment at law.</p> <p>2. But the judgment, and the execution founded thereon, must be specially moulded, in substantial compliance with sections 3082, 3562, 3639 of the Code; if not in all cases, certainly in a case where the railroad, in pursu. anee of the charter, has been located and partially constructed in three counties.</p> <p>3. A sale under an execution not thus moulded, about to be made by the sheriff, may be arrested by an affidavit of illegality interposed by the corporation, through its proper officers.</p> <p>4. Such a sale, though consummated without legal resistance, would be void; and, consequently, the rights of other creditors, or of the stockholders, would not be lost. And if injunction, at the instance of one or more of these, could be granted at all, to prevent the intended sale, a necessary condition would be, that the executive officer of the corporation had been requested to interpose an affidavit of illegality, and had refused to do so; or that such request had been omitted for some sufficient reason.</p> <p>5. The judgment from which the execution issued in the present case, is not void as a general judgment, whether the element of contractor’s lien be sustainable or not; and it is amendable by superadding appropriate directions for making sale of the property, and for issuing a special execution in conformity.</p> <p>6. The declaration is sufficient; and the clerical error in the date of filing, is amendable by the date of the process, fortified, as it is, by the return of service.</p>

<p>The act of 1850 (Cobb’s Digest, 540,) which provided that compensation be paid physicians summoned to hold post mortem examinations at coroners’ inquests, out of the county treasury, was superseded by the. Code. The power of coroners to summon physicians, at the expense of the county, is now limited to cases where the verdict of the jury suggests death from poison.</p>

<p>1. Property mortgaged in 1870 without dny waiver of homestead, being claimed as a homestead in 1871, the mortgagee, who had filed objections, withdrew the same and granted further indulgence, on condition that the homestead be set apart subject to the mortgage, which was done accordingly, and the mortgagor’s wife died in a few days thereafter: he having no minor children, the specific homestead right concerning which the parties made their agreement terminated for all time.</p> <p>2. Afterwards, the mortgagor married again, went into bankruptcy, and, in 1875, procured the same property to be set apart to him by the assignee in bankruptcy, as a homestead: this second homestead, being based on the existence of a new family, is lawful,; is unaffected by the agreement touching the first; and, so long as it exists, the property is not subject to levy and sale under the mortgage.</p>

<p>Promissory notes. Indorsement. Pleadings. Evidence. Before Judge Crawford. Harris Superior Court. April Term, 1876.</p> <p>Reported in the decision.</p>

Criminal law. Evidence. New trial. Before Judge Underwood. Chattooga Superior Court. March Term, 1876. Beck was indicted for the murder of R. H. Shamblin. On the trial, the evidence for the state was, in brief, as follows: On the morning of October 28th, 1875, one McEntyre was working in a corn-field in Chattooga county. He saw defendant get up from behind a tree just outside the enclosure, with a gun in his hands.

<p>The provision in the constitution of 1868, giving the judge power to render judgment without the intervention of a jury, where no issuable defense is filed on oath, is not retroactive. Therefore, an appeal having been entered prior to the adoption of such constitution, it was error for the court to render judgment against the principal and security without submitting the case to a jury.</p>

Levy and sale. Title. Presumption. Fraud. Before Judge Tompkins. Bibb Superior Court. October Adjourned Term, 1875. A fi. fa. in favor of Taggart against one Cherry, dated November 30th, 1874, was levied on certain property in the city of Macon, and Collins interposed claim. On the trial, the evidence for plaintiff made, in brief, the following case: The fi. fa. was levied on the property in dispute March 8th, 1875.

<p>1. Where plaintiff’s declaration claimed damages for the loss of services of her minor son, who was injured on defendant’s road, the further allegation, by way of showing the aggravated nature of the tort, that death resulted from such injuries, does not change the nature of the action so as to make it a suit for the homicide of the son. For the former she could recover; for the latter she could not.</p> <p>2. Where the statement of facts in the declaration amounted to a prima facie case of felony on the part of defendant’s agents, and there was no allegation either that any prosecution had been instituted therefor or that there was good cause for the failure so to do, a demurrer to such declaration was properly sustained.</p>

<p>It is not the office of a rule absolute foreclosing a mortgage, to show expressly on its face, what particular credits were allowed in fixing the amount of the debt, more especially, where the credits are not mentioned in any of the pleadings; and a motion by the mortgagee, made a year after the rule was granted, to amend it for the sole purpose of declaring that a certain credit not pleaded was, in fact, allowed, is irregular and ought to be overruled.</p>

Charge of court. Principal and agent. Statute of limitations. Before Judge Gould. City Court of Augusta. May Term, 1876. The following, taken in connection with the decision, sufficiently reports this case: The court was given a number of requests to charge by defendants’ counsel.

Municipal corporation. Constitutional law. Railroads. Powers. Negotiable securities. Usury. Contracts. Practice in the Superior Court. Charge of court. Before Judge Hall. Spalding Superior Court. August Term, 1875. Inman, Swann & Company brought assumpsit against the Mayor and Council of the city of Griffin, on forty-three bonds issued by said city to the Griffin, Monticello and Madison Railroad Company, aggregating in amount $21,500 00.

Stay-bonds. Lien. Principal and agent. Notice. Claim. Decree. Before Judge Bartlett. Morgan Superior Court. March Term, 1876.

<p>Certiorari. Interrogatories. Before Judge Buchanan. Coweta County. At Chambers. December 13th, 1875.</p> <p>Reported in the opinion.</p>

Administrators and executors. Vendor and purchaser. Lien. Auditor. Practice in the Superior Court. Before Judge Wright. • Upson Superior Court. November adjourned Term, 1875. Francis Reviere, as administrator of Thomas W. Reviere, deceased, filed his bill against James F. White, to enforce the vendor’s lien as against certain land sold to defendant on or about the 2d of October, 1860.

<p>1. On an indictment for maintaining and keeping a lewd house, evidence of the general reputation for chastity of the women frequenting and boarding at the house is admissible.</p> <p>2. Independently of such evidence, the testimony was abundant in this case to sustain the verdict, and the judge was right in refusing to set it aside and grant a new trial.</p> <p>3. On such a trial, a charge that “ the state must prove, to the satisfaction of the jury, that the defendant did keep and maintain a lewd house for the practice of fornication or adultery; that the lewdness must be proven to have been carried on in his house, and with his knowledge and consent, but that it was not necessary to prove that the lewdness was carried on openly and notoriously — if carried on in his house and with his consent privately, that would suffice,” is sound, and submits the law fairly to the jury.</p> <p>4. A fine of $300 00 and costs, or in default of payment within ten days, work in the chain-gang on the public works for twelve months, in view of the facts proven, is not punishment excessive and not commensurate with the offense charged.</p>

<p>Where the plaintiff’s evidence showed that the draft sued on was given by defendants’ agent to him for money advanced with which to purchase cotton ; that said agent notified defendants of the draft and the circumstances under which it was given; that defendants subsequently received the cotton thus purchased, but refused to accept the draft, applying the proceeds of the cotton to a claim in their favor against their said agent:</p> <p>Held, that a non-suit should not have been awarded.</p>

Negotiable instruments. Title. Pleadings. Estoppel. Before Judge McCutchen. Whitfield Superior Court. November Term, 1875.

<p>Landlord and tenant. Lien. Distress warrant. Before Judge Gibson. McDuffie Superior Court. March Term,-1876.</p> <p>Reported in the opinion.</p>

<p>Constitutional law. Trover. Bail. Habeas corpus. Before Judge Gould. City Court of Augusta. At Chambers. February 8th, 1876.</p> <p>Eeported in the decision.</p>

<p>Factors. Negotiable instruments. Bills of lading. Indorsement. Before Judge Hall. Monroe Superior Court. March Term, 1876.</p> <p>Howard filed his bill against Tison & Gordon and Lampkin & Company, to recover the value of certain cotton consigned to the former, and damages for the conversion of the same, making the case presented by the 3d head-note above. The jury found for the plaintiff. Tison & Gordon moved for a new trial upon the following, among other grounds :</p> <p>1st. Because the court erred in charging the jury as follows: “ That the fact that Lampkin & Company may have been indebted to Tison & Gordon at the time the cotton was shipped, and that Tison & Gordon may have appropriated the proceeds of the sale to the payment of such indebtedness, will not estop Howard from setting up claim, although, by his act, they may have been led to believe that the title was in Lamp-kin & Company.”</p> <p>2d. Because the court erred in charging the jury as follows: “If Lampkin & Company did not draw specially on the cotton in controversy, but drew generally, and defendants had cotton sufficient besides this to pay the drafts, then they could not charge up the drafts as advances on this cotton.”</p> <p>The motion was overruled and Tison & Gordon excepted.</p>

<p>1. The right to reduce to possession the distributive share of a wife in the estate of her father, who died before the act of 1866, was a vested right in' the husband, and if he reduced the same to his possession, as his own estate, after the act of 1866, it became his property, and was subject to his debts; - if he reduced it to his possession for her, and as her estate, after said act; and, in consideration of having used it as her property, conveyed to her a tract of land in lieu thereof, the title to the said land is in her, and his creditors cannot condemn the same for his debts.</p> <p>2. A charge of the court, therefore, to the effect “that if the jury believed from the evidence that George S. Haslam, senior, received from the administrator of his wife’s father, after the 13th of December, 1868, any money or notes, that it was her money and not his; and that if in payment of said debt he sold land to her before the judgment of plaintiff in fi. fa., she got a good title, and the property is not subject; that the whole question turns upon the time he received the money or notes from the estate of his wife's father — if before the 13th of December, 1866, it was his; if after that, it was hers,” is too broad, the question being, in the judgment of this court, in what capacity or character did he receive the distributive share' — if as his own, then he reduced it to possession for himself, and the fund so received would not support the deed against creditors; but if he received it as her property, then it would be a valuable consideration to support his deed for the land to her.</p> <p>3. There is some evidence in the record to show that the husband did collect the wife’s distributive share for her, and did so use it for her until he made the deed to her to the land in dispute, in consideration of the debt he owed her for it, and as it is not contradicted, we would be inclined to let the verdibt stand, notwithstanding the charge, but for the fact that the record discloses, from a recital in the fi. fa., that though the fi. fa. was issued in 1875, the judgment was obtained in 1870, three years before the deed from the husband to his wife. Though this recital may be a mistake, yet it is not contradicted, and no diminution of the record was suggested therefore a new trial is ordered, when the principle above indicated will be applied.</p>

■ Ejectment. Title. Evidence. Before Judge Tompkins. McIntosh Superior Court. November Term, 1875. The following, taken in connection with the decision, sufficiently reports this case: Defendant moved for a new trial on the following, among other grounds: Because the court allowed the plaintiff to introduce evidence as follows: The premises in dispute belonged to plaintiff’s wile — were bought with her money.

Stock. Dividends. Sales. Before Judge Bartlett. Bibb Superior Court. October Term, 1875. This is the fourth time this case has been before this court: See 40 Georgia Reports, 408; 43 Ibid., 598; 46 Ibid., 34. The contest here was over the dividends on the railroad stock, which had been paid to the purchasers thereof from Nutting and Cubbedge & Hazlehurst, who held under an illegal private sale made by Usher, as administrator of Wake-man.

<p>i. An indictment for malpractice in office alleged that, at a specified time and place, a possessory warrant was tried before the defendant, a justice of the peace of Chatham county, possession of the property was awarded to the plaintiff, and an execution issued against the defendant therein for costs; that, when the plaintiff demanded possession, the justice refused to deliver the property, had an entry of nulla bona made on the execution, and a levy made oil the property in dispute, although plaintiff offered to point out property belonging to the defendant:</p> <p>Held, that a motion in arrest of judgment, on the ground of faulty pleadings, was properly overruled.</p> <p>2. There was no error in requiring the defendant to produce his docket and such official papers as were relevant to the issue.</p> <p>3. Parol evidence was not competent to prove the contents of such papers, until the production of the original had been sought in the manner prescribed by law, or their .loss or destruction shown.</p> <p>4. The court erred in ruling that the solicitor general had a right to argue that defendant’s unwillingness to produce his official papers was a virtual confession that they would criminate him.</p> <p>5. The jury having nothing to do with the punishment prescribed, the better practice is not to give the law concerning it in charge.</p>

Administrators and executors. Year’s support. Estoppel. Before Judge McCutchen. Bartow Superior Court. February Term,1876. Mrs. Coleman, according to the evidence for the defendant, a few days after her husband’s death, and before the administration upon his estate, turned over certain articles of household furniture, etc., to Gouldsmith in settlement of an indebtedness due to him by the deceased, created in part for such furniture.

<p>Where a grand jury, drawn at a term to which the superior court was adjourned by an order of the judge issued at chambers, to serve at the next regular term, found a true bill and the defendant was arraigned thereon:</p> <p>Held, that a plea in abatement setting forth the above facts, should have been sustained.</p> <p>Jackson, Judge, dissented.</p>

Principal and security. Negotiable instruments. Presumptions. Confederate money. Before Judge Hill. Twiggs Superior Court. October Adjourned Term, 1875. Bonner, as guardian, brought complaint against Woodall, as principal, and Nelson, as security, on a note dated February 18th, 1863, for $2,610 37, payable to plaintiff or bearer, and due on January 1st, 1864. Woodall made no defense.

<p>Evidence. Negotiable instruments. Interest and usury.' Statute of limitations. Before Judge Buchanan. Troup Superior Court. November Term, 1875.</p> <p>The following, taken in connection with the decision, sufficiently reports this case:</p> <p>• McLendon purchased cotton and shipped it to Wilson, Callaway & Company to be sold; the latter advanced money to him for that purpose. Defendant shipped consignments of cotton to plaintiffs, some of which' were not sold immediately. The evidence was conflicting as to whether any instructions were given by defendant in regard to its sale, and whether he was injured by the delay in selling. Two members of plaintiff’s firm, Wilson and Orme, went to defendant’s house to effect a settlement with him, and the drafts sued on were then given.</p> <p>Defendant filed a plea on March 4th, 1869, wherein healleged various overcharges and errors in the account on which the drafts were founded, and that it was understood between the parties, at the time of signing the drafts, that any error in said account should be corrected. The plea also alleged that “in another transaction with said firm, in account rendered, there are manifest errors of interest overcharged.”</p> <p>An amended plea was filed November 21st, 1872, in which, it was alleged that plaintiffs had advanced to defendant $15,000 00; that he had placed in the hands of Orme, on November 27th, 1867, $17,700 00 worth of stock in the Atlanta and West Point Railroad Company, which was to be sold and the proceeds placed to his credit, so as to prevent interest from accumulating against him; that plaintiffs had held said stock till it depreciated in value, before selling it, and that the plaintiffs caused him to pay interest at the rate of one and a half per cent, per month. A statement of these payments was made, (the last being dated May 7th, 1868,) and a set-off was claimed therefor, amounting to $1,750 00.</p> <p>On the trial, defendant testified, substantially, as follows : The payments of usurious interest were as alleged in his plea ; also the errors in the account of plaintiffs. Wilson and Orme came to defendant’s house to effect !a settlement; defendant refused to settle, alleging errors in the charges; they went over a number of accounts, most of the time in defendant’s presence. All three started to defendant’s office; on the road he and Orme walked together, Wilson walking ahead; Orme urged him to sign the drafts, and stated that any errors in the account should be corrected afterwards; with this understanding defendant agreed to do as requested. Arrived at the office, he told Wilson that he would sign the drafts, and did so. Did not examine them carefully; supposed they were in the usual form.</p> <p>Defendant offered to prove by John S. Johnson that soon after he had signed the drafts, he stated that lie had signed them because Orme promised that any errors should be corrected ; that the account was outrageous, and he did not intend to pay it. This evidence was rejected.</p> <p>R. T. Wilson testified, in brief, as follows: Conducted the settlement with defendant. Hearing that the latter was dissatisfied with the account, went to his house in company with Mr. Orme, another member of plaintiffs’ firm. Stated to him that they had come to effect a settlement. He replied that the charges were excessive. Witness, thereupon, proposed to examine the account, item by item, and promised to correct any error which defendant should point out. They made a thorough examination of the account; at the close of it defendant expressed himself satisfied, and agreed to sign t'he drafts. They afterwards went to defendant’s office, he and Orme walking a little behind witness, and the drafts were there signed. Knows nothing of any agreement to correct errors afterwards. Excepting a transaction between Orme and McLendon, which had already been settled by those parties, the drafts were given in full settlement of all accounts between plaintiffs’ firm and defendant, so far as witness knows. [Objected to by the defendant.] The abstract of accounts from the books of plaintiffs, which was used in the settlement, was correct. [Objected to by defendant.] Acceptance was waived in the drafts at the special instance of witness. The object of the waiver was that witness wished to discount the drafts at bank, and make defendant primarily liable thereon, as drawer, instead of plaintiffs, as acceptors; and further, that witness believed defendant would use greater diligence in paying them if he were first liable. [Objected to by defendant.]</p> <p>W. P. Orme testified that he loaned defendant $15,000 00 on behalf of the firm; that defendant gave notes therefor, and placed in the hands of witness certain railroad stock to be sold and the proceeds applied to the debt; that stock was declining, and at defendant’s request it was not sold and his notes were renewed. Finally it was sold and credit given him therefor; there is a balance of $311 00 due defendant on the transaction. Denies agreeing to correct errors after drafts should be signed.</p> <p>The jury found for the plaintiffs $4,370 57. Defendant moved for a new trial on the following, among other grounds:</p> <p>1st. The rulings as to the evidence stated above.</p> <p>2d. Because the court charged, among other things, that if the defendant made payments of usurious interest, he is entitled to set-off the usury against the plaintiffs’ claim, provided that it was pleaded within four years from the date of the last of such payments. *</p> <p>The motion was overruled, and defendant excepted.</p>

Sales. Warranty. Deceit. Notice. New trial. Before Judge Underwood. Floyd Superior Court. January Term, 1876. Taliaferro brought complaint against Larey, alleging, in brief, as follows: On February 1st, 1871, the plaintiff exchanged with defendant a horse for a mule. The horse was worth $125 00. The defendant, knowing the mule to be uusound, falsely and fraudulently stated to the contrary. This statement was made for the purpose of inducing the plaintiff to make the trade.

Judgments. Attorney and client. New trial. Before Judge Tompkins. McIntosh Superior Court. November Term, 1875.

<p>1. Whilst the chancellor may direct the jury to find a special verdict in equity trials, and may direct their attention to particular points of inquiry by written questions, yet those questions should present the main issue clearly and fully to the jury, so that their verdict shall unmistakably speak the exact amount due from the defendant to the complainants.</p> <p>2. If that-amount be not set out in the finding of the jury so certainly that the decree may follow the verdict, and the two harmonize, the verdict must be set aside and a new trial must be granted.</p> <p>3. Where the jury find two sums differing from each other in amount, in response to two of the questions, and it is doubtful whether they intended to charge the defendant with the aggregate of the two sums, or with only one of the two, and in that event, which of the two, the verdict is too uncertain for a valid decree to be entered upon it; and if the chancellor elect one of the sums found and decree accordingly, he becomes the tribunal to determine the amount of defendant’s indebtedness, and not the jury, and the decree is improper; and this applies too, to the mode of counting interest, whether it shall be compo.unded or not, and hence what its sum shall be.</p> <p>4, Where a bill states that the defendant was in possession of certain property of the complainants, as heirs-at-law of their grandfather, who died in South. Carolina, and that he removed the property to Georgia, and recognized the relation of trustee in this state; and where on the trial the facts make a different case, and show that the complainants, by the will of their grandfather, took one-fourth of an estate left by him to their father, who died before the grandfather, and that by the statutes of South Carolina the legacy did not lapse, and that the defendant was the only qualified executor of the grandfather’s estate, and had made a division thereof into four shares, three of which were turned over to the surviving children of the grandfather, the wife of defendant being one of them, and one retained to await the decision on a certain bill in equity filed by defendant, as executor, in Beaufort county, South Carolina, to ascertain, among other things, whether said legacy had lapsed by the death of the father of the complainants ; and that the records were burnt during the war, and the original papers all destroyed, and the case in South Carolina not yet determined, and no effort had been made by the executor to prosecute the bill there, by the establishment of lost papers or otherwise; and where it further appeared that the executor had moved all the assets, which constituted the share of complainants, to Georgia, before the war, and had sold some of the slaves for good money and had hired out others, and had received and used the proceeds thereof, as well as the proceeds of their share of the lands and perishable property sold in South Carolina, and had repeatedly expressed the wish that the estate was settled up, but had wholly refused to account to complainants, who were minors when the proceedings in South Carolina were pending, and yet acknowledged and admitted the reception of the property and its removal to Georgia, and some indebtedness to complainants :</p> <p>Held, that the bill should have been amended so as to charge the defendant as executor, and to set out the substantial facts as proven, before a recovery could be had thereon. The allegata and probata should, in some sort at least, conform to each other.</p> <p>5. The facts proven make a strong case in favor of the complainants, and as the executor has moved the property to which these complainants were entitled, into this state, and converted and used it here, and has wholly failed to prosecute the bill he had filed in South Carolina, or institute any other proceedings to settle up the estate there, he is responsible to the courts of Georgia, and relief will be decreed against him here on the bill properly amended to conform to the facts.</p> <p>6- If complainants, or any of them, had no guardian lawfully appointed before the year 1865 who could sue in their behalf, the right of action did not accrue to such of them prior to that year, and the limitation act of 1869 will not bar them.</p> <p>7. If the executor had himself filed a bill against these complainants, which was pending iri the courts of South Carolina until after 1865, to settle up this estate and account to these complainants for whatever should be decreed them, the right of action, in Georgia did not accrue until after i865( whether complainants were or were not of age, and the act of 1869 does not bar any of them.</p> <p>S. If neither of the above statements be true, and the right of action did accrue before 1865, then these complainants are still not barred if this ex- . ecutor and trustee acted fraudulently and corruptly; but whether he so acted or not is a question for the jury, and those words in the act of 1869 mean more than mere illegal conduct; they mean moral turpitude and intentional fraud, to be passed upon by the jury from all the facts of the case,</p> <p>9. It follows from the above that the decree was improperly entered upon this uncertain verdict, and the judgment sustaining it is erroneous, and must also be reversed.</p>

<p>Principal and agent. Waiver. Insurance. Evidence. Non-suit. Practice in the Superior Court. Before Judge Tompkins. Chatham Superior Court. November Term, 1875.</p> <p>Reported in the decision.</p>

Injunction. Title. Judgments. Trespass. Levy and sale. Marshal. United States Courts. Before Judge Crawford. Muscogee Superior Court. November Term, 1875. Robert A. and William H. Persons filed their bill against William E. Paramore, making, in brief, this case: In the year 1857, one Thomas L. Salter married Susan R. Persons, widow of R. A. Persons, and mother of complainants.

Criminal law. Indictment. Malice. Confessions. New trial. Before Judge Tompkins. Effingham Superior Court. April Term, 1876. The following, taken in connection with the opinion, sufficiently reports this case: The defendant was indicted, tried, found guilty, and anew trial granted. On the 10th of April, 1876, the judge directed the solicitor general to nol. pros, the indictment, and made an entry on his docket that this had been done.

<p>1. The evidence in this case being purely circumstantial (consisting principally of a similarity between the tracks found near the scene of the arson and those of prisoner subsequently measured,) slight in its nature, and not inconsistent with the innocence of the defendant, a new trial should have been granted.</p> <p>2. Where a motion for a new trial is overruled by a different judge from the one who presided at the trial, the weight of the opinion of the latter in support of the verdict, is wanting.</p>

Statute of limitations. Bailments. Tenants in common. Prescription. Evidence. Notice. Before Judge Tompkins. Richmond Superior Court. October Term, 1875. Held: at the time of his death, real estate of the consolidation worth $2,500 00 — known as the “Tan-yard.” Jessup, on the 6th of September, 1867, made entries on his journal and ledger, showing that merchandise to the amount of $6,249 17, was the property of Harral.

<p>Practice in the Superior Court. Sheriffs. Attorney and client. Judgments. Evidence. Before Judge Gibson. Greene Superior Court. September Adjourned Term, 1875.</p> <p>Reported in the decision.</p>

<p>Where the complainant, Poullain, filed a bill, alleging substantially that one Strain, then deceased, and himself, were the only solvent sureties on the bond of Seabroolc, as administrator with the will annexed, of George O. Dawson, deceased; that said administrator had committed a devastavit, and that complainant was threatened with a suit by certain legatees of Dawson to answer for the devastavit; and that Brown had administered upon the estate of Strain, his only solvent co-security; and that Strain’s heirs-at-law, many of them non-residents of Georgia, had recovered a personal judgment against Brown, Strain’s administrator, for a devastavit' he (Brown) had committed on Strain’s estate; and that the same was levied upon all of Brown’s real estate; and that this judgment against Brown constituted all the assets left of Strain’s estate; and that complainant would have to make good Seabroolc’s devastavit alone, unless these remaining assets could be saved so as to make Strain’s estate contribute, and that Brown’s lands would be sacrificed if sold at this time ; and where the prayer was for an injunction to restrain the sheriff and the heirs of Strain from selling Brown’s lands :</p> <p>Held, that this court will not control the discretion of the chancellor in refusing to grant an injunction to restrain the sheriff from selling the lands and collecting the amount of the judgment.</p>

Certiorari. Roads. County matters. Before Judge Gibson. Richmond county At Chambers. March 16th, 1876. The Deutscher Scheutzen Club presented its petition to the judge of the county court of Richmond county, for the opening of a public road which would cross the road of the Summerville Macadamized, Graded or Plank Road Company. Commissioners were appointed who reported that the proposed road was of great public utility, and recommended that it be of the width of eighty feet.

<p>1. Where there are but two witnesses to a transaction and their evidence is irreconcilable, the jury must determine, from all the circumstances connected therewith, which is entitled to the most credit and return their verdict accordingly.</p> <p>2. Where a creditor holds two claims against a debtor, and a payment is made without direction as to its application, .and the creditor makes no appropriation thereof, the law will direct the application in such manner as is reasonable and equitable both as to parties and third persons. Generally the oldest lien and the oldest item in an account will be first paid, but the law is not so imperative as to authorize the jury to be directed to apply the payment to the oldest claim.</p> <p>Jackson, Judge, concurred on special grounds.</p>

Equity. Receivers. Injunction. Sale. Before Judge Kiddoo. Dougherty Superior Court. October Term, 1875. Jeremiah Walters having died whilst this case was pending before the supreme court, his legal representatives were made parties in his stead. The facts are reported in the opinion.

Criminal law. Before Judge Tompkins. Chatham Superior Court. November Term, 1875. The following, taken in connection with the decision, sufficiently reports this case: The state’s evidence made, in brief, the following case: On September 1st, 1875, a case of hats on board a steamer lying at the Savannah wharf, was broken open, and a number taken therefrom.

<p>Administrators and executors. Judgments. Verdicts. Practice in the Superior Court. Evidence. Before Judge Gibson. Richmond Superior Court. April Term, 1876.</p> <p>Levy, ordinary of Richmond county, for the use of Solomon Morris, sued Michael O’Dowd, and the securities on his bond, as administrator of E. H. Gray, deceased. The breach' of duty assigned was the failure of O’Dowd to pay certain notes of one Berckman, indorsed by Gray. The securities filed a demurrer for want of jurisdiction and misjoinder, which was sustained, and the action dismissed as to them, but proceeded as to O’Dowd.</p> <p>O’Dowd filed no issuable defense on oath. There was an admission, through his counsel, after examination of his account, of his personal liability to plaintiff for the amount of $1,527 08, it being conceded that his intestate was indebted to plaintiff on the notes set forth in the declaration, and that. from the amount collected, after payment of expenses and other claims in the course of administration, there was a balance due by him to plaintiff of $1,527 08, for which verdict was then taken by counsel. Plaintiff claimed the whole amount of the notes, to-wit: the sum of $2,000 00, with interest, which claim was resisted, on the ground that, having applied a part of the assets which had come into his hands, as administrator, to the payment of debts of the estate, he was not liable to creditors for the whole amount of said assets. This question, and what proportion of the assets which came to his hands should be applied to plaintiff’s claim, were the issues before the jury. After the testimony of O’Dowd was in, and a calculation made by counsel on both sides, the amount was agreed to be that for which the verdict was accordingly taken.</p> <p>On this verdict judgment was entered the same day against “Michael O’Dowd, administrator of E. H. Gray.” Execution issued accordingly, and was returned September 25th, 1874, with an entry of nulla bona.</p> <p>On September 26th, 1874, suit was instituted in Richmond superior court in favor of Levy, ordinary, for the use of Solomon Morris vs. O’Dowd, principal, and Primrose and Hallahan, securities, on the bond of Michael O’Dowd, administrator of E. H. Gray, in which is assigned as a breach of the bond, the failure to pay the judgment rendered against O’Dowd, administrator of E. H. Gray, June 11th, 1874. At April term, 1875, the docket shows, in the handwriting of the judge, that this case was settled.</p> <p>The fi. fa. issued against Michael O’Dowd, administrator of E. H. Gray, was assigned April 13th, 1875, without recourse, to Solomon Marcus, and levied March 30th, 1876, on one gray horse and wagon, and the stock of goods in the store of Michael O’Dowd, in Augusta, Georgia. On April 7th, 1876, on the petition of Solomon Marcus, the goods were ordered to be sold by the judge of the superior court.</p> <p>On April 14th, 1876, three fi. fas. in favor of McNulty and others against O’Dowd, issued, under judgments of younger date than that under which the levy was made, were placed in the hands of the sheriff, together with the usual notice to retain the money arising from the sale of the stock of goods. The sale did not realize sufficient to pay off the ft. fa. of Solomon Marcus, if valid.</p> <p>On a motion to distribute, the judge held the fi.fa. valid, and ordered the money to be paid over to Marcus, to which ruling McNulty et al. excepted, and assigned error as follows:</p> <p>1st. In considering any evidence other than the record which showed no plea to have been filed.</p> <p>2d. In holding, under the facts admitted as to the trial, that there was such a defense filed or issue joined as required a verdict of a jury instead of an award, and that the same was binding.</p> <p>3d. In holding that the court, under the allegations contained in the writ, had jurisdiction over O’Dowd, so far as to render a judgment against him, either individually or as administrator, which was valid as against other creditors.</p> <p>4th. In holding that the verdict and judgment was a personal one against O’Dowd, and entitled to priority in the distribution.-</p> <p>5th. In holding that the second suit on the bond and the entry of “settled” on the judge’s docket, in nowise affected the validity of the judgment.</p> <p>To the usual certificate, the judge added the following explanation : “ I only decided in this case that the court had jurisdiction, and a plea was unnecessary; that when defendants are represented in court by counsel, and a consent verdict taken, it is good and binding; that if the verdict and judgment rendered was against the administrator upon the admission of assets, it bound him individually, and that the judgment could be enforced against him personally. The entry of a subsequent suit, afterwards commenced against the principal and his sureties, as ‘ settled,’ only affected the suit then pending, and unless payment was shown or to be inferred, the original judgment against O’Dowd was not affected thereby.”</p>

<p>Corporations. Railroads. Contracts. Charge of Court. Negligence. Estoppel. Before Judge Hopkins. Eulton Superior Court. October Term, 1875.</p> <p>Reported in the decision.</p>

Contracts. Lease. Landlord and tenant. Before Judge Tompkins. Chatham Superior Court. February Term, 1876. Arnold, trustee, brought assumpsit against Myrrell, on the covenants contained in a deed of lease of a certain wharf in the city of Savannah.

<p>1. Upon the trial of an issue whether a conveyance of land made by a father to a son shortly before his death, for an alleged consideration of $500 00, and natural love and affection, of which the son had been in possession for many years before such conveyance without payment of rent, was intended as an advancement, or a gift for love and affection, or a sale upon a valuable consideration, it was competent to show that the father returned the land, and paid taxes thereon, for the year in which the conveyance was made, and prior thereto.</p> <p>2. It was also competent to show what was the value of the father’s estate at the time of the conveyance. This fact, taken in connection with the number of his children, tended to illustrate his intention.</p>

<p>Judgments. Executions. Garnishment. Before Judge Johnson. Washington Superior Court. September Adjourned Term, 1875.</p> <p>Reported in the opinion.</p>

Deeds. Inheritance. Equity. Injunction. Before Judge Harris. Camden Superior Court. April Term, 1876. Bailey, as next friend of J. A. Dufour, a minor, filed his bill, making, in brief, the following case: Mary R. Dufour was possessed, by inheritance from her father, (John Bailey,) and bj>- deed of trust from her husband, A. B. Dufour, of an undivided third interest in a certain described lot of land in Camden county, known as the Woodbine plantation..

Attorney and client. Rule. New trial. Before Judge Johnson. Washington Superior Court. November Adjourned Term, 1875.

<p>Practice in the Supreme Court. July Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Contracts. Promissory notes. Statute of limitations. Before Judge Tompkins. Bulloch Superior Court. March Term, 1876.</p> <p>On February 27th, 1875, Harrison, as administrator of Ninian Drummond, brought complaint against Mrs. McClelland, formerly Mrs. Edwards, on the following note:</p> <p>“Charleston, S. C., December 29th, 1867.</p> <p>“Two days after date I promise to pay to Ninian Drum-’ mond, or order, at Charleston, South Carolina, the sum of $326 38, for value received.</p> <p>“ Witness my hand and seal.</p> <p>(Signed) “ Mahalable A. Edwards, [l. s.] “ $326 38. Administratrix.”</p> <p>The defendant pleaded the statute of limitations ; that the note was not given by her individually, but as the administratrix of John P. Edwards; and that it'was given without consideration of any kind moving to her, but merely in renewal of old notes made by her intestate during his life, dated and due before June 1st, 1865.</p> <p>The evidence made the case presented by the two last pleas above set forth.</p> <p>The jury found for the defendant. The plaintiff moved for a new trial upon the following grounds :</p> <p>1st. Because the court erred in charging the jury as follows : “ If you believe from the evidence that the note sued on was made and signed by the defendant as administratrix upon the estate of John P. Edwards, and for no new consideration, but in lieu of certain other notes due by her intestate in his lifetime, and payable before June 1st, 1865, then she is liable (if liable at all on such note) as administratrix, and there can be no recovery against the defendant in her individual capacity.”</p> <p>2d. Because the court erred in charging, that if the note sued on was given in renewal as above stated, and suit was not brought thereon before January 1st, 1870, it would be barred by the statute of limitations.</p> <p>3d. Because the verdict was contrary to the law and the evidence.</p> <p>The motion was overruled and the plaintiff excepted.</p>

<p>Insurance. Suicide. Contracts. Before Judge Tompkins. Chatham Superior Court. February Term, 1876.</p> <p>Mrs. Waller sued out an attachment against the Life Association of America, based on a policy of insurance on the life of her husband, A. R. Waller.</p> <p>On the trial,.the evidence made, in brief, the following case:</p> <p>Waller's life was insured by defendant, for the benefit of his wife or other legal holder of the policy, in the sum of $5,000 00. One of the conditions of the policy was that “ if the insured shall die by suicide during the continuance of this policy, said Life Association will pay to the legal holder of this policy its net present value at the date of such death, as computed by the American Experience Table of Mortality, and four and one-half per cent, interest.” On May 31st, 1875, he died by his own hand, shooting himself in the head with a pistol. In the opinion of witnesses, who knew him well and saw him frequently just before his death, he was insane at that time. The evidences of insanity were numerous; he was alternately melancholy, excited and abstracted; would interrupt conversations by complaints of his troubles, his failure in planting and his disgrace, though, in fact, his planting was generally successful, his financial condition prosperous, and his social and business relations pleasant. Sometimes he seemed unconscious of the presence of others. He frequently said that he was in great pain and could not live long. Two or three weeks before his death, he sent for a friend, stated his expectation of death and asked that the latter would assist his wife in winding up his affairs, though he seemed in no danger. In the course of the conversation, he said that he had dyspepsia, but the real trouble was “ here,” (touching his head) and that there was something wrong on his mind; afterwards he burst into tears without apparent cause. Twice in conversation, when the subject of self-destruction was mentioned, he expressed his abhorrence of it; one of these conversations was within an hour of his death. From Saturday, May 29th, to Monday the 31st, he seemed much disturbed, scarcely ate or slept, was very restless and melancholy. On Saturday night he became frightened by a note which he had received from his employer in regard to one of the plantations which he was managing, had his buggy brought out, and in company with a friend started at a furious pace to the plantation. On the road he changed his mind, and returned home with equal speed. Next morning this friend and another (both being at Waller’s house)-were discussing the state of his-mind and the necessity of having him watched, when he came into the room, and dropped into a chair, saying, “My God! I cannot stand this thing; it will kill me.” Soon after, in company with one of these parties, he drove to the plantation several miles distant, making an appointment to meet the other the same evening. On the road he expressed to his companion the belief that it would be his last ride. The latter said that lie saw no reason why it should be so, unless Waller died by his own hand. He thereupon said that would never be. In less than an hour after, they arrived at the plantation; Waller lay down on a bed; his companion left him for a moment, heard a pistol-shot, returned and found Waller with a pistol in his hand, and shot through the head. liis physician testified that he was subject to malarial fever and dyspepsia, and that the latter disease may produce insanity.</p> <p>Evidence was also introduced to show that the net value of the policy, computed by the American Experience Table, was $109 62.</p> <p>The jury found for the plaintiff $5,000 00. Defendant moved for a new trial on the following, among other grounds:</p> <p>1st. Because the verdict was contrary to law and evidence.</p> <p>2d. Because the court admitted evidence of Waller’s insanity.</p> <p>3d. Because the court charged that “if the jury find from the evidence that A. R. Waller died by his own hand while in a fit of insanity, they must find for the plaintiff in the amount of the policy.”</p> <p>The motion was overruled, and defendant excepted.</p>

<p>New trial. Evidence. Before Judge Bartlett. Greene Superior Court. March Term, 1876.</p> <p>Reported in the decision.</p>

<p>1. After service, appearance, and pleading to the merits, with no other plea, it is too late, at the trial, for the defendant to make objection to the manner in which he has been brought into court, or to the jurisdiction of the court over his person.</p> <p>2. After the sole defendant in an action of ejectment has died, and another defendant has been brought in, and has pleaded to the merits, the action may proceed as to the latter, without making the representatives of the former a party.</p> <p>3. When one of the parties to a special or collateral issue, tried during the pendency of the main case, is now dead, and his representatives are not ’ before the court, the supreme court will not, on a writ of error brought by a person who was not then a party to the case, examine the proceedings had upon the trial of that issue.</p> <p>4. The verdict on an issue of forgery, made up and tried under the Code, section 2712, is no evidence against a defendant subsequently made a party to the ejectment at the instance of the plantiff; more especially, if the plaintiff proceeds against the new defendant for mesne profits, as well as for the premises in dispute.</p> <p>5. An affidavit which was used in the cause, in connection with the issue of forgery, by the original defendant, cannot, solely because it was so used, be read to the jury to affect a defendant who was not then a party, and who did not become a party voluntarily.</p> <p>6. A witness who' read an original record before it was destroyed, may testify that a defective probate (such as now appears on the deed itself) was upon .the record; notwithstanding an official copy, made from the record before destruction, sets forth the deed as recorded without any probate annexed.</p> <p>7. Where both parties claim to have derived title from the same person, the plaintiff through a deed from him, and the defendant through a deed from his administrator, and where the defendant attacks the plaintiff’s deed as a forgery, the last will of such person, duly probated, which disposes of other lands but makes no disposition or mention of the land now in question, is admissible in evidence for the plaintiff, as tending to show non-claim by the testator; the will bearing date later than the deed in controversy. That the will does not expressly declare the intention of the testator to dispose of all of his estate, weakens its force as evidence, but does not render it wholly inadmissible.</p> <p>8. A deed more than thirty years old at the time of trial, is an ancient document, though 'it was under thirty when the suit was commenced. Such a deed, fair on its face, coming from the proper custody, with a defective • probate by one of the subscribing witnesses, whose handwriting, in his attesting signature to the deed itself,' is proved' to be genuine, and with an entry of recording on the deed (also proved to be genuine) made by the clerk who was in office at the time the entry bears date, which date is more than thirty years anterior to the trial, is admissible in evidence, though the other attesting witness is still alive and accessible, and is not examined by the party offering the deed, and though no actual'possession of the land under the deed was ever held, the land haying been vacant when the deed purports to have been executed, and having- remained vacant for nineteen years thereafter.</p> <p>9. If a deed essential to the plaintiff’s title is a forgery, the verdict should be for the defendant.</p> <p>10. Any circumstance which would place a man of ordinary prudence fully upon his guard, and induce serious inquiry, is sufficient to constitute notice of a prior unrecorded deed. And a younger deed, taken with such notice, acquires no preference by being recorded in due time.</p> <p>11. Where a person claiming to be the owner is brought in as defendant to an action of ejectment which was instituted originally against his overseer or tenant then in actual possession, prescription, as a defense to that action, is measured by the length of possession prior to the suit, without adding the time that elapsed from then till the landlord was made a party.</p> <p>12. A defendant in ejectment is not liable for mesne profits taken, prior to his own entry, by those under whom he claims; but if, in accounting for the profits chargeable to himself, he claims credit for improvements made by his predecessors, such improvements must first answer for the profits taken by those who erected them.</p> <p>£3. Where the statute of limitations as to mesne profits (Code, section 3058; 46 Georgia Reforts; 120,) is not pleaded, the account may be taken for the whole period during which the defendant has been in perception of the profits as against the plaintiff’s title.</p> <p>14. Mesne profits will not be denied the plaintiff solely because the defendant, by clearing and improving the premises, has made the premises more valuable than they were when he entered.</p> <p>£5. Unless a request to charge is all legal and pertinent, the court is not bound to give any part of it.</p>

<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 and strongly against the weight of the evidence, unless the record makes it plainly appear that the judge abused his discretion in setting aside the verdict.</p>

Bankruptcy. Injunction. Jurisdiction. Equity. Before Judge Tompkins. Chatham Superior Court. November Adjourned Term, 1875. This case will be found fully reported in 55 Georgia Reports, 546.

<p>New trial. Evidence. Before Judge Hill. Crawford Superior Court. March Term, 1876.</p> <p>Reported in the opinion.</p>

<p>1. Where a bill for account alleges that a full accounting involves the investigation and settlement of several connected matters, and prays for discovery as to all of them; and where the complainants, after obtaining the discovery, amend the bill, striking therefrom one of the matters, (as-to which the discovery made is favorable to the defendant,) the defendant is still entitled to use his answer as evidence, so far as it is responsive to the origginal bill. And the matter stricken from the bill is not put out of the case as to any purpose of defense which it would have subserved had it not been stricken.</p> <p>2. When the complainants have gone behind a discharge granted to an executor by the ordinary, and have obtained discovery from him as to the actual state of his accounts, the executor may insist on having the actual state thereof considered in measuring the relief to which the complainants are entitled in respect to another branch of the case, so fa.r as the accounts are correct and pertinent to the relief prayed for. If the judgment of discharge would have barred either party, each has waived the bar as to this litigation.</p> <p>3. While it is possible for a responsive answer to discredit itself, by. contradictions and inconsistencies, or by gross violations of probability, and while, without such infirmities, it may be overcome by documentary evidence, still, when the court has charged the general rule thatiPo witnesses, or one witness and corroborating circumstances, are required to overcome it, any further charge, if omitted, ought to be requested by counsel.</p> <p>4. When, on the trial of exceptions of fact to the master’s report, the report has been read to the jury by the excepting party, it is before them, not only as pleading, but as evidence.</p> <p>5. In directing the jury on the form of their verdict, it is not error for the court to say, that the jury should find for or against each exception and declare it sustained or not sustained.</p> <p>6. Where the evidence is, that bonds received by a legatee from the executor, were received as bonds, the jury should not be instructed to determine whether they were accepted as “ good money.”</p> <p>7. The turning over, by an executor, to a- legatee, of bonds in which the money of the estate has been legally invested, is in the nature, not of paying a debt, but of surrendering a trust fund. The transaction is not between debtor and creditor, but between trustee and cestui que trust.</p> <p>8. When a legatee receives from the executor bonds in which the funds of the estate have been invested, and gives a receipt for the same as bonds, specifying the number and the amount of each, and the aggregate amount of the whole, the effect of the transaction is simply to discharge the executor from liability for the funds of the estate which were invested in such bonds. The bonds stand in place of what went into them by investment.</p> <p>9. If the bonds were turned over and receipted for as part of the estate coming to the legatee, but were, in fact, not a part of the estate, being, on the contrary, securities in which the executor had invested his own money, and if it does not appear that this fact was made known to the legatee, and that a different price was expressly agreed upon, the executor cannot, in the final settlement of his accounts, take credit for more than the actual value of the bonds at the time the legatee received them, with interest thereon.</p> <p>10. If, during the late war, the executor rightfully applied his own money in paying expenses, he is entitled to credit only for the value of such money, with interest thereon.</p> <p>11. To apportion any account between two debtors, if each is not tobe charged with precisely half, one must be charged with as much more, as the other is with less, than half. No other apportionment is possible. Hence, half of the whole, plus half of the difference, will equal the larger debit; and half of the whole, minus half of the difference, will equal the smaller.</p> <p>12. In refunding over-payments received from an executor, the legatee called to account, responds to him for such part as she received, and is not liable to a co-legatee who received less than she did. And this rule holds when the call to refund is after the death of both legatees, and is made only upon the estate of that one who received the major part. The executor cannot be resisted as to any of that part by showing that the estate of the other legatee has been settled up under a bill in chancery, to which the executor was a psBÉ; that no claim was made or allowed, in that settlement, for any differenLe between the two legatees, in the matter of over-payments ; and that the heirs of both legatees are the same persons.</p> <p>13. If the legatee die before the executor’s claim for over-payments is barred by the statute of limitations, the statute will not run against him while he is administrator upon the legatee’s estate.</p> <p>14. That the administrator inventoried and returned certain property as part of the estate of his intestate, will not affect his right to assert that it was left in his hands in her life-time, with an agreement that it souhl be security for any sum that might be found due him on final settlement.</p> <p>15. There being, in a will, a mixed bequest and devise of specific personalty and specific realty, to the executor, in trust for the sole and separate use of the testator’s two daughters (his only children) during their lives, and at their death, to their children, respectively; the property to be^ubject to the debts of no person, and to be held and managed by the executor until the elder daughter became of age, or married, and then’to be equally divided; and if either daughter died without child or children, such property to revert to, and belong to, the other sister; and at the conclusion of the will, there being a residuary clause, giving directly to the same two daughters, in equal shares when distributed, all the residue of the testator’s estate, of every sort and kind, not disposed of elsewhere in the instrument, the effect of these two clauses of the will, taken together, was to pass out of the testator, at his death, the whole fee in the subject matter of the specific devise, as well as in the subject matter of the specific bluest; and there was left no reversionary interest to descend to his heirs^Slaw.</p> <p>16. Neither of the daughters having married or had children, on the death of the younger after the elder became of age, the deceased transmitted to her heirs no estate in any of the property embraced in the specific devise and bequest; as to that property, the survivor, from thenceforth, stood as if she had been alone, originally, in both clauses of the will. And, upon her death, afterwards, intestate and without children, the whole of said specific property passed to her heirs and legal representatives.</p> <p>17. A devise which was' obviously and necessarily contingent when the will was made, (such as a remainder in behalf of future children) is not, upon failure of the contingency, within the ordinary rule applicable to a void or a lapsed devise; and the residuary devisee will take, instead of the heir-at-law: 3 Maul. & S., 300; 1 B. & Adol., 186; 6 Paige Ch,, 600.</p>

<p>1. Exceptions to rulings not taken in the court below, and not stated as grounds of the motion for new trial, cannot be considered by this court, though set forth in the bill of exceptions. (R.)</p> <p>2. This court will not control the discretion of the presiding judge in granting a new trial on the sole ground that the verdict is contrary to the law and the evidence, unless the record clearly discloses that the law and the evidence required the verdict, and that the judge had thus abused his discretion.</p>

<p>1. Though an attachment commanding the seizure of the defendant’s property, specify, in general terms, of what it consists, still, the officer can levy it only upon property of the defendant, and is not authorized to seize property of the like kind belonging to another person, though the defendant has lately sold it.</p> <p>2. When a commodity is priced, and is to be paid for, by the bushel, though the bargain be for such quantity as will make a cargo for a certain vessel brought by the purchaser to carry it away, the parties may, by mutual consent, upon being interfered with by an officer, stop lading with less than a cargo on board; and in that case, the delivery will be complete as to so much as is actually on board, and under the exclusive control of the purchaser.</p> <p>3. On the facts in evidence, the verdict of the jury was correct, and even if there were slight errors of law committed by the court, there was no abuse of discretion in refusing a new trial.</p>

<p>Damages. Practice in the Supreme Court. Before Judge Crawford. Harris Superior Court. April Term, 1876.</p> <p>Reported in the decision.</p>

Ejectment. Usury. Deed. Bankrupt. Homestead. Judgments. Pleadings. Tender. Debtor and creditor. Before Judge Bartlett. Jones Superior Court. April Term, 1876. Irena S. Barfield and Mary A. Turner brought ejectment to the October term, 1875, of Jones superior court, against Calvin Broach for certain land.

<p>When the bill alleges that the administrator of an estate is seeking to enforce a judgment against the heirs, that the administrator and securities are insolvent, that there are no debts to pay, that the administrator is himself largely indebted to the estate, that the shares of the heirs, whose land is levied on to pay the judgment, are largely in excess of the amount of the judgment, that the notes sued to judgment were for land sold at administrator’s sale and were to be accounted for in general setttlement, but not pressed to collection, that the plea of the heirs to that effect was withdrawn on the assurance that the judgment would merely stand in lieu of the notes, and that the provisions in the notes, one in writing and the other left out by mistake, would in good faith be carried out:</p> <p>JACKSON, Judge.</p>

<p>Bleckley, Judge,</p>

<p>Jackson, Judge.</p>

<p>2. Where the defendant in fi.fa. alleged and swore that he made a contract, before judgment, with the attorney of plaintiff, to take certain accounts of the defendant in payment of the debt, and was told by the attorney that he need not trouble himself more in the court about the case, and that judgment was taken against him notwithstanding the agreement, and that after judgment the plaintiff received the money collected from some of the accounts and thereby ratified the contract, and where the attorney testified to the contrary, that the accounts were not taken in discharge of the debt, but to collect and apply to the debt as far as they wouldjjo, and the accounts themselves show that their sum, if all collected, would not have paid the debt, and tile balance due was neither paid nor tendered, and that all accounts collected had been applied to the debt and credited on the.fi.fa., and no laches was imputed to the attorney or the plaintiff in the collection of the accounts, so that though some were lost by insolvency they were not lost by neglect, and when defendant, himself, swore that the debt of plaintiff was honest, and failed to show that he had been deprived of any legal defense, even if his version of the contract was the true one, or had been injured in any way by the conduct of plaintiff or his attorney :</p> <p>Jackson, Judge.</p>

<p>Bleckley, Judge.</p>

<p>Jackson, Judge.</p>

<p>Jackson, Judge.</p>

<p>Bleckley, Judge.</p>