Volume 58 — Georgia Reports

<p>Equity. Jurisdiction. Fraud. Before Judge Hill. Bibb Superior Court. April Adjourned Term, 1876.</p> <p>Reported in tbe decision.</p>

Estates. Deeds. Before Judge Tompkins. Chatham Superior Court. November Term, 1875. This was ejectment brought by Lawrence, as administrator of his deceased wife, Carrie M. Lawrence, formerly Pooler, daughter of Mfu-y J. Pooler, and as guardian of his minor children by said wife, against Wayne, for a certain lot in the city of Savannah.

<p>Contracts. Partnership. Administrators and Executors. Waifs. Before Judge Wright. Thomas Superior Court. April Adjourned Term, 1876.</p> <p>Eeported in the opinion.</p>

<p>Where a testator, by the third item of Ms will, gave the bulk of his property to his wife during her life, and at her death to be equally divided between her children; and by the eighth item, bequeathed to Ms granddaughter $1,000.00 to be paid to her at the close of his estate, “and $500.00 to be paid to her for her tuition, which will be $1500.00 in all, and if she should depart this life, the money to be returned to the estate</p> <p>Held, that construing the two items together, the testator intended that should his granddaughter die before the close of Ms estate, the legacy lapsed, but if she lived to that time, the money was to be paid to her absolutely and unconditionally. The period fixed for the close of his estate was upon the division of his property among his children, after the death of his wife.</p>

Criminal law. Indictment. Jury. Practice in the Superior Court. Arraignment. Charge of Court. Before Judge Gibson. Richmond Superior Court. April Adjourned Term, 1876. At the April term, 1875, of Richmond superior court, Hayes was placed on trial for the murder of Henry Key.

<p>Injunction. Receiver. Before Judge Hill. Bibb County. At Chambers. March 10th, 1811.</p> <p>James Wilde, Jr., & Co., and other creditors of Charles Wachtel, and of Wachtel & Kohn, filed their bill against the last named parties and S. Waxelbaum & Bro., making, in substance, the following case :</p> <p>In the month of August, 1816, Charles Wachtel, in behalf of himself, and of said firm of Wachtel & Kohn, of which he was a member, applied to complainants, in the city of New York, to sell to him certain goods, etc., to be shipped .to Macon, Georgia. To induce complainants to sell such goods on a credit, he represented that he had a store in Macon, in- which he carried on business in his own name; that the firm of Wachtel & Kohn conducted their business in another store in the same city; that the stock in the two stores was worth about $22,000.00; that there were good debts due the two concerns amounting to about $1,500.00; that they owed about $5,000.00, none of their debts being past due, and that all would be promptly met; that they did not owe S. Waxelbaum & Bro. anything so far as he remembered, though he might possibly owe them $500.00.</p> <p>Relying upon these representations, complainants sold various lots of merchandise to the defendants, Charles Wachtel and Wachtel & Kohn, on a credit. The time given has expired, and compainants have demanded the respective amounts due them, but payment has been refused. The representations aforesaid were false and fraudulent, and were made for the purpose of deceiving and defrauding complainants, and with the view of obtaining goods without paying for them.</p> <p>Said representations were, as complainants have very recently ascertained, false and fraudulent in this: On or about July 5th, 1876, the said Wachtel executed to the firm of S. Waxelbaum & Bro., a mortgage on the goods in his store to secure the payment of a note for $4,738.50; on or about the same date, Wachtel & Kohn executed to the same defendants a mortgage on the stock in their store, to secure the payment of three notes aggregating $4,484.15.</p> <p>Each one of said representations was false and fraudulent. At the time they were made, the stocks of goods could not have been sold for much, if any, more than the debts they then owed. The said mortgages were not recorded until December 9th, 1876. This withholding from record was for the fraudulent purpose, under a collusive arrangement between the defendant, Charles Wachtel, and Waxelbaum & Bro., of enabling the said defendants to procure and retain credit as merchants carrying on business as aforesaid. All knowledge of the existence of either of said mortgages was withheld from complainants, and they had no notice of the same until after the record thereof. The defendants, Wachtel & Kohn, are relatives of Waxelbaum & Bro., which latter firm does a large wholesale and retail business, in the city of Macon, and have business connections in the city of New York. By reason of such relationship, and by reason of their business connections, Waxelbaum & Bro. had favorable opportunities of knowing the condition of defendants, from time to time, and their business dealings with other parties; and had ample opportunity, if they were so disposed, to inform complainants of the existence of the mortgages executed to them as aforesaid, but being in collusion with "Wachtel & Kohn, they not only withheld their mortgages from record, but also concealed the fact that they held such liens, or such debts, against said defendants, from complainants and others.</p> <p>In further collusion with Waxelbaum & Bro., said Wachtel & Kohn, in the month of October or November, 1816, turned over to them goods purchased from complainants, Wilde, J"r., & Co., which goods were offered for sale by Waxelbaum & Bro., in the city of Griffin, at rates considerably below the ordinary retail prices of such goods in that market.</p> <p>The defendants Wachtel and Wachtel & Kohn, are insolvent. When called on for payment, they fail either to pay or to make any satisfactory statement of their condition, and particularly how they became so much more largely indebted than they represented. They are still carrying on business in their respective stores, selling what remains of their said stocks at. retail, and pocketing, or otherwise disposing of, the money received therefor. Complainants fear that they are secretly disposing of portions of their said stocks to Waxelbaum & Bro., or others, and that they will continue to do so, unless restrained, until the whole of their goods and effects are either sold or fraudulently disposed of, before any judgments can be obtained by complainants.</p> <p>Complainants have brought suits at common law, returnable to the April term, 187J, of Bibb superior court.</p> <p>They pray as follows: That Waxelbaum & Bro. be enjoined from taking any steps towards foreclosing said mortgages, and from interfering with, or disposing of, any of the goods in said stores until the further order of the court; that Charles Wachtel, and Wachtel & Kohn, be restrained from selling, or in any maimer disposing of said goods, until the further order of the court; that a receiver may be at once appointed to take charge of and hold said stocks of goods, books of account, and other property and effects in said stores, in order that they may be preserved undisposed of, subject to the decree of the court. As ground for Ue immediate appointment of said receiver, complainants allege that they are unable to state the quantity, kind, or value of said stocks; that the defendants are irresponsible, and claim to be insolvent; that they can easily and secretly send away to confederates and others, and otherwise dispose of, large portions of said stocks without complainants, or the officers of court, being able to ascertain the fact; that complainants believe they will take this course, and thus the restraining order would be in great part, if not wholly, ineffectual.</p> <p>Complainants, waiving all discovery, further pray that the court decree the sale of said goods, and the application of the proceeds in discharge of their debts, so far as the same may go; that said mortgages be postponed, if not set aside as void, to the claims of complainants; that they may have general relief, and that the writ of subpoena may issue.</p> <p>The answers of the defendants deny every material allegation in the bill. The only connection admitted between Waxelbaum & Brother and Wachtel & Kohn, was that Wachtel’s wife and Kohn were cousins of a deceased wife of Solomon Waxelbaum.</p> <p>The allegations in the bill as to the representations made in New York by Charles Wachtel, were strongly supported by numerous affidavits. Affidavits were also read in support of the answers.</p> <p>The chancellor sanctioned the bill, and appointed a receiver. To this ruling the defendants excepted.</p>

<p>1. Where, in the assignment of an order for the payment of money, the assignor agreed, if it was not paid within a definite time by the party to whom it was addressed, that he would pay the amount expressed ux>on its face; to entitle the assignee to recover, it was not necessary to show notice to the assignor of the non-payment at the time specified.</p> <p>2. Evidence of a decrease in the market value of the order between the time specified for its payment and the time-the assignor was notified of its non-payment, was properly excluded.</p> <p>3. The assignee was entitled to recover interest from the time specified for the payment of the order.</p>

Practice in the Supreme Court. New trial. Sales. Delivery. Evidence. Before Judge LIill. Bibb Superior Court. April Adjourned Term, 1876. Maynard brought trover against Elanders & Huguenin for twenty-one bales of cotton. The general issue was pleaded.The evidence presented, in substance, the facts set forth in the third division of the opinion. The cotton was sold by plaintiff to H. G-. Bean & Company, at Forsyth, on' March 8, 1875, for $1,451.53.

<p>1. When a libelous publication does not name the person referred to, but describes him in respect to his former occupation and conduct and size, the opinion of a witness, who testified that he thought that the plaintiff was referred to, and who gave the facts on which his opinion rested, is admissible as evidence. The fact that a reader of the libel thought that it referred to plaintiff, was injurious to him, and the more people who thought so when they read it, the more he was injured by it; the evidence, therefore, especially if supported by reasons for the opinion, was admissible, not only to designate the plaintiff as the party slandered, but in aggravation of the damages.</p> <p>2. In the absence of a plea of justification, or other plea assailing the character of the plaintiff, or putting it in issue, evidence reflecting upon the character of the plaintiff should be excluded.</p> <p>3. It is the duty of the plaintiff in error to see that the whole record is brought to this court; and when the brief of the evidence is agreed to upon condition that an issue, verdict, and judgment thereon, shall be embraced in the brief of the evidence, and it is merely stated that on an issue tried by a jury in the pending case, a verdict was found -that a certain person was agent of the plaintiff in error, such verdict, neither the issue nor the verdict thereon being set out in full, will be construed most strongly against the plaintiff in error, and will be held to mean that the jury found him to be the agent of the plaintiff in error in respect to all matters connected with the case.</p> <p>4. The conduct of this agent in taking charge of the libelous advertisement, in ordering a change to be made therein, and in promising to pay therefor when he received funds of the company charged with publishing the libel, though such conduct transpired after the original publication and the commencement of the suit, is admissible in evidence as an admission by a duly authorized agent for the company, in the course of his business, that it authorized the publication, and on such testimony the company was properly held responsible for the tort.</p> <p>5. A corporation may make a libelous publication; in doing so it must act through an agent, for it cannot act otherwise; and if there be proof that an agent, within the scope of his authority, caused the publication to be made, or acting within the scope of his authority, ratified it after it was made; and if there was evidence that the publication referred to the plaintiff, a verdict for the plaintiff is contrary neither to the law nor to the evidence; and though there may be immaterial errors in the charge of the court, or in his rulings upon the evidence, this court will not control the discretion of the presiding judge in refusing to grant a new trial, the verdict being legal, the damages not excessive, and the evidence sufficient to sustain the verdict.</p>

<p>1. A judgment for money found to be due by a guardian to bis ward, on a settlement before tbe ordinary, must be collected by process of execution. An attachment for contempt, based on tbe failure of tbe guardian to pay sucb judgment, and a return of nulla bona on tbe execution, does not lie.</p> <p>2. Tbe fact that tbe guardian holds property which has been set apart to him as a homestead, does not render tbe proceeding for contempt proper.</p> <p>3. In sucb a proceeding, evidence of tbe insolvency of tbe security on tbe guardian’s bond, would be irrelevant.</p>

Lien. Judgments. Principal and Security. Before Judge Tompkins. Chatham Superior Court. May Term, 1876. Watts & Bro. foreclosed a lien on a saw-mill owned by McLeod & Bro., under the provisions of the act of February 21st, 1873. A levy was made and counter-affidavit filed by McLeod & Bro. Triest & Herman, and George G. Wilson, became securities on the replevy bond.

<p>'Justice Courts. Jurisdiction. Appeal. Certiorari. Before Judge Wright. Rockdale Superior Court. October Term, 1876.</p> <p>Reported in the decisions.</p>

<p>Criminal law. Indictment. Burglary. Practice in tbe Superior Court. Before Judge Hill. Houston Superior Court. November Term. 1876.</p> <p>Beported in tbe opinion.</p>

Promissory Notes. Evidence. Newly Discovered Evidence. New Trial. Before Judge Harris. Wayne Superior Court. March Term, 1876. Surrency brought complaint against Clary as maker, and Easterling as indorser, on a note dated October 21st, 1874, payable ninety days after date to the order of Easterling, for $500.00. Easterling made no defense. Clary pleaded the general issue and failure of .consideration.

<p>1. Where title to property is put in trustees for the use of husband, wife and children, on certain contingencies set out in the marriage settlement, such title in the trustees is not divested by a verdict of a total divorce in favor of the wife, so as to vest the property absolutely in the children, the trustee being no party to the proceeding in the divorce case, and the verdict of the jury being silent in respect to the disposition of the property, although the property was embraced in a schedule (not sworn to) attached to the libel for the divorce; particularly as no judgment or decree of the court was rendered which disposed of the property in any way.</p> <p>2. Where an ante-nuptial deed settled certain property of the wife, vesting the legal title in trustees for that purpose, “in trust, nevertheless, to and for the sole and separate use of the said Margaret Marshall for and during her natural life, not subject to the debts, contracts or control of the said Adelbert, her intended husband, or any future husband, and from and after her death, then in trust to and for the sole and separate use of such person or persons as the said Margaret may, by deed or will, duly executed, appoint; and if the said Margaret should depart this life without making such appointment, either by deed or will, then in trust to and for the husband and children of the said Margaret, should they survive her;” and where the said settlement had been mutilated by tearing off some of the signatures thereto, and a post-nuptial deed had been made by the husband, by virtue of his marital rights, settling the property differently, and the wife had obtained a total divorce from the husband, and had died leaving an only child, and this child, by her guardian, brought a bill in equity to cancel the post-nuptial, and set up the ante-nuptial deed, on the ground that the latter had been fraudulently mutilated by her father in order to make the former deed, and alter the terms of settlement after the marriage; and where the father defended the case by alleging that the ante-nuptial deed wak mutilated and destroyed before the marriage by the trustee, in his presence and that of his wife and the trustee; and where both wife and trustee were dead at the time of the trial:</p> <p>Held, that the husband, the other parties to the settlement in esse at its execution and alleged destruction, being dead, was an incompetent witness to prove the destruction of the marriage settlement; and as he was the only witness to prove its legitimate destruction before the marriage, the decree setting up the ante-nuptial and canceling the post-nuptial deed was right, its original execution having been sufficiently established by proof.</p> <p>3. The deed of settlement thus set up gave the property to the children and husband on two contingencies: first, that the wife and mother made no other appointment; and secondly, that they survived her; and inasmuch as the deed in express terms contemplated not only the defendant then about to marry the wife, but any future husband she might afterwards marry, it must mean by the words “the husband, should he survive her,” some person who should be her husband at her death; and as, after the divorce a vinculo matrimonii, the defendant ceased to be her husband, and at her death was not the husband who survived her, he took nothing in the property conveyed by the deed of settlement.</p>

Garnishment. Attorney and Client. Evidence. Debtor and Creditor. Promissory Notes. Fraud. Before Judge Crawford. Muscogee Superior Court. May Term, 1876. This suit was originally brought in the county court of Muscogee county, and carried: by appeal to the superior court. The other facts are reported in the decision.

<p>Taxes. Money Rule. Judicial Interference. Before Judge Oraweord. Marion Superior Court. April Term, 1876.</p> <p>Kemp, as administrator, ruled tbe sheriff, requiring him to show cause why he should not pay over certain money in his hands to an execution in his (Kemp’s) favor, against Henry N. Hamilton. The sheriff answered as follows:</p> <p>Had placed in his hands an execution in favor of petitioner, against Hamilton, dated September 8th, 1866 ; he did not make the money because there was no property upon which to levy the same except such as had been set apart as a homestead. He did levy an execution issued on September 17th, 1873, by the comptroller general, against Hamilton, former tax collector, principal, and the securities on his bond, upon the property described in the rule nisi. It was sold for $111.00. On the day of sale Tillman & Clements placed in his hands an execution in their favor against Hamilton, issued from the October term, 1870, of Marion superior court. All of these executions are now before the court, and respondent asks its direction as to which is entitled to the fund.</p> <p>The court ordered it jiaid to Kemp, and the comptroller general excepted.</p>

<p>1. The opinion of the plaintiff that the damage from the crushing of his hand, caused by the coupling of cars, was in round numbers ten thousand dollars — the sum he had sued for — was improperly admitted as evidence to the jury. What influence it may have had upon the jury, in making their verdict, cannot be estimated; that it had some influence is certainly quite probable, though the verdict of the jury was three thousand dollars, and not ten thousand dollars, and though no witness but the plaintiff made an estimate of the damage.</p> <p>2. The damage is to be fixed by the jury, according to their opinion derived from facts testified to, such as the loss of the use of such a member of the body as the right hand, the dimunition of ability in a laboring man to make a living after such loss, the pain and suffering caused by the wound, the bill of the physician and the expense of nursing, and all other facts and circumstances connected with the case; and this opinion of the jury should be influenced by the opinion of no witness, given in round numbers, of the amount of the damage, but made up from facts, when capable of proof, of actual damage, and of tlie enlightened conscientious belief of impartial jurors in respect to items incapable of exact proof, such as the feelings, the pain and suffering, of the plaintifE, etc.</p> <p>3. The sayings of the conductor to the fireman at the next station are inadmissible, particularly when offered as evidence for the company.</p> <p>4. There was no error in refusing to charge that ‘ ‘ when a party contracts to perform a service which, from its very nature, is attended with more than ordinary risk, he must take the consequences himself, and can only look to his employers when the latter, through itself or agents, has unnecessarily, improperly, or in an unusual manner, exposed him to danger that ought to have been avoided;” nor in refusing to charge “that the jury should inquire whether a prudent, cautious man, with full use of both hands, could have coupled the cars at that time without injury or accident to himself, and if so, the plaintiff is not entitled to recover.” The questions are the fault of the plaintiff and the negligence of the company, without regard to the nature of the business or the condition of plaintiff’s hands. If the business was very dangerous, the duty was upon both parties to use the more care and diligence; if there was a defect in the left hand of the plaintiff, the defendant should have noticed the patent defect before employing him about such work. In both cases the responsibility was equally balanced, and the general principle of law was unaffected.</p> <p>5. The presumption of law that the plaintiff, being an employee, is without fault, arises only when he is wholly disconnected with duties about the particular business in which he was hurt; when he is a party engaged in the duty in discharging which he is hurt, the onus is upon him to show himself without fault; so soon as he does that, the presumption arises that the other employees engaged with him in the duty were at fault or negligent, and the onus is shifted upon the company to show them without negligence; and this principle reconciles the cases decided by this court, when applied to the facts of each.</p> <p>6. A new trial being granted on the sole ground that the court admitted in evidence the opinion of plaintiff that he was damaged, and ought to recover $10,000, it is considered improper to express any opinion on the merits of the case in respect to the weight of the evidence on the question of fault in the plaintiff and negligence in the defendant, or in regard to the amount of damages, whether excessive or not.</p>

<p>Judgments. Practice in the Superior Court. New Trial. Before Judge Hall. Henry County. At Chambers. May 22d, 1876.</p> <p>Reported in the decision.</p>

Sales. Warranty. New Trial. Before Judge Hill. Bibb Superior Court. April Term, 1876. Lane brought complaint against Falkner & Company, on an itemized account, aggregating $445.00. The defendant pleaded as follows: 1. The general issue. 2.

<p>A bequest for tbe benefit of a slave, in 1857, was inconsistent with, tbe provisions of tbe act of 1818, and void; and tbe will must be construed under tbe law as it existed at that date. This case is fully-covered by Bennett vs. Williams, 46 Ga. 399.</p>

<p>1. Where an execution, based on a judgment obtained in December, 1860, was levied on two lots of land, and the defendant filed an affidavit of illegality upon the ground that the land levied on was set apart to him as a homestead exemption under the law of force in 1864, and that he was entitled to seventy acres of such land, together with the dwelling-house and improvements, not exceeding $200.00 in value, as a homestead for himself and minor children:</p> <p>Held, that such ground of illegality was properly overruled, it not being alleged that the seventy acres of land levied on, including the dwelling-house, had ever been designated and laid off as his homestead exemption.</p> <p>2. An agreement entered upon an execution between the parties thereto, that if certain payments are made at stated times, the judgment and fi. fa. are to be entered satisfied, will prevent the dormancy of the judgment, and constitute a new point from which the statute of limitations will commence to run.</p> <p>8. Discharge in bankruptcy does not relieve the property of the bankrupt from the lien of a judgment not proved in the bankrupt court.</p>

Attorney and Client. Rule. Practice in the Superior Court. Attachment. Contempt. Demand. New Trial. Before Judge Clark. Webster Superior Court. September Term, 18Y6. Bush moved a rule against Smith requiring him to show cause why he should not pay over an amount of money collected by him, as movant’s attorney, on a note made by one King, placed in his hands for collection.

<p>Equity. Mortgage. Contracts. Pleadings. Before Judge Tompkins. Effingham Superior Court. November Term, 1876.</p> <p>Reported in the opinion.</p>

Liens. Judgments. Before Judge Peeples. Eulton Superior Court. April Term, 1876. Neither the bill of exceptions nor the record disclosed what connection Murray had with the property upon which the lien was claimed, nor how he became connected with the transfer of the debt. The facts are fully reported in the decision.

New Trial. Evidence. Deeds. Registry. Notice. Before Judge Kiddoo. Terrell Superior Court. May Term, 1876. Freeman brought complaint against Eaton for lot of land 273, in the third district of originally Lee, now Terrell, county. The defendant pleaded the general issue, and title by in-'escription.

<p>Under the local law of Houston county, no bill for extra costs or extra services in transcribing and indexing the dockets of the superior court, or for a venire, can be lawfully claimed by the clerk of said court, until the same has been passed upon and approved by the county commissioners; therefore, the superior court cannot, by mandamus, compel the county treasurer to pay such costs until they have been approved by said commissioners.</p>

Attorney and Client. Contracts. Evidence. Damages. Before Judge Hill. Bibb Superior Court. April Term, 1816. The following, taken in connection with the decision, sufficiently reports this case: On the trial, the following facts appeared from tbe evidence : Mrs. Ryan kept a small store in Macon. She applied for exemption of personalty, and bad set apart a lot of goods in her store.

<p>1. Suit here against the debtor, and attachment in another state against his property, may proceed at the same time for the same debt.</p> <p>2. Third persons, as creditors of the creditor, may also proceed here by bill against both the creditor and debtor, seize the cause of action as a part of the creditor’s assets, and have it collected by a receiver. These complications furnish no reason for granting an injunction at the debtor’s instance, though he allege that he is not indebted but has a good defense.</p>

<p>The mode of bringing the defendant in court in the county court is the same as in a justice court, and if the summons does not have appended to it a copy of the note or account sued on, it is amendable, and the case should not be dismissed, especially after appeal to the superior court.</p>

<p>Larceny from the house was one of the felonies reduced to misdemeanors by the act of March, 1866, and since that act the solicitor general is entitled to the same costs, in case of conviction, as before.</p>

Equity. Practice in the Superior Court. Practice in the Supreme Court. Before Judge IIill. Bibb Superior Court. April Term, 1876. It is only necessary to state that this case was tried under the provisions of the act of February 23d, 1876, complainants having demanded that only issues of fact should be submitted to the jury.

<p>1. When a case from the justice court is brought by certiorari to the superior court, and the errors complained of are questions of law, the superior court should make a final decision thereon without sending the case back.</p> <p>2. Where the answer of the garnishee admitted the possession of notes belonging to the defendant, but did not admit that he had any of defendant’s money in his possession, and the justice court awarded judgment against the defendant and the garnishee personally, the superior court should have finally decided the case by ordering the judgment against the defendant to stand, and setting aside the judgment against the garnishee personally, and ordering the notes to be brought into the superior court, and proceedings to be had thereon, as directed in section 3305 of the Code.</p>

Continuance. Mistake. Evidence. Before Judge Wright. Rockdale Superior Court. October Term, 1876. Capers Dickson, as administrator of David Dickson, deceased, brought complaint against Benjamin F. Carr, on a note dated September 2d, 18Y2, payable one day after date, to F. W. Sims & Co., or bearer, for $133.00, with interest from the 1st of the preceding November.

Statute of Limitations. Administrators and Executors. Renewal. Before Judge Hill. Bibb Superior Court. April Term, 1876. Elizabeth G-. Edwards, as administratrix upon the estate of James C. Edwards, deceased, brought assumpsit against Albert B. Ross, as administrator upon the estate of Thomas Taylor, deceased, for $11,328.25, with interest from January 1st, 1863.

<p>Promissory Notes. Contracts. Payment. Mortgage. Before Judge Underwood. Polk Superior Court. August Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Levy and Sale. ..Amendment. Decree. Execution. Before Judge Bartlett. Greene Superior Court. September Term, 1876.</p> <p>Report unnecessary.</p>

Contracts. Oliarge of Court. Master and Servant. Before Judge Tompkins. Richmond Superior Court. October Term, 1876. Fleming brought complaint against Echols & Company for $1,100.00, for services rendered as book-keeper and warehouseman from September 1st, 1875, to September 1st, 1876. The defendants pleaded that the plaintiff voluntarily discharged himself; also, a tender of the amount due him for services to the time of such discharge.

<p>Mortgage. Statute of Limitations. Usury. Equity. Before Judge Tompkins. Cbatbam Superior Court. May Term, 1876.</p> <p>Reported in tbe opinion.</p>

<p>Where a jietition for certiorari was sanctioned and filed, but the clerk failed to issue the writ returnable to the next superior court, there was no error in passing an order at the next term that the clerk issue such writ, and that it be served as the law directs.</p>

<p>Attachment. Corporations. Amendment. Before Judge Tompkins. Richmond Superior Court. October Term, 1876.</p> <p>On March llth, 1876, Plant sued out an attachment against the Mississippi Central Railroad Company for $20,-000.00, which was leyied upon two hundred and thirty-seven shares of stock in the Southern Express Company. The suit was based on a promissory 'note for $32,000.00, dated May 2d, 1866, payable tó the order of Plant, president of the-Southern Express Company, and signed “For the Mississippi Central Railroad Company, W. F. Mason, treasurer.” In the declaration which was filed, the plaintiff alleged that the note was admitted to be due on February 5th, 1876, and payment promised in writing. When the case came on to be heard, defendant moved to dismiss the attachment upon the ground that the affidavit upon which it issued did not allege that the Mississippi Central Railroad Company -was a corporation, nor under what law, if any, it was incorporated. The motion was overruled and defendant excepted.</p> <p>The defendant then pleaded as follows:</p> <p>1st. Statute of limitations.</p> <p>2d. Former judgment in favor of plaintiff against defendant, upon same cause of action, in the United States court for the northern district of Mississippi, which was rendered since the commencement of this suit.</p> <p>Plaintiff moved to amend his declaration by adding a count on the aforesaid judgment. To this defendant objected on the ground that the taking of said judgment was a bar to the further prosecution of the case on the note, and that the amendment proposed was a new and distinct cause of action. The court allowed the amendment, and the defendant excepted.</p> <p>Under this ruling, defendant conceded that plaintiff was entitled to a verdict. A verdict was taken, and judgment rendered accordingly.</p> <p>The defendant assigns error upon each of the aforesaid grounds of exception.</p>

<p>Mandamus. Practice in the Superior Court. Before Judge Peeples. Fulton County. At Chambers. March 3d, 1877.</p> <p>Reported in the opinion.</p>

Criminal Law. Bastardy. Practice in the Supreme Court. Practice in the Superior Court. Evidence. Jurisdiction. Before Judge Clark. Webster Superior Court. September Term, 1876. Davis was indicted for bastardy; and on the trial was found guilty. He moved for a new trial on the following, among other, grounds: 1.

Attachment. Judgments. Pleadings. Practice in the Superior Court. Before Judge Peeples. Pulton Superior Court. April Adjourned Term, 1876. On January 2d, 1872, Nicol & Davidson commenced suit by attachment against Kimball. A declaration was filed at the April term, 1872, and at the next succeeding term, on October 26th, 1872, a general judgment was rendered by the court in favor of the plaintiffs against defendant.

<p>Railroads. Damages. Before Judge Tompkins. Chat-ham Superior Court. May Term, 1876.</p> <p>Reported in the decision.</p>

Municipal Corporations. Evidence. Presumptions. Damages. New Trial. Before Judge McCutchen. Bartow Superior Court. July Term, 1876. Emily R. Baker and Caleb Tompkins brought case against Boliver Scofield for damages caused by the overflow of two lots, the property of plaintiffs, such overflow being the result of the construction of a ditch by the defendant, by which he sought to drain his lands. The damages were laid at $2,500.00. The defendant pleaded not guilty.

<p>1. Where the chancellor refuses to grant an injunction on the bill, answers and various depositions of witnesses, showing controversy oh facts, this court will not control his discretion unless it was abused.</p> <p>3. The judgment of the court in dismissing the bill, will not be reviewed on a bill of exceptions brought to this court in the summary mode provided for bringing here judgments granting or refusing injunctions.</p> <p>8. There is no law which will authorize this court to cut a bill of exceptions into two parts, and try one part at this, and the other at another term of this court; the motion to do so must be denied; and as it is the right of both sides to have a speedy hearing on the injunction when brought to this court, the motion to transfer the whole bill of exceptions for return to the next term, must also be denied.</p>

<p>Practice' in the Superior Court. Verdict. Liens. Levy and Sale. Before Judge Clark. Sumter Superior Court. April Term, 1876.</p> <p>The following, taken in connection with the decision, sufficiently reports this case:</p> <p>Wiggins brought trover against Erskine, to recover a certain cotton gin. Defendant pleaded the general issue. At the. trial, it appeared that Erskine claimed title to the gin by virtue of a purchase at a constable’s sale. This sale was made under the foreclosure of a lien in favor of Howard, Phelts & Co., of which firm defendant was a member. The affidavit of foreclosure contained substantially the following allegations: Erskine is a member of the firm of Howard, Phelts & Co., and as such makes this affidavit; they are mechanics and machinists in Marion county, Georgia. Wiggins, of the same county, is indebted to said firm in the sum of $40.00 for repairs and work done on a certain cotton gin which is still in their possession; “ said sum of money is now due and unpaid; demand for payment has been made and refused; ” and now, within twelve months from the time said work and repairing was done, deponent makes this affidavit that an execution may issue.</p> <p>The jury found for the plaintiff the sum of $65.00.</p> <p>Defendant moved for a new trial on the following, among other, grounds: :</p> <p>1. Because the verdict was written on the bail affidavit instead of the declaration; and, not showing the case in which, or the term at which, it was rendered, no legal judgment can be had thereon. The court passed an order allowing said verdict to be transferred from the affidavit to the declaration, and rendered judgment in accordance with it.</p> <p>2. Because the court charged as follows: “ I charge you that you have nothing to do with the foreclosure relied upon by the defendant; he got no title under that sale.”</p> <p>3. Because the verdict was contrary to law, and against the weight of the evidence.</p> <p>Defendant also made a motion in arrest of judgment, the ground of which was the return of the verdict on the affidavit as set forth in the first ground of the motion for new trial.</p> <p>Both motions were overruled, and defendant excepted.</p>

Corporations. Stockholders. Pleadings. Before Judge Ividdoo. Muscogee Superior Court. November Term, 1876.

<p>1. Whenever, from the witness speaking broken English, or otherwise, so as to make his testimony unintelligible to the jury, the presiding judge thinks it necessary, he may have an interpreter sworn to translate the evidence into intelligible English.</p> <p>2. A journeyman shoemaker, working by the job, may refer to the hooks he has kept, as a memorandum to refresh his memory, and may swear to the correctness of his account as taken from the books, his memory being so refreshed, but neither the books nor an extract from them, are admissible as original evidence for the jury.</p> <p>3. Where a running account for a series of years, between the shoemaker and his employer, has been kept, for work on the one hand, and board on the other, neither the general statute of limitations, nor the act of 1869, will bar a suit thereon for any part thereof, so long as the last item of such account is within the limitation; but if there be at any time an accounting and settlement between the parties, monthly or otherwise, whereby the account is sifted and stated, or liquidated either by cash, or note, for the balance due, or the carrying forward of such balance to the next month’s account, such settlement will become a new departure, and the items within the statute will draw without its operation only, that part of the account made since such settlement, with such balance, if any, brought forward.</p> <p>4. It is the duty of the parties in interest to see to it that the whole record is brought to this court; and if any part of the plea or evidence be omitted, though by mistake, and no diminution of the record be suggested in time, and the figures of the record before this court show that the verdict is wrong, one ground of the motion for a new trial being that the verdict is against the evidence, this court must grant a new trial.</p>

<p>Practice in the Supreme Court. Bill of Exceptions. Certificate. January Term, 1877.</p> <p>Beported in the decision.</p>

<p>Statute of Limitations. Trespass. Before Judge Buchanan. Troup Superior Court. November Term, 1876.</p> <p>On October 27th, 1873, Baker brought an action for damages against Boozer, alleging, in substance, as follows:</p> <p>On January 29th, 1868, defendant caused an execution in his favor, against one John House, to be levied on certain personalty, the property of plaintiff. Plaintiff was put to great expense in claiming such property, employing counsel, procuring evidence, attending court, etc.</p> <p>Said claim was determined in favor of plaintiff at the May term, 1873, of the superior court. At the time of such levy, defendant well knew that the property was not subject to the execution, and that the fi. fa. itself was illegal and void, having been sued out for the purpose of harrassing and damaging plaintiff. Damages laid at $500.00.</p> <p>Upon demurrer, the action was dismissed as barred npon its face by the statute of limitations. To this ruling plaintiff excepted.</p>

<p>1. The offense of misdemeanor, under section 4564 of the Code, is not complete until the defendant has failed or refused to give security for the maintenance and education of the bastard child, “when required to do so in terms of the law.” The gist of the offense is the refusal to support the child sworn to be his, thus entailing that expense upon the county.</p> <p>2. “The terms of the law’’require that he be carried before the justice of the peace, and if he then refuses to give security for the maintenance and education of the child, the justice shall bind him over to appear at court, and the solicitor general shall then prosecute him for the offense. The sheriff has no authority to take the bond for his appearance at court, especially out of the county of which he is the sheriff.</p>

Equity. Jurisdiction. Demurrer. Before Judge Mc-Cutoiien. Dade Superior Court. September Term, 1876. The above head-note, with the decision, clearly reports the only point decided in this case.

Criminal Law. Penalty. Attempts. Cattle Stealing. Before Judge Johnson. Jefferson Superior Court. November Term, 1876. Miller was placed on trial for the offense of simple larceny.

<p>1. It is the duty of the landlord, when he rents a tenement to a tenant at full price, to make it suitable for the purpose for which it is rented, unless the tenant knows as much about its condition as he does; and he must, upon notice' of any defect, keep it, by repairs, in such condition as to be suitable for such use.</p> <p>2. The tenant is not the agent of the landlord, in the sense that the latter is responsible for the damages which result to third persons from the illegal or negligent use of the rented premises by the former; the landlord is responsible for any damage which may flow from the defective construction of the tenement or from his failure to keep it in proper repair, but if it be properly constructed and kept by the landlord in proper repair, the tenant alone is responsible for his bad or negligent use of a thing good in itself, and kept good by the landlord, but made bad and working damage by the tenant’s improper or negligent use of it.</p> <p>3. Therefore, if a landlord rent different tenements in the same building to different tenants, and the store-room rented to one tenant is under rooms used as a hotel, rented to another, and immediately over the store-room there is a water-closet properly constructed and kept in proper repair by the landlord, but so improperly or negligently used by the occupants of the hotel as to cause damage to the goods in the store below, the tenant of the hotel is responsible for the damage to his co-tenant of the store-room, and the landlord is not.</p> <p>4. Whether the damage resulted from the faulty construction of the water closet and its not being kept in repair by the landlord, or from the improper use of it by the occupants of the hotel, is a question for the jury, and the evidence being sufficient to authorize a finding in favor of the landlord, this court will not interfere.</p> <p>5. It follows from the preceding propositions, that there was no error in refusing to charge that the landlord was responsible for the conduct of the tenant as his agent; nor was there any error, of which the plaintiff could complain, in charging the jury to “examine the evidence and ascertain if this water-closet was properly constructed, and used, and attended to, and if so, the defendant is not liable. If the water-closet was found to be in bad condition, and not properly attended to, whether by the other tenant or the landlord, the landlord'is liable.”</p>

Continuance. Levy and Sale. Advertisement. Illegality. Evidence. Before Judge Buchanan. Troup Superior Court. May Term, 1876. An execution in favor of Wiley P. Burkes against Wm. M. Boyd, having a transfer thereon to E. S. McEarlin, was levied on certain land as the property of the defendant. The levy was made on January 7th, 1876, and the sale advertised to take place on the first Tuesday in the next month, which came on the first day thereof.

Criminal Law. Witness. Evidence. Charge of Court. Before Judge Tompkins. Chatham Superior Court. May Term, 1876. Brown was placed on trial for the murder of John James, alleged to have been committed on June 11th, 1876. ITe pleaded not guilty. The evidence made, in substance, the following case: The difficulty occurred about six o’clock in the evening, at Paulsen’s store, near the toll-gate, on the shell road leading into Savannah.

<p>Railroads. Principal and Agent. Damages. Torts. Ratification. before Judge Ruci-ianan. Troup Superior Court. November Term, 1876.</p> <p>Reported in tbe opinión.</p>

<p>The answer of an attorney at law to a rule against him at the instance of his client, for money collected, is not evidence for him except so far as responsive to the rule. He cannot discharge himself by setting up a contract with his client appropriating the claim upon which the collection was made, to an indebtedness to him which would otherwise he barred by the act of 1869, especially where the other party to such contract is dead.</p>

Criminal Law. Threats. Presumptions. Evidence. Before Judge Bartlett. Greene Superior Court. September Adjourned Term, 1876. Eulton was placed upon trial for the offense of arson, alleged to have been committed in setting fire to and burning a gin-house. He pleaded not guilty. The evidence, so far as material, was as follows: J. L. West sworn: The gin-house on Mr. Woodfin’s plantation was burned, between midnight and day, on November 12th, 1876.

<p>1. The Confederate States, in the year 1862, if not a de jure was a de facto government, dominant in the state of Georgia, to which any citizen of the state could sell lands and pass the title whilst it was so dominant.</p> <p>2. When Georgia was overpowered hy the federal forces in 1865, and such lands so owned by the Confederate government fell into the hands of the United States hy conquest, the title thereto, hy such conquest, passed into the government of the United States.</p> <p>8. Whilst it is true that before our Code, the law was that an executor could not delegate to an agent the trust confided to him by the testator, to sell the lands of his estate, yet when the executor authorized the agent by power of attorney to make the trade, and prescribed therein the minimum price, and the agent made the deed for the executor, and the executor afterward received the purchase money, these facts vested a perfect equity in the purchaser, and neither the executor, nor the legatees for whom the executor was empowered to act, can recover the lands so sold and paid for, particularly after years of silence and acquiescence.</p> <p>4. When the plaintiff’s own proof showed that the title, though once in himself, had passed out of him, a non-suit was right.</p>

<p>Judgment was rendered on October 17th., 1868. There was a return on the execution, made by the constable, of no property to be found, dated November 3d, 1868. On April 1st, 1876, a levy was made on defendants’ land.</p> <p>Held, that the judgment was dormant.</p>

<p>Possessory Warrant. Parties. Partnership. Before Judge Underwood. Polk Superior Court. August Term, 1876.</p> <p>Philpot, describing himself as one of the firm of the Cherokee Iron Company, sued out a possessory warrant for one bale of cotton, against Lovic Morris, J. T. McClain and A. Huntington. The constable arrested the defendants, but returned that the bale of cotton was not to be found. The magistrate adjudged that the warrant be dismissed as to Huntington; that Morris and McClain deliver to the plaintiff the cotton, and in default thereof that they be committed to the jail of Polk county, and there remain without bail or mainprise until the same be produced and delivered to the plaintiff.</p> <p>Morris and McClain carried this judgment to the superior court by writ of certiorari. The superior court ordered that the certiorari be overruled as to McClain; that he deliver the bale of cotton to the Cherokee Iron Company, and in default thereof that he be committed to the jail of Polk county, and be there confined until said cotton is produced.</p> <p>To this judgment McClain excepted.</p> <p>For the remaining facts, see the opinion.</p>

Claim. Promissory Notes. Statute of Limitations. Deeds. Before Judge Gibson. Hancock Superior Court. October Term, 1874. The motion of claimant,for a new trial, set forth in the opinion, was overruled, and he thereupon excepted. Eor the other facts, see the opinion.

<p>1. A municipal corporation is bound to keep its streets, sidewalks and bridges in a safe condition for travel in the ordinary modes, by night as well as by day, and if it fails to do so, it is liable for injuries sustained in consequence of such failure.</p> <p>2. Though the plaintiff may, in some way, have contributed to the injury sustained by him, yet that will not prevent his recovery if, by ordinary care, he could not have- avoided the consequences to himself of the defendant’s negligence.</p>

Witness. Experts. Evidence. Corporations. Before Judge Kiddoo. Muscogee Superior Court. November Term, 1876.

<p>A widow is entitled to the possession of the mansion in which her husband left her at his death, until dower, ‘or its equivalent, has been assigned her, and this right to its possession is additional to, and independent of, her year’s support.</p>

<p>Dower. Tenancy in Common. Before Judge Weight. Decatur Superior Court. May Term, 1876.</p> <p>Reported in the decision.</p>

Insurance. Evidence. Principal and Agent. New Trial. Before Judge Tompkins. Chatham Superior Court. May Term, 1876.

Evidence. Checks. Debtor and Creditor. New Trial. Before Judge Pate. Pulaski Superior Court. May Term, 1876. The following, taken in connection with the opinion, sufficiently reports this case: Defendant, after testifying that, at the time when the check was given, he had sufficient funds on deposit at the bank to meet the indebtedness, offered to prove that, at the close of the civil war, the bank was generally reputed to be insolvent.

<p>Wills. Estates. Ejectment. Tenants in Common. Before Judge Bartlett. Baldwin Superior Court. August Term, 1876.</p> <p>Reported in the opinion.</p>

<p>A judgment against a garnishee, rendered after a full hearing, will not be set aside, on motion, because of any defect in the testimony to support the judgment, even though that testimony be a judgment against the principal debtor in a justice’s court, which did not show on the face of the proceedings that the justice court had jurisdiction. The judgment against the garnishee is a valid subsisting judgment of a court which had jurisdiction, and in respect to that judgment the case is res adjudicate/,, and the grounds of objection to the defective judgment as evidence, should have been made and settled on the trial which resulted in the judgment against the garnishee, and when he had his day in court.</p>

<p>Criminal Law. Charge of Court. Penalty. Before Judge Tompkins. Chatham Superior Court. May Term, 1876.</p> <p>Reported in the decision.</p>

Costs. New.Trial. Before Judge Clark. Macon Superior Court. December Term, 1876.

<p>1. The principle of the common law, that the right to the easement of light and air passing over another’s land through ancient windows, may be acquired by possession and use, is not applicable to this country, and is rejected by the current of American authority.</p> <p>2. Where an executrix sold a half lot of land, with a tenement thereon having windows opening upon the other half lot, and bought the other half herself at the same sale, she will be estopped from obstructing the passage of light and air through such windows, if those windows were necessary to the admission of sufficient light and air for the reasonable enjoyment of the tenement Which she sold; alit&r, if sufficient light and air can be derived from other windows opened, or which could conveniently be opened, elsewhere in the tenement to make the rooms reasonably useful and enjoyable.</p> <p>3. In dividing the lot between the executrix and the purchaser, there being no dividing fence at the time of the sale, regard should be had to the outbuildings in the rear of the mansion bought by the purchaser, and if the line which his deed calls for divides the lot substantially between his half and that of the executrix, and includes the outbuildings in his rear in his half, and those in the rear of the purchase of the executrix in her half, and the jury find such to be the true line, it should stand, and any obstructions or fences within the purchaser’s side of such line, erected by the executrix, should be removed.</p> <p>4. As the decree of the court perpetually enjoins the executrix from obstructing the rights of the purchaser, without regard to the nature or location of the obstructions, or the necessity of the windows to the purchaser’s tenement to insure the reasonable use thereof or of the rooms lighted by those windows, and as the evidence does not show their necessity, and the jury did not pass thereon, a new trial is granted.</p>

Title. Deeds. Duress. Estoppel. Before Judge Hill. Bibb Superior Court. October Term, 1876. Amanda Bazemore brought ejectment against Azel R. Freeman. Pending the litigation, the defendant died, and his executors, Milo S. Freeman et al., were made parties in his stead. The facts are reported in the decision.

<p>Statute of Limitations. Judgments. Before Judge Peeples. Clayton Superior Court. September Term, 1876.</p> <p>Report unnecessary.</p>

<p>Judgments. Executions. Levy and Sale. Claim. Estoppel. Before Judge Crawford. Muscogee Superior. Court. November Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Complainant alleged that he held an execution against defendant’s intestate; that defendant had caused to be sold by the sheriff certain property under an execution in favor of the estate which she represented; that this property was bid off by one of the heirs as agent for the administratrix, but no part of the purchase money had yet been paid. He prayed that the sheriff be compelled to collect, and the purchaser to pay, the amount of his bid, and that the money be applied to complainant’s ji. fa.</p> <p>Held, that a demurrer to the bill should have been sustained. Complainant’s remedy against the administratrix and her securities, in case she fails to discharge her duty, is ample and complete.</p>

Equity. Continuance. Receivers. Practice in the Superior Court. Before Judge Clark. Macon Superior Court. December Term, 1876.

<p>"Witness. Contracts. Title. Statute of Limitations. Before Judge Clark. Lee Superior Court. March Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Officers. Evidence. Attachment. Equity. Practice in the Superior Court. Mechanic’s Lien. Before Judge Hill. Bibb Superior Court. April Adjourned Term, 1816.</p> <p>Reported in the decision.</p>

<p>Equity. Judgments. lies Adgudieata. Before Judge Hansell. Dougherty County. At Chambers, December 21st, 1876.</p> <p>Reported in the opinion.</p>

<p>Where the only evidence of title in the claimant was a bond for titles from the defendant in fi. fa. to the claimant, and the proof was that no money was ever paid under said bond, and no prescriptive title had ripened in the claimant, and title was proved in the defendant in fi. fa. before he sold to the claimant, and the jury found for the claimant, the court below was right in granting a new trial, and this court will not interfere.</p>

<p>Criminal law. Evidence. Insanity. Jury. Charge of Court. Before Judge Buchanan. Coweta Superior Court. September Term, 1876.</p> <p>Reported in tbe decision.</p>

Mcvndcvmus. Contempt. Judgments. Practice in the Supreme Court. Before the Supreme Court. January Term, 1877. After the judgment of the supreme court was made the judgment of the superior court of Muscogee county in the case of Thweatt et al., vs. Gammell et al., 56 Ga.

<p>Process. Service. Judgments. Amendment. Administrators and Executors. Before Judge Clark. Schley Superior Court. April Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Administrators and Executors. Legacy. Levy and Sale. Judgments. Before Judge Tompkins. Chatham Superior Court. February Term, 1816.</p> <p>Reported in the decision.</p>

Hadley was arraigned on an indictment containing two counts: one for assault- witb intent to murder, tbe other for unlawful shooting. Qn the trial, the evidence for the state was, in brief, as follows: Prisoner owned a.blacksmith shop, half of which he rented to one Ragsdale. He was in the habit of carrying work there to be done, and when he collected the rent, the amount due for such work would be deducted.

<p>Evidence. Yerdict. Before Judge Wright. Mitcbell Superior Court. May Term, 1876.</p> <p>Reported in the opinion.</p>

<p>1. Where one of the defendants, who was jointly interested with many others, in the fi. fa. under which the levy was made, and was the largest stockholder in defendant in fi. fa., forbade the sale by the sheriff, and gave notice that the same was illegal and unauthorized, thus materially depreciating the property, and subsequently became the purchaser, at a price far below the real value, the discretion of the chancellor, exercised in enjoining the completion of the sale by the execution of a deed by the sheriff, at the instance of other joint owners of said execution, whose only hope of collecting the amounts due them was in making the'property aforesaid bring its full value, will not be controlled.</p> <p>2. Stockholders cannot maintain a bill for the protection of corporate property, without alleging a refusal of the corporation to act in its corporate name.</p> <p>3. Inasmuch as the evidence as to whether the amount for which the property was sold, was sufficient to pay off the balance due on the execution, and as to whether the property brought its full value, was conflicting, the discretion of the chancellor in granting the injunction will not be interfered with.</p>

Administrators and Executors. Distribution. Presumptions. Dower. Before Judge Wright. Decatur Superior Court. May Term, 1876. Allen Sloan, as guardian of Eolian A. Sloan, brought ejectment against Allen B. Whitaker for fifty acres of lot of land three hundred and eighty, in the 15th district of Decatur county. The defendant pleaded the general issue. The evidence disclosed the following facts: The lot in dispute was owned by one Samuel Sloan at the time of his death in 1856.

Claim. Courts. Attachment. Before D. M. DuBose, Esq., Judge pro Kao vice. McDuffie Superior Court. September Term, 1816. An execution based on attachment in favor of Wilson, against Jackson eb al., was levied on certain property, and Smith interposed claim. In the county court, from which the execution issued, the property was held subject. Claimant carried the case, by certiora/ri, to the superior court. After argument, the cerbiora/ri was dismissed, and claimant excepted.

Equity. Trusts. Parties. Before Judge Johnson. Jefferson Superior Court. November Term, 1816. The bill in tbis case, was filed by all tbe children of James Stratford and bis wife, Barbara, except Mary A. Hayles, tbe wife of Robert A. Hayles, tbe trustee. Tbe remaining facts sufficiently appear in tbe decision.

Criminal Law. Seduction. Laws. Charge of Court. Practice in the Superior Court. Jury. Before Judge Bartlett. Morgan Superior Court. September Term, 1876. Wilson was placed on trial for the crime of seduction. He pleaded not guilty. The jury found to the contrary. He moved for a new trial upon the following grounds, to-wit: 1.

Criminal Law. Dueling. Indictment. Before Judge Tompkins. Eicbmond Superior Court. October Term, 1876.

<p>Testator provided that his lands should not he sold for distribution, except under certain circumstances, for thirteen years from the date of his will. Before the expiration of this period, the executrix sold at private sale. The heirs at law of the testator, as such, brought ejectment against the purchaser.</p> <p>Held, that plaintiffs were not entitled to recover; for if the executrix did not have authority to make the aforesaid sale, the title remained in her for the purpose of executing the will of the testator, and did not pass to the plaintiffs.</p>

Criminal Law. Perjury. Indictment. New Trial. Before Judge Tompkins. Chatham Superior Court. May Term, 1876. Pennaman was placed on trial for the offense of perjury.

<p>Criminal Law. Bail. Before Judge Pottle. Hart Superior Court. September Term, 1816.</p> <p>Reported in the opinion.</p>

<p>Where land held by the defendant in y?. fa. under bond for titles, no part of the purchase money thereof having been paid, was levied on and sold, the oldest judgment against the defendant will take precedence, in the distribution of the fund realized therefrom, over junior judgments, in favor of the vendors, for installments of the purchase money.</p>

New- Trial. Practice in the Supreme Court. Before Judge Johnson. Screven Superior Court. May Term, 1876. Opie brought case against the Central Railroad and Banking Company for $500.00, damages alleged to have been sustained by reason of the killing of a mare. The jury found for the plaintiff $300.00; The defendant moved for a new trial.

<p>1. 'When the intestate, in consideration that his attorney at law would pay over certain moneys collected, including his collecting fee, agreed that the attorney should have all of his fees, paid out of a certain other note and account when collected, and when the attorney did so pay over his collecting fees and fulfil his part of the contract:</p> <p>Held, that the facts make an equitable assignment of the note and account to the attorney for' payment of his fees, and that on a rule brought against him, by the administrator, for the note and account when collected, he can set ofO his- fees, and the administrator can • only recover the balance, if any, as assets of thg .intestate, and this principle holds though the money on such note and account was not collected until after administration on the estate.</p>

<p>Deeds. Evidence. Pleadings. Prescription. Before Judge Kiddoo. Terrell Superior Court. May Term, 1876.</p> <p>On December '22d, 1869, Evans brought ejectment against John P. and W. 0. Baird, for lot of land number one hundred and twenty-five, in the 12th district .of Terrell county. The defendants pleaded .the general issue, title by prescription, and an equitable plea to the following effect: that the deed made by Henrietta Y. Hart to Eugene Hart, upon which plaintiff relies, was made in fraud of the rights of-creditors under whom the defendants hold, and is fraudulent and void. This last plea was, on motion, stricken, and defendants excepted.</p> <p>As a part of his chain of title, the plaintiff offered in evidence a deed from Alexander Holmes to Eranklin O. "Welch, bearing date May 4th, 1855, purporting to have been executed in the state of Florida, in the presence of two witnesses, and which had been recorded. It was objected that the deed was not properly probated, in this, that neither of the attesting witnesses appeared to have had authority to take an acknowledgment of a deed executed in Florida. Erom the attestation clause alone, this objection would seem to be well founded, but in the certificate of acknowledgment immediately following the attestation clause, Eraneis J. Wheaton, one of the attesting witnesses, certified that he was a commissioner of deeds, etc., for the state of Georgia. The objection was overruled, and the defendants excepted.</p> <p>Plaintiff showed a complete chain of title from the state to himself. One link in this chain was composed of a deed from Henrietta Y. Hart to Eugene Hart, of date 9th of March, 1858; another, of deed from Eugene Hart to plaintiff, of date August 7th, 1866.</p> <p>' The defendants introduced a deed from the sheriff of Terrell county to them, dated November 19th, 1860, covering the premises in dispute, purporting to have been executed by virtue of a sale made under a fi.fa. in favor of one Felix Banks vs. T. Berry and C. P. Sutton, the property having been levied on as belonging to the latter.</p> <p>'William Baird testified as follows: “ Took possession of the premises in dispute in fall of 1858, under O. P. Sutton.” He purchased from the latter paying one-half cash, giving his note for the balance, and taking bond for title. Siztton subsequently absconded, and witness paid the balance of the purchase money to Samuel Lindsay for him. The land was afterwards levied on as the property of Sutton, and sold; it was purchased by witness’ sons, the defendants. Defendants have been in open and notorious possession of the land, paying taxes thereon, and claiming it as their own, since 1858.</p> <p>The defendants offered in evidence an execution in favor of Isabella Smith against Henrietta Y. Hart and 0. P. Sutton, with an entry thereon of a levy upon the property in dispute on August 2d, 1858; also the following entry: “ The above land sold for $77.50. This 3d November, 1858.” (S’g’d) “Hennan Dale, Dept. Sh’ff.” The object of this testimony was to show color of title in defendants. Upon objection, it was excluded, and defendants excepted.</p> <p>The defendants proposed to prove by W. 0. Gill that Henrietta Y. Hart told him about March 1st, 1858, that she was afraid the land in controversy would be sold for a debt against her and Sutton; that she applied to witness to ascertain how she could manage to protect the same from such sale. That she stated she was about to convey it to her son, Eugene Hart, and that shortly thereafter she informed him that she had made such conveyance. That she left the country about that time. That witness drew a deed for her, but refused to attest it because it was fraudulent.</p> <p>Upon objection made, this evidence was excluded, and defendants excepted.</p> <p>The defendants proposed to prove by W. B. Walker that he bid off the land at sheriff’s sale, in the fall of 1858, when it was sold as the property of Henrietta Y. Hart, under an execution against her and C. P. Sutton; that he turned over his bid to Sutton, and the latter went off with the sheriff “ to fix it up.”</p> <p>This evidence was also excluded, and defendants excepted.</p> <p>. The plaintiff proved that Eugene Hart was about ten or twelve years of age - in 1858, when the land was conveyed to him by his mother.</p> <p>The jury found for the plaintiff. The defendants moved for a new trial upon each of the grounds taken in the above exceptions. The motion was overruled, and they excepted.</p>

Equity. Discovery. Practice in the Superior Court. Judge. Before Judge Harris. Chatham Superior Court. May Term, 1876. On January 13th, 1876, Eliza M. Kean, as guardian of her lunatic husband, filed her bill against Henry Lathrop, for an account of the property and assets of her ward, which she charged went into the possession of said defendant at the time her husband became non compos menUs.

<p>Homestead. Levy and Sale. Before Judge Rice. Oconee Superior Court. July Term, 1876.</p> <p>Reported in the opinion.</p>

<p>1. Where a memorandum of the terms of. a settlement was reduced to writing, and handed to defendant’s agent, parol evidence as to its contents is admissible, where such agent testified that he never had had such memorandum, or if he ever had it in his possession, it was lost or mislaid; and this, though no notice to produce -was • • served either on said defendant or said agent.</p> <p>3. The evidence submitted to the arbitrators being conflicting, the award was properly allowed to stand. '</p>

<p>Debtor and Creditor. Principal and Security. Before Judge Pate. Dooly Superior Court. March Term, 1876.</p> <p>Roberts, as administrator, brought suit against Lilly, as security, on a note made by William G. Lewis and said Lilly, dated February 15th, 1870, due December 25th, next thereafter, for the sum of $225.00, with a credit thereon of $100.00, of date November 13th, 1871. The defendant pleaded the general issue, and that he was discharged by reason of indulgence extended to the principal on an execution obtained against him in a separate suit for the same cause of action.</p> <p>The facts disclosed by the testimony are set out in the opinion.</p> <p>The jury found for the defendant. The plaintiff moved for a new trial because the verdict was contrary to the evidence, and to the following charge of the court: “ That if the jury believe that the time was given to the principal upon the promise to pay the debt, or to pay $100.00, this would not release the security, but the time must have been given for an outside consideration.”</p> <p>The motion was sustained, and the defendant excepted.</p>

<p>Where, by inadvertence, counsel fail to enter up judgment on a recovery in an action of trespass vi et armis, within four days after adjournment of the court, the court may, at a succeeding term, on due notice to the defendant, grant an order to enter up the same nunc pro tunc.</p>

<p>Debtor and Creditor. Principal and Agent. Set-off. Before Judge Clark. Webster Superior Court. September Term, 1876.</p> <p>Reported in the decision.</p>

Banks. Bailments. Principal and Agent. Powers. Charge of Court. Before Henry W. Hilliard, Esq., Judge pro hae vice. Muscogee Superior Court. May Term, 1876. Eliza Schley, as guardian, brought trover against the Chattahoochee National Bank, to recover the value of four bonds of the Mobile and Girard Railroad Company, and two bonds of the city of Macon. The defendant pleaded the general issue.

<p>Equity. Bills. Before Judge Clark. Sumter Superior Court. October Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Attachment. Judgments. Practice in the Superior Court. Before Judge Knight. Forsyth Superior Court. August Term, 1876.</p> <p>Reported in the decision.</p>

Trover. Sales. Title. Mortgage. Principal and Agent. Contracts. Bail. Affidavit. Notary Public. Seal. Practice in the Superior Court. Before Judge Clark. Webster Superior Court. September Term, 1876. II. & F. Blandy brought trover against William P. Jowers for one thirty-horse power portable engine, with its necessary tools and equipments, and one heavily constructed wagon for hauling the same. Bail process was sued out and bond given.

<p>Mamdamus. County Matters. Before Judge Clark. Lee Superior Court. March Term, 1876.</p> <p>Reported in the opinion.</p>

Ejectment. Title. Prescription. Before Judge Rice. White Superior Court. October Term, 1816. Catherine D. Castleberry, on March llth, 1816, brought ejectment against Black. Thomas G. Sears was made a party defendant on his own motion. Plaintiff introduced the following evidence: 1. Plat and grant from the state to Mary Castleberry, dated November 15, 1825. 2. Deed from Mary Castleberry to William Castleberry, dated November 22, 1825. 3.

<p>"When a breach of warranty against incumbrances, is set up defensively to an action for the purchase money of land, all the breaches should be assigned that have occurred. After litigating a supposed breach, and failing to establish it, the debtor will not be allowed to enjoin the judgment and renew the litigation to take advantage of another breach which he might, by the use of due diligence, have discovered and pleaded at the proper time.</p>

<p>Mortgages. Levy and Sale. Before Judge Clark. Lee Superior Court. November Term, 1876.</p> <p>Report unnecessary.</p>

<p>Where a motion for a continuance is based on the want of mental capacity in the defendant to take the necessary steps to defend the suit and to plead to the same, and the evidence as to such incapacity is conflicting, the discretion of the court below, exercised in overruling the motion, will not be controlled.</p>

<p>1. In a suit against a railroad company for loss of freight in a car loaded by the plaintiff, but the keys thereof retained by agents of the company, it is not error to exclude from the jury evidence that it was the custom of the company not to be responsible for the conduct of its agents who held the keys, particularly if there was no notice of such custom brought home to the plaintiff.</p> <p>2. Nor, in such a suit, was it error to exclude evidence that when a car is chartered by the company, and loaded and unloaded by the owner of the goods, the company is not responsible for any loss whatever of any of the goods in such car, especially if the company’s agents retain the keys, and thereby control constant access to the contents of the car, and more especially where there was a special contract which fixed the company’s liability. ’</p> <p>3. In the case of a chartered car, as in other cases of carriage of freight, the responsibility of the carrier begins with the delivery to it of the goods and ends with its delivery of them at the place of destination; and in this as in other bailments, after proof of loss, the burden is upon the carrier to show proper diligence; and in such carriage of freights, as in other modes, the presumption of law is against the carrier.</p> <p>4 If there be a special contract, such contract, if legal, will govern; and if the evidence as to the terms of the contract he conflicting, and the jury find for the plaintiff, this court will not interfere, no error of law having been committed by the presiding judge.</p>

<p>Criminal Law. Jurisdiction. Indictment. Evidence. Before Judge Clark. Sumter Superior Court. April Adjourned Term, 1876.</p> <p>Reported in the decision.</p>

Equity. Debtor and Creditor. Garnishment. Before Judge Pottle. Oglethorpe Superior Court. October Adjourned Term, 1876.

<p>Equity. Decrees. Jurisdiction. Parties. Before Judge Pottle. Oglethorpe Superior Court. October Adjourned Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Courts. Jurisdiction. Debtor and Creditor. Before Judge Pottle. Warren Superior Court. October Term, 1876.</p> <p>The following, taken in connection with the decision, sufficiently reports this case:</p> <p>Cox, Hill & Thompson and Kayne, Spring, Dale & Co. brought actions of debt against Stanton in the justice court of the 425th district, G. M. Judgments were rendered for the plaintiffs in each case, and defendant appealed. In the superior court the cases were consolidated by agreement of counsel.</p>

<p>1. Knowingly to misrepresent a blind horse as sound (the horse’s eyes being apparently good), and thereby to cheat and defraud a person swapping for the animal, is to commit the offense of being a common cheat and swindler, under section of the Code 4595.</p> <p>2. The verdict is not contrary to law or to evidence.</p>

<p>Liens. Foreclosure. Pleadings. Before Judge Craweokd. Terrell Superior Court. November Term, 1876.</p> <p>These two cases were argued together. They are reported in the opinion.</p>

Guaranty. Indorsement. Contracts. Evidence. New Trial. Before Judge McCutohen. Bartow Superior Court. July Term, 1876.

<p>Where a joint bond is sued upon by the sheriff, and the process is directed to the sheriff, and is served by him on all the defendants, and where the principal in the bond does not appear or plead, and where the sureties answer at the first term, but file no plea, the court merely entering “answer” on the docket, it is not too late at the second term for the sureties to move to dismiss the case for want of legal process and service, the motion being made before pleading to the merits.</p>

<p>Prohibition. Equity. County Matters. Elections. Before Judge Wright. Dougherty County. At Chambers. January 4, 1877.</p> <p>Reported in the opinion.</p>

<p>1. When the agent of an insurance company omitted to insert in a policy on a stock of general merchandise, permission to the assured to keep kerosene oil and powder in the same building with such stock, parol evidence was admissible to show knowledge of such keeping by the agent.</p> <p>2. Though a policy specify that the application for insurance shall be considered as a warranty, and taken as a part of the contract, yet a misstatement in such application must, in some way, change the nature, extent, or character of the risk, in order to avoid the policy.</p> <p>3. If the charge of the court be not set forth, it will be presumed, in the absence of the refusal of some request to charge, to have covered the principles of law applicable to the case.</p>

Ejectmeut. Title. Prescription. Deeds. Before Judge Rice. White Superior Court. October Term, 1876. Neal McMullin and Thomas P. Neal brought ejectment against Pal Erwin, to recover a certain tract of land in White county. Defendant, besides the general issue, pleaded title by prescription.

<p>Larceny from- the house is defined in section 4418 of the Code, and may he committed of valuable goods in any house. . If the house be a cotton-house, not within the curtilage of the dwelling, house, the crime is punishable under section 4417 of the Code; or if not, certainly after conviction the act is punishable as simple larceny.</p>

<p>1. Where a message is delivered to a telegraph company for transmission, it occupies the legal status of a bailee for hire, and not that of a common carrier ; and if such message be not sent as directed, such company is liable for the damages resulting therefrom, unless it shows that the diligence necessary and appropriate to that peculiar business has been exercised.</p> <p>Wabhek, Chief Justice.</p> <p>2. An agreement that “ the company shall not be liable for errors or delays in the transmission or delivery, or for non-delivery of sucli messages, from whatever cause occuring,” will not relieve it from liability for the damages resulting from its failure to transmit a message by reason of its own gross negligence. Such a contract the law does not recognize.</p> <p>See concurring opinions of Bleckley and Jackson, Judges.</p>

Administrators and Executors. Evidence. New Trial. Before Judge Knight. Lumpkin Superior Court. September Term, 1876. Dowdy brought complaint against Parker, as executor of Riley, deceased, to recover a legacy of $250.00, alleged to have been left to him by the will of the latter.

<p>Liens. Judgments. Evidence. Before Judge Rice. Franklin Superior Courts October Term, 1876.</p> <p>Reported in tbe opinion.</p>

<p>Illegality. Before Judge Underwood. Walker Superior Court. August Term, 1876.</p> <p>Reported-in the decision.</p>

Claim. Evidence. Taxes. Practice in tbe Superior Court. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1876. • An attachment in favor of Iiaire, trustee, against Thomas L. Smith, for $686.15, was levied upon eight bales of cotton on November 26th, 1874. A claim thereto was filed by Charles IT. Smith, and upon the issue thus formed the cause went to trial. The jury found the property subject.

<p>The lien of a judgment upon the lands of the intestate, obtained in his life-time, is not discharged until the lands are fully administered by actual sale. Up to the sale, the sheriff may levy, and if he levy be fore the sale, though on the day of sale, and the administrator and purchaser have notice thereof, the purchaser buys subject to the lien, and the land is still subject to the judgment.</p>

<p>Where the plaintiff was traveling on a free ticket, which had on its back an, indorsement containing certain conditions for his signature, and when he tendered such ticket to the conductor, the latter declined to accept it unless the plaintiff signed such indorsement, and on his refusal either to sign or to pay fare, ejected him from the train, the discretion of the court below setting aside a verdict for $5,000.00 damages, will not be controlled.</p>

<p>Equity. Demurrer. Constitutional Law. Pleadings. Judgments. Before Judge Hill. Bibb Superior Court. October Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Practice in the Supreme Court. January Term, 1877.</p> <p>Reported in the decision.</p>

Practice in the Supreme Court. Certificate. Railroads. Diligence. Before Judge Hill. Bibb Superior Court. April Term, 1876. Perry brought case against the Central Railroad and Banking Company for damages sustained by him, on the track of said company, through the negligence of its agents and employees.

<p>A certiorari not marked "filed in office,” nor ever in the office of thfe clerk of the superior court, nor ever in the possession of the clerk at all, is not an office paper so as to be established by copy, mstcmter, on motion, under section 3980 of the Code. Though sanctioned by the judge at chambers and handed to the plaintiff, it is his private property until it gets to the clerk, and, if mislaid or lost, it can only be established by copy, as any other private property belonging to him.</p>

<p>Equity. Debtor and Creditor. Before Judge Kiddoo. Quitman Superior Court. . May Term, 1876.</p> <p>Eeported in the decision.</p>

Equity. Parties. Corporations. Roads and Bridges. Before Judge Underwood. Floyd Superior Court. July Adjourned Term, 1816.

<p>1. The sufficiency of the bond in attachment cases, in respect to the solvency of the surety, is matter primarily for the consideration of the officer issuing the same, and not for the superior court on the trial of the cause, especially where the defendant has received notice of the suit, and has pleaded to the merits.</p> <p>2. After a party has taken and enjoyed large benefits from an award, it is too late for him to object thereto, on the ground that his agent had no written or other legal authority to bind him by the submission.</p> <p>3. The declaration in attachment may be amended by striking out " Georgia, Decatur county,” and inserting “ Georgia, Early county,” the true venue of the cause being Early county, and the trial pending therein.</p> <p>4. If part of the answer to an interrogatory be read by the party who sued out the interrogatories, he should read at least all of that answer; but if the other side afterwards read all the answers, and the right to conclude the argument does not turn on his being forced to do so, no harm will have been done, and a new trial will not be granted on an error which proved to be harmless.</p> <p>5. One party to the record is not a competent witness to prove transactions touching the issue in the case, between himself and the other party who is dead. If such party be offered as a witness by the other side, and be examined only in respect to matters which did not transpire between the witness and the deceased, while the cross-examination should be full in respect to the matters so inquired about on the direct examination, it should not operate as a license to the party examined to testify to transactions which took place between him and deceased, such as delivery of property, and payment of money, to deceased in compliance with an award, the delivery and payment being vital issues in the case.</p> <p>6. If the agent of the dead party has been examined as a witness in . the case by interrogatories, the other party may testify in respect to transactions between himself and such agent, though the agent be dead at the time of the trial.</p> <p>7. A new trial should not be granted on newly discovered evidence which is not admissible and could not affect the merits of the case.</p> <p>8. The charge to the effect that the whole issue in the case was confined to compliance or non-compliance with the award, and that neither party could go behind it, under the facts of this case, was right.</p> <p>9. The court, in a civil case, may receive the verdict in the absence of the defendant and his counsel, especially if they were called into court before the verdict was received, and did not respond.</p>

<p>A new trial will not be granted on tbe ground tbat tbe verdict does not cover the issues submitted, where the record is so defective as not to show precisely how the case was submitted to the jury, and what was before them when they rendered their verdict.</p>

Railroads. Master and Servant. Negligence. Before Judge Hall. Henry Superior Court. April Term, 1876. Kenney brought case against tbe Central Railroad and Banking Company for $20,000.00 damages. His declaration alleged, substantially, as follows : On February 25th, 18J5, plaintiff was in the employ of the defendant in the capacity of ovejgger of the East Point, section, number 12, Atlanta division, of the defendant’s road.

<p>Criminal Law. Continuance. Jury. Practice in the Superior Court. Before Judge Craweord. Muscogee Superior Court. May Term, 1876.</p> <p>Reported in the opinion.</p>

Equity. Administrators and Executors. Evidence. Witness. Before Jasper N. Dorset, Esq., Judge joro hao vice. White Superior Court. October Term, 1876. Williams, a! administrator of Moses Horshaw, deceased, filed bis bill against Mrs. McClure and others, making, in brief, tbe following case: Complainant and Alonzo L. -Horshaw were administrators upon the estate of Moses Horshaw, deceased, who was the father of the latter. They sold certain property of the estate.

<p>Trusts. Set-off. Contracts. Statute of Limitations. Principal and Security. Debtor and Creditor. Charge of Court. Tender. Scaling Ordinance. Evidence. Before Judge Kiddoo. Dougherty Superior Court. October Term, 1876.</p> <p>On May 8th, 1868, Jeremiah Beall, as trustee for Jesse S. Beall, a minor, brought complaint against David A. Yason, as principal, and John A. Davis, as security, on a note dated June 11th, 1862, signed by said defendants, whereby they, or either of them, promised to pay, twelve months after the date thereof, to William Sanford or bearer, five thousand dollars. The defendants pleaded as follows:</p> <p>1st. The general issue.</p> <p>2d. That the note was given for the loan of Confederate money by the plaintiff to Yason, under an agreement that it was to be paid at maturity in like currency. That such Confederate money was tendered to the plaintiff, at the maturity of said note, on or about June 14th, 1863, but the said plaintiff refused to accept the same. That plaintiff requested the said Yason to keep the money for another year, but said defendant refused to accede to this. That plaintiff then stated that if said Yason would keep said money for another year, and was unable to use it, or lost anything on it, the loss should be plaintiff’s. That upon these terms said Yason retained the money, and not being able to use it otherwise, invested it in Confederate bonds, which he now has, and which are wholly worthless.</p> <p>3d. That at the maturity of said note, the Confederate treasury notes in which it was to be paid, were not worth exceeding $769.20 in gold.</p> <p>4th. That the plaintiff was, at the commencement of this suit, and now is, indebted to the firm, of Yason & Davis, composed of these defendants, in the sum of $903.00, with interest from January 1st, 1868, for professional services rendered as attorneys. That the plaintiff agreed that this indebtedness should be set-off against said note, and that defendants, relying upon this promise, have failed to take any steps to enforce the collection of this counter-claim, until it is barred by the statute of limitations.</p> <p>5th. The scaling ordinance.</p> <p>' Davis pleaded separately, that he was discharged by reason of the facts set forth in the second and fourth pleas above stated.</p> <p>Numerous other pleas were filed, which are deemed immaterial here. ■</p> <p>•The plaintiff introduced his note and closed.</p> <p>. Yason testified, in substance, as follows: The note was given for the loan to him, by Beall, of Confedei’ate treasury notes, with the understanding that this amount was to be repaid in like currency. Beall sent the note, with the money, to Davis, with instructions to have the note signed, with the latter as security, to deliver the money to witness, and to return the note to him. Witness never heard of Sanford in these transactions until the note was presented to him for Ms signature. The first time that Beall was in Albany after the note matured, witness stated to him that he was ready to, pay it. Beall said he had no use for the money, and begged witness to keep it. 'Witness replied that he had no use for.it. Beall begged him to keep it, and do the best he could with it. Witness replied that if he could not do any better with it, he could at least invest it in bonds of the Confederate states. Beall told him to keep the monéy. and do' .the best he could with it, and if he sustained any loss, he would make it all right. -On the faith of this promise, witness' kept the identical money which he then .had on hand, and failing to use it for any advantageous purpose, finally invested it in bonds of the Confederate statesj‘which are now utterly , worthless. This loss resulted from the above agreement; for, liad it not been made, he would not have kept the money and so invested it. Beall neither took the money, nor offered to take it.</p> <p>Davis testified, in substance, as follows: In 1866 Beall was a large cotton buyer, -in Albany, and had a great deal of law business in that vicinity. The defendants, as the firm of Yason Davis, were his attorneys, and he became largely indebted to-them for professional services; Witness presented a bill for these services, when Beall remarked (that there was a settlement to be had between him and Yason in • reference to the note now sued on, and that the amount of the bill so presented should be -credited and allowed in said settlement, so soon as it was agreed upon between them.) Witness stated that he thought the note was paid, to which Beall replied, “No, it is not paid; 'but Yason,-about the time it fell due, offered'to pay it to me in Confederate' money -; - but I refused it, and told him to use the money otherwise, if he could, and if he- sustained any loss in the use of it that I would make it all right.” Witness then stated that if Beall ■ expected anything-' on said note, he would have to get it from Yason, as witness felt that he was under no obligation, either legal or-moral, to pay one cent on it. Beall replied -that there was no • danger of witness being held liable, as'Yason and he were- about to settle it-— the only difference between them being - as to how the note should be scaled.</p> <p>The portion of the above testimony, -in parenthesis, was-excluded by the court.-</p> <p>Barber’s tables were introduced.-</p> <p>Beall testified, in substance, as follows :- In the spring of 1862, Yason made-application to himT'or a loan, saying that he understood that-'William--Sanford,-of-Baldwin county, was a capitalist, had money to lend, and that witness sometimes'negotiated loans-for-him. He stated that he- would make a note, with John A. Davis -as - security, and-witness could take-it'to- Baldwin county with 'him. Witness took the note sued- on, and presented it- to Sanford, who stated that he had about that much money on hand, but there were half a dozen applications for it. At witness’ solicitation he took the note. Yason acknowledged his obligation to witness for the favor, remarking that it would be of much service to him, and that he could use it to great advantage. A month or two before the note fell due, Yason asked witness if he wished the money on the note. Witness replied that Sanford was dead, and he was his executor, and that he did not then need the money. He said that he would like to let the note run until next winter. Witness stated that he might have the indulgence if it was any accommodation to him. Nothing was said about Confederate money in the future, or any probable loss. There was no pledge or promise made; everybody was glad to get money at that time. Yason neither tendered witness the money, nor stated that he had it on hand. In the winter following, witness was in Albany continuously, and Yason manifested no disposition to pay the note. Witness was receiving Confederate money for all debts due the estate. He never did refuse it, even to the time of General Lee’s surrender. Yason knew this. Witness was again in Albany during the succeeding wintér, when Yason had another opportunity of paying the note, In April, 1864, witness funded with Y. G. Rust, of Albany, $10,500.00 in Confederate money, which he had collected in the neighborhood for the estate represented by him, two years after the note sued on matured. The value of the note is $2,500.00 in greenbacks, with interest from date. This is what the plaintiff is entitled to recover. Yason never proposed to pay the amount due on the note, either before or after its maturity. Witness never told Yason to use the money, and that, if it was lost, he would do what was right, or anything else to the effect that he would bear or share the loss.</p> <p>For the purpose of impeaching Beall, the defendant offered in evidence the answers of Rollin D. Mallory to certain interrogatories, to the effect that in the summer of 1862 he borrowed Confederate money from the plaintiff, to be re-paid one year thereafter in like currency. That at the maturity of the note given for this loan, witness offered the plaintiff Confederate treasury notes in payment thereof, but he declined to receive them.</p> <p>This testimony was excluded.</p> <p>The jury found for the plaintiff $625.00, with interest from maturity of note.</p> <p>The defendants moved for a new trial upon the following grounds, to-wit:</p> <p>1. Because the court erred in striking the fourth plea.</p> <p>2. Because the verdict is contrary to the following charges of the court:</p> <p>“ If the jury are satisfied, from the evidence, that said note was given by defendants, the one as principal and the other as security, to Beall for Sanford, for the loan of Confederate treasury notes and interest thereon, and it was the understanding and agreement of the parties to said contract, at the making thereof, that the said sum of $5,000.00 in said note specified, was to be Confederate treasury notes, and that Yason, the principal, at and after the maturity of said note, went to Beall, he then and there being the holder of said note, either as the executor of Sanford, or as trustee of Jesse Beall, and- offered to pay the whole amount due on the same, he, the said Yason, being then and there in possession of a sufficiency of said treasury notes to make the payment, and the said Beall neglected and omitted, or refused to take said notes in payment and discharge of said note, then this was such an act on the part of said Beall, as the holder of said note, as discharges Davis, the security.”</p> <p>“ If Yason did, in fact, offer to pay said money to Beall, as above stated, and Beall did hold and control said note as executor of Sanford, or as trustee for Jesse Beall, under the will of Sanford, and he neglected or refused to take said money when so offered, and, instead of taking the same, persuaded or induced the said Yason not to pay him the money, by promising him that if he did not pay the money and would use-it otherwise, arid sustained loss on it, that then the said Beall-would make it-all right, and Yason, on the- faith o'f this promise, did not pay, but kept the money on such promise, then this was such an act on the part of Beall as discharged Davis from all liability on the note.”</p> <p>3. - Because the court erred - in qualifying the above charges as follows : “ but if the jury should be- satisfied that what occurred in these respects amounted only to a conversation between Yason and Beall as to extension of day of payment, or about its payment, and no such act was done by plaintiff as' charged above, then Davis is not discharged by such conversation.”</p> <p>4. Because the court refused to charge that the facts' set forth in the second division of the charge- presented in the second ground,- constituted such a change of the contract as discharged Davis.</p> <p>5. Because the' court refused to charge- that such facts constituted'a-new contract which would discharge Davis.</p> <p>6. Because the court erréd in charging, after reading the' scaling ordinance of 1865,'that it'was for the jury,'under' the evidence and instructions, to. do • between the parties what- they thought was right and equitable.</p> <p>7. Because' the court ■ erred ' in' charging that if ■ Beall induced Yason not to pay'the note when' it fell' dud-by promising that if he would keep-and invest theinoney otherwise, and loss was incurred, that he would make it' all' right, and Yason, acting on this agreement', invested the'money, as the agent of Beall, in other securities, for Beall, and the same was lost, then' the loss would- be Beall’s,- and the defendants were-discharged ; but if Yason invested the money in’other securities' in’'his own name, and • not that of Beall, then the loss of such securities was not Beall’s, and the defendants were not thereby discharged'.</p> <p>8: Because the court erred in refusing' to charge that if Yason did offer to pay the money, and Beall said' he would not'take it,-then it -was "not necessary for Yason to 'present the money:</p> <p>9. Because the court erred in excluding the answers of Mallory to the interrogatories propounded to him.</p> <p>10. Because the court excluded the evidence of Davis as to account of Yason & Davis against Beall, and to the effect that the latter agreed to pay it in the settlement to be had of the note now sued on.</p> <p>The motion was overruled, and the defendants excepted.</p>

<p>Landlord and Tenant. Claim. Evidence. Before Judge Crawford. Marion Superior Court. October Term, 1816.</p> <p>Reported in the opinion.</p>

<p>Offieei-s. County Matters. Commissioners. Before Judge Tompkins. Chatham Superior Court. February Term, 1877.</p> <p>Reported in the decision.</p>

Levy and Sale. Sheriff. Claim. Practice in the Superior Court. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1876. On January 7th, 1875, an execution in favor of Thomas Amis, for use, against Pendleton S. Fambrough, was levied by the sheriff of Oglethorpe county upon a tract of land situated partly in the said county, and partly in the county of Clarke. A claim was interposed by William T. Fambrough.

<p>. Verdict. Amendment. Principal and Security. Joint and several contracts. Before Judge Underwood. Floyd Superior Court. July Term, 1816.</p> <p>Reported in the opinion.</p>

<p>1. A court of chancery, in this state, has no jurisdiction to compel a domestic corporation to go into a foreign state^and specifically execute a contract, by opening ditches on complainant’s land, keeping the same open to a certain depth', constructing and keeping in repair cattle-guards thereon, and on its failure thus to perform, to enforce that decree by attachment and sequestration of its property in this state.</p> <p>2. Where the same corporation was chartered in two states, whilst, for some purposes, it may be regarded as one entire entity, yet, not for the object above specified. Under the charter granted in this state, the corporation could only contract for the right of way over lands here, therefore the agreement sought to be enforced must have been made with the South Carolina corporation, and specific performance should be decreed by the courts of that state.</p>

<p>Equity. Bankrupt. Jurisdiction. Before Judge Buchanan. Campbell Superior Court. August Term, 1876.</p> <p>In December, 1874, Robert P. Smith filed his bill in the superior court of Campbell county, against Joseph Hornesby, of Campbell county; Ophelia M. Gorman and James M. Gorman, of Coweta county; S. C. Weems, of Spalding county; and W. J. Smith, of Henry county, making, in brief, the following case :</p> <p>On October 17th, 1858, Win. H. Smith, brother of complainant, bought of Joseph Hornesby, land, for $3,000.00, one-half cash, balance to become due on December 25th, 1860. Complainant took transfer of bond by purchase, and gave Hornesby his note for time payment. Was unable to meet note when it matured. Wm. IT. Smith was security thereon. On March 12th, 1866, Hornesby sued this note, and recovered judgment on October 15th, 1866, for principal of $1,605.00, and $652.25, interest to date of judgment. Execution issued on January 12th, 1867.</p> <p>On —• day of-, 1867, complainant filed his petition in bankruptcy. On October 20th, 1867, Hornesby collected from the deputy sheriff of Henry county $792.50, proceeds of complainant’s property sold before application in bankruptcy was filed. On the 14th of November, 1867, Hornesby, combining and confederating with his step-daughter, Ophelia M. Austell, to defraud complainant, took possession of said land and conveyed it to the said .Ophelia for the pretended sum of $2,500.00, and placed her in possession.</p> <p>Subsequently, Hornesby and Weems, assignee in bankruptcy, combined to defraud complainant, and said Weems, for no consideration, conveyed, by written agreement, -to the said Hornesby, all the interest which complainant had in said land. Thereafter, on February 3d, 1868, said Hornesby required W. IT. Smith, security, to settle up the balance due on said fi.fa., and transferred the same to him. On October 7th, 1871, W. IT. Smith, security, transferred tii&fi.fa. to one W. J. Smith, of Henry county, who took the same fully informed of the equity of complainant. About the — day of November, 1871, he caused the same to be levied on said land.</p> <p>On May 2d, 1872, complainant filed his bill in Henry county, alleging aforesaid facts, and that complainant, since date of transfer of bond for titles by Weems, assignee, bas withdrawn from bankruptcy. Prayed relief and injunction.</p> <p>Said bill remained in court until October adjourned term, 1873, at which term it was ordered to be dismissed, because the right of action of complainant was barred by the statute of limitations, and because the superior court of Henry county had no jurisdiction. This judgment was reversed on first ground, and affirmed on last. (See 53 Ga., 182.)</p> <p>Ophelia M. Austell, now Gormon, with her husband, Jas. M. Gormon, have been in possession of said land from November 14th, 1867, to present time, of yearly value, for rent, of $500.00. Complainant is ready and willing to pay the balance of the purchase money due on said execution, and tenders it. The land, if sold with present cloud upon title, will bring comparatively nothing.</p> <p>Prays as follows:</p> <p>1. That W. J. Smith be enjoined from proceeding to sell said land under the aforesaid levy, until a hearing can be had on this bill.</p> <p>2. That the deed made by Hornesby to Ophelia M. Austell be set aside.</p> <p>3. That the transfer of the bond for titles made by Weems, assignee, to Hornesby be vacated.</p> <p>4. That complainant have a general judgment against Hornesby, Ophelia M. and her husband, James M. Gormon, for $3,000.00 for rent.</p> <p>5. That W. J. Smith be decreed to accept the sum of money due on said execution, which is tendered, and to deliver up the same to be entered satisfied.</p> <p>6. That Hornesby be decreed to execute to complainant a good and sufficient warranty deed to the land, and that complainant have a writ of possession for the same.</p> <p>7. Prays subpoena and general relief.</p> <p>Subsequently complainant amended his bill substantially as follows:</p> <p>Since tbe filing of tbe bill, tbe defendants have answered setting up that, at the time said Ophelia M. purchased the land from ITornesby, she had no notice that complainant had any equity in, or claim to, the same. Complainant, therefore, insists that if she purchased in good faith and without notice, that complainant would be entitled to recover of Hornesby the $1,500.00 paid him in the first instance, with interest thereon; also, $792.50 collected by Hornesby on his execution, with interest thereon, less the value of the rents during the period complainant had the same in possession; also, the amount due on said execution, now held by W. J. Smith against complainant, unless the said Flornesby shall, within a reasonable time after the rendition of a decree in this case, procure said execution to be entered satisfied and returned to the proper court.</p> <p>Prays as above indicated, and for general relief.</p> <p>To this bill were attached the following exhibits:</p> <p>1. Execution therein referred to with following entries:</p> <p>(a) Receipt of plaintiff’s attorney for $792.50, amount realized from sale of debtor’s property, of date October 24th, 1867.</p> <p>(5) “ Griffin, Ga., December 25th, 1867.</p> <p>“ This execution settled this day by mutual consent, with the exception of $158.00 now due and unpaid on ÜAsfi.fa.</p> <p>[Signed] “Samuel O. Weems,</p> <p>“ Assignee.</p> <p>“ F. S. FrroH,</p> <p>“ Attorney for Hornesby.”</p> <p>■ (c) “ This balance settled by W. H. Smith, security, February 3d, 1868.</p> <p>• [Signed] “Joseph Hornesby.”</p> <p>(d) “ I, W. H. Smith, security, transfer the within fi. fa. to W. J. Smith, without recourse on me. This October 7th, 1871.</p> <p>[Signed] “W. H. Smith.”</p> <p>2. Deed from Hornesby to Ophelia M. Austell.</p> <p>3. “ District Court of United States,</p> <p>“ Eor Northern District of Georgia,</p> <p>“ Griffin, November 27tli, 1867.</p> <p>“ In person appeared before me, Alexander Murray, register, Eobert P. Smith, who being duly sworn, saith, that since he filed his application in bankruptcy, he has lost a note for $21.00, signed by Mr. Leak, which is embraced in schedule JB, a, a part of the assets mentioned, and that he has been unable to find it. Deponent further swears that the bond of Joseph Hornesby, of Campbell county, as described, was also taken, or mislaid, during the Sherman raid, and he has been unable to find it. “ Eobert P. Smith.</p> <p>“Sworn to and subscribed before me this 27th November, 1867. “ Alexander Murray,</p> <p>“ Eegister in Bankruptcy.”</p> <p>“At Griffin, on the 2d of December, 1867, this day, I transfer to Joseph Hornesby, of Campbell county, in lieu of a bond held by E. P. Smith, the above indenture. Said bond was given by Joseph Hornesby to "W. H. Smith, and transferred by him to Eobert P. Smith.</p> <p>[Signed] “Samuel C. Weems, Assignee.”</p> <p>On demurrer, the bill was dismissed as not entitling complainant to the relief prayed for, or any other.</p> <p>To this ruling complainant excepted.</p>

<p>Justice Courts. Jurisdiction. Constitutional Law. Damages. Torts. Before Judge McCutchen. Whitfield Superior Court. October Term. 1876.</p> <p>Eeported in the opinion.</p>

<p>1. It is error for the court to assume, in its charge, a state of facts not shown hy the evidence.</p> <p>2. Where an administrator de bonis non, cum testamento annexo, in defense to a hill for account and settlement hy the legatees, sets up that he, in good faith, received Confederate money for debts due the estate, and that it had become valueless, the facts and circumstances under which such money was received must he clearly and satisfactoria shown.</p>

Statute of Limitations. Corporations. Banks. Stockholders. Before Judge Hill. Bibb Superior Court. October Term, 1876. In December, 1869, certain holders of the bills of the Manufacturers’ Bank (the present defendants in error), brought their several actions at law against the said bank, to compel payment of said bills.

<p>Criminal Law. Witness. Practice in the Superior Court. Evidence. New Trial. Yerdict. Before Judge Underwood. Polk Superior Court. August Term, 1876.</p> <p>Reported in the opinion.</p>

Contracts. Corporations. Evidence. Presumptions. Before Judge Tompkins. Chatham Superior Court. May Term, 18'76.

Criminal Law. Evidence. Principals. Accessories. Charge of Court. Before Judge Wright. Dougherty Superior Court. October Term, 1876. Minor was placed upon trial for the offense of simple larceny, alleged to have been committed in the stealing of a cow. He pleaded not guilty. The jury found him guilty. He moved for a new trial upon the following grounds, to-wit: 1.

<p>1. An alias or copy fi. fa., was established or issued by the clerk, by the judgment oí the court, in 1867, and levied in 1868, and the property claimed; in 1874 a motion was made by claimant, with the defendant inj^. fa. joined as a party thereto, to quash the fifia., because it was in the name of the deceased plaintiff, and the executor was not made a party to the judgment.</p> <p>Held, that the motion came too late.</p> <p>2. The fi. fa., though called an alias fi. fa., and though dated at a different time from the original, and signed by a different clerk, is in effect a copy, and may be established by order of the judge as a copy, and issue, on motion of the executor, in the name of the tes- ■ tator.</p>

Administrators and Executors. Equity. Injunction. Before Judge IIansell. Dougherty County. At Chambers. December 21, 1876. Wessolowsky, administrator de bonis non of Matthew Brinson, in 1874, filed his bill to marshal the assets of the estate of the deceased. A decree was rendered subjecting the land to sale to pay the debts of the estate; and it is to enjoin such sale that the present bill was filed. The other facts of this case are reported in the decision.

Husband and Wife. Torts. Pleadings. Charge of Court. Before Judge Crawford. Talbot Superior Court. September Term, 1876. Mrs. Cottingham brought trespass against Weekes for $10,000.00 damages, alleged to have resulted from the unlawful killing of her husband, James D. Cottingham. The declaration did not aver any prosecution for the criminal offense. The defendant pleaded as follows: 1. The general issue. 2. That in the killing of said Cottingham he acted in self- defense. 3.

<p>Criminal Law. Evidence. New Trial. Before Judge Crawford. Muscogee Superior Court. May Term, 1876.</p> <p>The following, taken in connection with tbe opinion, sufficiently reports the case:</p> <p>. The defendant was indicted for the offense of assault with intent to murder, and found guilty. He moved for a new trial on the ground that the verdict was contrary to the evidence, and without evidence to support it.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Principal and Agent. Ratification. Before Judge Gibson. Richmond Superior Court, j "October Term, 1876.</p> <p>Reported in the decision.</p>

<p>1. A written agreement, " to retire from the business of purchasing, in the Savannah market, green hides, sheep-skins and hides, and skins dried by butchers, forever,” and to “use (they and each of them) their influence in favor of ” the other party, to whom they transferred their good will, and the good will of each of them, in and to said business, in consideration of one hundred dollars per month for and during the term of two years, and three-eights of one per cent, per pound on all green hides up to thirty thousand pounds, purchased in the Savannah market, is not an illegal contract, as being in general restraint of trade, and therefore contrary to public policy.</p> <p>2. On proof of loss of the original agreement, and the correctness of a copy, the copy may go to the jury as evidence.</p> <p>3. The meaning of the words, “ in the Savannah market,” being in dispute, and ambiguous, it was right to admit parol evidence to explain their true sense as ordinarily used in Savannah — whether limited to the Savannah market-house or the Savannah market in its commercial sense — and on the evidence, the question was properly left to the jury.</p> <p>4. The damages for violating the contract having been rixea in the agreement at $5,000, it being therein written that the sum was " not to be considered in the nature of a penalty, but as stipulated and liquidated damages,’ —and the jury having passed upon the ‘mestions of fact, and die law having been ruled substantially correctly this court will not control the discretion of the presiding judge in overruling the motion for a new trial.</p>

Attorney and Client. Witness. Production of Papers. Evidence. Before Judge McCutchen. Gordon Superior Court. March Term, 1876. This was ejectment by Harrell, as executor of Jesse Harrell, against Dover et al., for a lot of land in Gordon county. In the course of the trial, counsel for plaintiff asked permission of the court to examine Reuben Arnold, Esq., of counsel for defendants, as to what papers or deeds he had in his possession.

<p>1. There can be no valid sale or mortgage of a portion of a crop not planted; therefore, an obligation dated the 25th of December, 1874, to deliver certain cotton of the next year’s crop — the crop of 1875— passed no title to the obligee.</p> <p>2. Delivery to the carrier is delivery to the consignees, but not to a thii'd party to whom the cotton was not consigned; and though its proceeds were intended to be applied to such third party, and he was to sell the cotton and pay a note due to him, yet, if the cotton be attacbed before delivery to tbe third party, and while in possession of the consignees, who are the factors and commission merchants of the consignor, the title is still in the consignor, subject only to the commissions and claims of such factors, and the attaching creditor of the consignor will subject the cotton to his judgment debt in preference to the claim of such third party.</p>

Criminal Law. Severance. Continuance. Indictment. Election. Verdict. Jury. New Trial. Newly Discovered Evidence. Before Judge Buchanan. Douglas Superior Court. Januaiy Term, 1876. When the case against Stewart, Sisk and Clinton was sounded, all three of the defendants announced ready for trial. The solicitor general moved the court to try the defendants separately, and announced that he would first place Stewart on trial.

<p>1. A plea of usury in defense to the foreclosure of a mortgage, which showed that the mortgage was made in January, 1874, to secure a note made in 1871, and due in 1875, the note only bearing 7 per cent, interest, and the mortgage providing for 10 per cent, after the maturity of the note, is bad, there having been no law against usury in 1874 in this state, and no allegation in the plea that the increased interest was without consideration, and the seal of the mortgage importing a consideration.</p> <p>2. A plea that the consideration of the note was certain lots of land, one of which, worth $800.00, was omitted from the deed to defendant, though specified in the bond for title, which deed was accepted by the defendant, to have the deed reformed, or to set off or recoup the $300.00, is bad, unless it alleges that it was left out by fraud, accident, or mistake, or at least without the consent of the party who accepted the deed.</p>

Negotiable Instruments. Contracts. Before Judge Hall. Spalding Superior Court. February Term, 1816. A verdict having been rendered in favor of the City Bank of Macon against the Mayor and Council of Griffin for the principal and interest of the bonds sued on, the latter moved for a new trial upon the following, among other, grounds: 1.

<p>Deeds. Evidence. Ancient Documents. Before Judge Eiddoo. Dougherty Superior Court. October Term, 1876.</p> <p>Reported in the opinion.</p>

<p>1. A written agreement to divide lands owned or claimed in common, though made by the administrator of one of the tenants in common, without an order from court for the partition thereof, is admissible in evidence as color of title.</p> <p>2. Though the description in said agreement be not as clearly expressed as it might be, yet when it contains certain indicia by which a surveyor can ascertain the dividing line agreed upon, the paper is evidence of color of title to the extent of the true dividing line; and where that line, under said written agreement, actually was, is a question for the jury, to be fixed from all the evidence, including that of the surveyor who ran the line according to the agreement, though he did so long after the agreement to divide was made.</p> <p>8. Seven years’ possession of the land up to the line agreed upon, by the party who made the agreement and those who hold- under him, is sufficient title to recover in ejectment.</p> <p>4. Disputed lines between adverse claimants of land, and questions of where old fences stood in the past, and how long they stood in certain localities, are peculiarly questions of fact for the jury; and where the evidence is conflicting, and the presiding judge is satisfied with the finding, this court will not interfere, unless a strong and clear case of wrong to him be made to appear plainly by the plaintiff in error.</p> <p>5. Newly discovered testimony, consisting of deeds on record affecting the very lands in dispute, will not warrant the granting of a new trial; such records are always accessible to both parties, and diligence would examine and procure them in time for the trial; especially is this rule applicable when it does not appear by affidavit, that the movant and his counsel were ignorant of the existence of such deeds at the trial.</p>

<p>1. A suit against a municipal corporation for damages, on account of removing the earth and gravel in the street fronting his lot for the purpose, not of grading the street,hut of filling up other streets, may he maintained, and a demurrer to a declaration for such damage was properly.overruled hy the court.</p> <p>2. .All charges of the court in respect to the grading of the street, either as to its being left in an incomplete condition or otherwise, were outside of the issue made by such a declaration, and might have misled the jury, the sole issue, on the declaration, being whether the dirt and gravel were moved to grade the street, or to improve other streets without regard to the grading of the street whence the dirt was taken, and damage therefor.</p> <p>8. If other causes of action, either in respect to the incomplete grading of the street or other matter in respect to the grading thereof existed, then they should have been declared upon and put in issue; otherwise, evidence in respect thereto and charges thereon, should have been excluded and omitted.</p> <p>4. As a general rule, injury to the property of the owners of real estate fronting on streets in cities and towns, by reason of legitimate and reasonable grading thereof, is “ damnum absque injmia ; ” 23 Ga., 402 ; 28 Ga., 46; but whether under the amendment of the charter of the city of Macon, acts of 1863, page 188, that city is liable— quwre?</p>