Volume 59 — Georgia Reports

<p>Judgment. New trial. Practice in the Superior Court. Practice in the Suprelne Court. August Term, 1811.</p> <p>Reported in the opinion.</p>

<p>United States Courts. Eemoral of causes. Judgments. Practice in tbe Supreme Court. Tenue. Pleadings. Husband and wife. Parties. Practice in tbe Superior Court. Before Judge Gibson. Burke Superior Court. October Adjourned Term, 1876.</p> <p>Eeported in tbe opinion.</p>

Equity. Auditor. Practice in the Supreme Coui't. Practice in tlie Superior Court. Evidence. Principal and agent. Contracts. Factors. Before Judge Gibson. Richmond Superior, Court. October Term, 1876.

Ejectment. Contracts. Estoppel. Prescription. - Possession. Mesne profits. Newly discovered evidence. New trial. Deeds. Before Judge Hall. Pike Superior Court. April Term, 1877. William E. Williams brought complaint against John R. Jenkins for a portion of lot number 29 in tbe town of Barnes-ville, and for mesne profits. Tbe defendant pleaded tbe general issue,and title by prescription.

<p>Practice in the Supreme Court. Constitutional law. Before the Supreme Court. August Term, 1877.</p> <p>Eeported in the opinion.</p>

<p>Criminal law. Witness. Impeachment. Accessory. New trial Before Judge Ejcddoo. Randolph Superior Court. May Term, 1877.</p> <p>Reported in ¡the opinion.</p>

<p>Injunction. Before Judge Gibson. Richmond Superior Court. October Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Claim. Levy and sale. Husband and wife. Practice in the Superior Court. Amendment. Debtor and creditor. Eraudulent conveyance. Before Judge Pottle. Richmond Superior Court. April Term, 1877.</p> <p>Reported in the decision.</p>

<p>Railroads. Schedules. Master and servant. New trial. Before ~W. L. Caliioun, Esq., Judge pro haovioe. DeKalb Superior Court. March Term, 1877.</p> <p>Reported in the opinion.</p>

<p>The purchaser of land subject to the lien of a mortgage, who buys after the mortgagor has been sued and served with the rule nisi to foreclose the mortgage, will be concluded by the judgment of foreclosure, although the mortgagor was not served until after the term to which the rule was returnable, and after the 1st of January, 1870; and such purchaser cannot set up the limitation act of 1869, though the cause of action, entitling the mortgagee to foreclose, arose prior to 1865.</p>

<p>Certiorari. Before Judge Gibson, Richmond county. At Chambers, June 20th, 1877.</p> <p>Report unnecessary;</p>

<p>1. Discretion in refusing continuance not abused, full diligence to procure the absent witnesses not having been exercised.</p> <p>2. When two are tried jointly for an offence of which one maybe convicted,though the otherbe acquitted,the right of peremtory challenge, in its whole extent, is of the same jn'actical importance to each as if he were being tried severally. By going to trial as the state has indicted them, that is jointly, the prisoners do not waive any any right of peremptory challenge. Each is entitled to his full statutory allowance. If the state is not prepared to afford the full allowance to each in a joint trial, it should demand a severance, and try the prisoners separately, unless they stipulate expressly to unite in their challenges, in which case they will be bound to do so. Without such express stipulation, the court cannot oblige them to unite in their challenges.</p> <p>3. Where two are tried jointly, and a witness introduced by one is also examined by the other, both should be considered as having introduced evidence, and the state will be entitled to conclude.</p> <p>4. Where two persons are indicted and tried jointly for- robbery, the the jury may return, at the same time, two separate verdicts: a verdict as to one-defendant, of guilty, and a verdict as to the other, of not guilty. It is more regular to embrace both findings in the same verdict, but two verdicts returned together are to be read and treated as one.</p> <p>Jackson, Judge, dissenting.</p> <p>1. Trial by jury involves, as an important element, the selection of the ■jury; and if thejprisoners choose to go to trial jointly, they must challenge jointly; if they wish each his Ml, separate challenge, then they must choose to sever.</p> <p>2. The time for them to choose is before the trial is begun; if they, then, choose to go to trial together, all the consequences of joint trial, including joint challenges, follow, and in a case of robbery, both together are entitled to only twenty challenges, and the state to ten. Any other rule would breed great confusion, and entitle the prisoners, if many, to numerous challenges, and the state to half as many, and might greatly embarrass, if not “block the trial,” by all the prisoners never agreeing to the same jury until the vicinage would be exhausted.</p> <p>3. Where the complaining prisoner had every juror, whom he challenged, set down for cause, he was not hurt; and if no complaint was made, or could be made, that the jury was otherwise than perfectly impartial, a new trial should not be granted, even if the court had ruled wrong on an abstract point which worked no damage to anybody.</p>

<p>1. When an administrator defends a suit at the instance of the heirs at law, who are the real parties in interest, and those heirs testify in respect to what transpired between the intestate and the plaintiff, the plaintiff may also testify in rebuttal of their evidence.</p> <p>2. A medical diploma from a college in another state, is not admissible in evidence, except upon proof thereof and of the charter of the college, under the ruling in 27 Ga., 76.</p> <p>3. A charge which is not supported by any evidence in the case, is inapplicable thereto, and should not be given.</p> <p>4 Sayings of witnesses to third persons are admissible to impeach or discredit them, when the proper foundation therefor is laid.</p>

<p>1. That the papers in a case appealed from a justice court were not forwarded and filed in the clerk’s office of the superior court until seven days before the next term thereof, constitutes no ground on which to dismiss the appeal.</p> <p>2. Where judgment de bonis iestatm'is was rendered by the justice, and the defendant, on the same day, entered an appeal without giving security, and subsequently the judgment was amended by the justice, so as to charge the defendant individually,- the appeal should not be dismissed because entered without the appellant’s giving bond and security.</p> <p>8. Did the justice have the authority to amend the judgment after the appeal 2</p>

<p>Pleadings. Judgments. Practice in tbe Superior Court. Evidence. New trial. Before Judge Hillyer. Fulton Superior Court. April Term, 1877.</p> <p>Eeported in tbe opinion.</p>

<p>Where the securities on a rent note notify the holder of said note, that their principal is removing enough cotton from the rented premises to pay the note, and call upon him to distrain, and the holder promised the sureties to do so, and said that he would collect the note from the principal, and would not look to them at all for the money, and where the holder failed to distrain, and suffered the property to be taken away, and the sureties were ignorant of it for more than a .year, and were induced, by this assurance, to forego legal proceedings to make the money out of the cotton themselves, and were thus damnified the value of the note — the principal debtor being insolvent all the time: ■ ■</p> <p>Held, that the conduct of the holder, in thus' preventing the securities from using their legal remedies, will estop him from collecting the .note from the sureties — that they are thereby discharged — and that the court erred in striking a plea to that effect.-</p>

<p>Warranty. Eviction. Practice in the Supreme Court. Bill of exceptions. Certificate. Before Judge Pate. Dooly Superior Court. March Term, 1877.</p> <p>Beported in the opinion.</p>

Equity. Receiver. United States Courts. Before Judge McOutchen. Bartow County. At Chambers. March 15th, 1877.

<p>1. A gift of land is not complete without writing by the donor, or the erection of substantial improvements by the donee, so as to entitle the latter to specific performance, or the continuance Qf possession for seven years, in the case of father and child, under conditions that warrant the presumption of a gift.</p> <p>2. Until the gift is complete, title is in the donor, and a judgment against him will hind the land so as to prevent the subsequent completion of the gift as against the lien of the judgment.</p> <p>Jacksom, Judge, concurred on special grounds.</p>

Ci’iminal law. Alibi. ' Charge of Court. Before Judge Eick Clarke Superior Court. February Adjourned Term, 1877. Johnson was indicted for the offense of simple larceny, alleged to have been committed, in stealing a cow. He was tried and convicted. His defense was an alibi. He moved for a new trial, upon numerous grounds.

Practice in tbe Superior Court. Jurors. Evidence. Practice in the Supreme Court. Before Judge Rice. Gwinnett Superior Court. September Adjourned Term, 1876.

Municipal corporations. Streets. Negligence. Charge of Court. Before Judge GrusoN. Richmond Superior Court. April Term, 1877. The case made by the plaintiff when the motion for a non-suit was made is sufficiently stated in the first headnote.

<p>A man who can voluntarily shoot, is capable of entertaining and acting from malice, unless he can plead some infirmity besides drunkenness. To be too drunk to form the intent to kill, he must be too drunk to form the intent to shoot. Intent to kill is the only necessary ingredient of legal-malice, in the absence of justification and of all adequate provocation. 29 Qa., 607; 55 lb., 30.</p>

<p>This case was argued at last term, and decision reserved.</p> <p>1. Where a plea to the jurisdiction has been filed, though subseqently held defective by the supreme court, it is not too late, on the presentation of the remittitur, to plead res adjudieata. Practically speaking, this is a plea in bar, and could come in as an amendment to the general issue, which is considered filed in all cases which are answered at the appearance term. — (R.)</p> <p>2. Judgment having been confessed in another state as collateral security on a note given as collateral to two other notes, which were retained by the holder in this state, and the confession being held invalid by the courts of that state, the only matter which is res adjudieata, is the invalidity of the judgment so confessed. The original notes, which remained in the creditor’s hands, and were not declared upon there, are unaffected by the adjudication there.</p>

<p>1. Charge upon assumed state of facts, error.</p> <p>2. Where one defendant to a fi. fa., not named as security therein, hut claiming to be sucb, seeks to control it against a co-defendant, wbo is set forth as a security, to force contribution, he must proceed to obtain the legal control thereof under §§2166, 2170 of Code.</p> <p>S. That plaintiff, or his representative, receipted such defendant on the fi. fa., for money paid, as one of the securities, will not authorize the control of the execution against the other defendant who is named as'security.</p>

<p>Criminal law. Autrefois acquit. Before Judge Crisp. Sumter County. At Chambers. July 7, 1877.</p> <p>Reported in the opinion.</p>

<p>Heeds. Evidence. Estoppel. Bailroads. New trial. Before Judge Peeples. BeKalb Superior Court. September Term, 1876.</p> <p>Beported in the opinion.</p>

<p>Practice in the Superior Court. Pleadings before Judge Underwood. Haralson Superior Court. March Term, 1877.</p> <p>Reported in the decision.</p>

<p>When a husband, whether solvent or insolvent at the time, purchases property for his wife and children, taking title to himself as their trustee, paying nothing, but giving his note for the price, and afterwards dies insolvent, leaving the note wholly unpaid, and where his widow, after his death, discharges the note with her own means, the husband’s creditors have not been injured or defrauded, and cannot subject the property, though their claims were in existence when the trust was created.</p>

Jurors. Practice in the Superior Court. Sheriffs. Witness. Before Judge Clark. Lee Superior Court. March Term, 1877. This was an appeal from the county court to the superior court. Gill, former shériff, moved to set aside an attachment issued against him by the clerk of the county court.

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

<p>1. ‘‘Professions” in a power to lay taxes, is to be understood -as in eluding lawyers, unless the contrary plainly appears.</p> <p>2, Authority to tax all persons exercising any profession, may be executed by taxing each member of a law firm, separately. The member cannot require that the firm shall be taxed and not himself, though he does not practice otherwise than as a partner. ■</p>

<p>1. This court will not control the discretion of the circuit court on the question of the continuance of a case, unless such discretion has been abused.</p> <p>2. A charge to the grand jury, on their organization the second week of the court for service during that week, in which they are exhorted to bring offenders to trial and punishment, made in the presence of the traverse jury engaged in the trial of a case for murder, is not ground for the grant of a new trial in such case, though allusion be made, in the charge to the grand jury, to the crime of murder, and the indisposition of the people to arrest armed offenders, and though the prisoner on trial was, and had been, so armed at and before his arrest — the judge stating, in said grand jury charge, that he had no allusion at all to the case pending, that the case pending must be tried on its own merits, when his attention had been called to the possible effect of the grand jury charge upon the traverse jury — and his charge to the traverse jury being perfectly fair and unexceptionable, and unexcepted to.</p>

<p>F. bought land from Y. and gave his note for the purchase money. V. transferred the note to W., who obtained judgment thereon. M. agreed to pay off the judgment, if F. would convey the land to him. This was done, but instead of paying off the judgment, M. took an assignment thereof, and is proceeding to enforce its collection by levy and sale:</p> <p>Held, that illegality was the proper remedy, and not injunction.</p>

<p>Practice in the Supreme Court. Practice in the Superior Court. Judgments. Costs. Before Judge Clark. Webster Superior Court. March Term, 1877.</p> <p>Eeported in the opinion.</p>

Practice in tbe Superior Court. Charge of Court. Service. Sheriffs. New trial. Before Judge Peeples. Spalding Superior Court. February Term, 1877. This was a motion to set aside a judgment rendered in 1866, on the.ground that movant, who was one of the defendants, had not been served. There was the usual entry of service on the declaration. The sheriff was not a party to the proceeding. The sole issue was one of service or no service.

<p>1. Before the act of August 24, 1872, a tax collector had no authority to transfer a tax execution so as to entitle the transferree to enforce it against the property of the defendant.</p> <p>' 2. Where a person, other than the defendant to an execution, filed an affidavit of illegality thereto, which was dismissed, such affidavit and the order of dismissal thereon, are not evidence for the plaintiff upon the trial of a claim subsequently filed by the same party.</p>

<p>1. Penalty in bond being $80.00, the surety is not liable thereon for more than that sum, with interest.</p> <p>,2. Can judgment be entered against the surety of a tenant holding over, withokt suit upon the bond — quam'6?</p>

<p>Advancements. Parent and child. Gifts. o Presumptions. Before Judge Bartlett. "Wilkes Superior Court. November Term, 1876.</p> <p>Sufficiently reported in the opinion.</p>

<p>Any officer authorized to issue an attachment generally may issue an attachment for purchase money, though the affidavit was made before an officer of a different county.</p>

<p>1. Where, in an action against, principal and sureties on a guardian’s bond, the breach alleged is, not failure to collect assets, but failure to account for and pay over assets which came to hand, the inventory and returns made by the principal, as administrator upon the ward’s father’s estate, prior to his appointment as guardian, are not competent evidence for the plaintiff. As admissions, they cannot be used to affect the sureties, not being oifered for the purpose of impeaching the guardian as a witness.</p> <p>2. As matter of correct practice, a motion to strike a part or all of a special plea, is not in order after the evidence is all in. Nor is it then in order to rule out evidenee which, as the plea stood, was legally admitted.</p> <p>3. A guardian’s returns are only pi'ima fade evidence for or against him, and may be explained by parol. 45 Qa., 520.</p> <p>4. Where the evidence shows that certain notes held by a guardian were paid before the war, in order to take credit for the amount thereof as Confederate money invested in Confederate bonds, he must make it appear how the fund became changed into Confederate money. 52 Qa., COO.</p> <p>5. If all the funds invested were Confederate funds, an order to invest, though broad enough to cover other kinds also, would be no aid to the guardian in accounting for other kinds not legally converted into that kind.</p> <p>6. That a guardian might be justifiable in collecting a note belonging to his ward in Confederade money, would not authorize him to sell it for such money to a third person, without an order of sale from the ordinary.. Code, § 1828.</p> <p>7. Which of the following propositions will, on the facts, be found to be the true law of this case, is, for the present, left an open question, inasmuch as the case was prepared for trial and, in the main, tried bjelow on the special plea which treated the notes as the true fund to be accounted for, and as a new trial should be granted, whether that theory be correct or not:</p> <p>. to.) The first proposition may be stated thus: Where, before the war, an administrator became guardian of one of his intestate’s children, and, in settlement with himself in the character of administrator on the one side, and guardian on the other, he used promissory notes belonging to the estate, treating them as money, and, in his first return as guardian, charging himself, not with notes as such, but with an equal mount of cash, this was equivalent to a conversion of the notes into money at that time, and what became of them afterwards is none of the ward’s concern, unless he should elect to pursue them as a trust fund. The guardian cannot oblige him to accept the notes or their proceeds, in lieu of actual money, in anaccounting between them. 41 Qa., 579; 57 lb., 226.</p> <p>(p.) The alternative proposition may be stated in the same terms down to the word cash, and then proceed as follows: This only made the guardian a guarantor of the then solvency, and the continued solvency, of the notes until they should be collected. If, in good faith, he collected them during the war in Confederate money, at a time when prudent creditors received such money in payment of like debts due them, the Confederate money then became the trust fund, and the legal investment thereof in Confederate bonds, under an order of the judge of the superior court, and the production of the bonds now, will be a sufficient accounting for the amount so invested.</p>

<p>1. A rule mm signed as follows: “By the court, Hardeman & Johnson, plaintiffs attorney’s,” is legal and valid, especially when supported by a rule absolute, signed by the judge himself.</p> <p>2. The head of the family, who is defendant to the rule to foreclose a mortgage executed before the land was set apart as a homestead, is concluded by the judgment of foreclosure, in respect to payments alleged to have been made on the mortgage before foreclosure.</p> <p>3. A mortgage executed to secure money loaned to lift from the homestead the incumbrance of judgments for the purchase money of the land set apart as a homestead, is good against all the land embraced in the mortgage, until all the purchase money has been paid.</p>

Deeds. Title. Mortgages. ' Charge of Court. New trial. Before Judge Clark. Webster Superior Court. March Term, 1877. One Pickett conveyed land to Burke et al., aud took an obligation for its reconveyance upon the repayment of the purchase money within a certain time. Afterwards Jarvis & Wilson recovered judgment against Pickett, and levied on the land. It was claimed by Burke et al. The consideration expressed in the deed was $501.

<p>1. If service of bill of exceptions is not otherwise too late, it will not be held to be so because the acknowledgment bears date on the same day as the clerk’s entry of filing; especially, where not only service,but, “due and legal service,” is acknowledged. An erased date in. the clerk’s entry will not be regarded, if another date has been substituted by him which can be- distinctly read.</p> <p>2. Where, because of the judge’s death after the bill of exceptions was delivered to him, and before he certified it, the authentication of the bill is by counsel and another member of the-bar, under section 4255 of the Code, the date of the death need not appear, full diligence being shown to complete the authentication as soon as practicable, and the case having reached this cpurt in time for the term to which it would have been returnable had the authentication been by the judge himself.</p> <p>8. When there are interlineations in the bill of exceptions, and also in one of the affidavits of authentication, an addition to the interlined affidavit, subsequent in date to the original, to the effect that the interlineations were sworn to, without stating what 'interlineations, will be construed as referring to the interlineations in the affidavit,' and not to those in the bill of exceptions. Those in the bill of exceptions will be treated as made (nothing to the contrary appearing) before any affidavit of authentication was sworn to.</p> <p>4. When homestead was applied for expressly under the act of October ’ 3, 1868, and the applicant, a woman, described herself as the head of a family, and the homestead was laid off, approved and recorded; the proceeding was not void because the kind of family, whether one of minor children or otherwise, was not disclosed. The presumption is, that the family was such as the act cited in the applies!' tion’ makes provision for.</p>

<p>1. A survey and plat of lands under the homestead laws, may be admitted in evidence, though not scaled according to rule 50 of the superior courts.</p> <p>2. Res adjudicata, or former recovery, and all pleas in avoidance of plaintiff’s cause of action, must he specially pleaded, and evidence of such former adjudication, is not admissible under the general issue, 'under Oode, section 3458; even if the evidence had been admissible under the pleadings, still an action of trover to recover the property between the claimant of title thereto, and those in possession thereof, is not controlled by a judgment for the sureties on a constable’s bond for a wrongful levy, though the defendants in trover purchased at the constable’s sale. The trespass verdict in favor of the sureties may have turned on very different issues from the title to the property, and such verdict and judgment is not evidence in the trover case.</p> <p>3. The verdict in this case is supported by evidence, and not against law.</p>

<p>Practice in the Supreme Court. Lost papers. Evidence. Before the Supreme Court, August Term, 1877.</p> <p>Report unnecessary.</p>

<p>Pleadings. Negotiable instruments. Before Judge Underwood. Floyd Superior Court. January Adjourned Term, 1877.</p> <p>Reported in the opinion.</p>

<p>1. When a draft drawn by several persons is delivered in blank, as to the amount, and the payee has notice, before parting with the consideration, or otherwise acting upon the draft to his injury, that one of the drawers fixed a limit to the amount, and gave authority to fill the blank with that much, and no more, the liability of such drawer to the payee will be restricted accordingly; and the payee, by inserting a larger sum, and by parting with value commensurate therewith to another one of the drawers, will acquire ño right to recover of the drawer who fixed the limit anything in excess of that limit.</p> <p>2. The charge of the court, in announcing the substance of the above rule, was sufficiently clear and explicit to be understood by jurors of ordinary capacity.</p>

<p>1. Cooling time for the prisoner to recover from heat of passion, is a question for the jury, and not for the court.</p> <p>2. Provocation toy words and menaces alone, will not reduce homicide from murder to manslaughter.</p> <p>8. It is error for the court to charge the jury to the effect that if they believe the facts detailed toy the witnesses, and that the person assaulted had died, “that- would -.have made itlie crime murder; then,,death not having ensued, the crime is an assault with intent to murder.’’ It amounts to a strong expression of opinion on the facts toy the court, and is prohibited in express language toy the statute.</p> <p>4 Where the charge excepted to, as presented in the record, contains no punctuation marks, it seems that this court will pass upon it precisely as it stands, and will not supply, in construing it, such marks. — (R.)</p> <p>5. The statement of the prisoner is not evidence, tout is only entitled to such weight as the jury see fit to give it.</p>

<p>Equity. Municipal corporations. Streets. Before Judge Hall. Fulton Superior Court. April Term, 1877.</p> <p>Eeported in the decision.</p>

<p>1. By section 1783 of the Code, a married woman is disabled from binding her separate estate by any contract of suretyship, whether in behalf of her husband or of any other person.</p> <p>3. Where the plaintiff himself proves the contract sued upon to be one of suretyship on the part of a married woman, (one of the defend, ants in the action,) no special plea is requisite to make the evidence available for her defense.</p> <p>3. Immaterial errors on the trial do not vitiate the result.</p>

<p>Debtor and creditor. Fraudulent conveyances. Torts. Before Judge Peeples. Fulton Superior Court. October Term, 1816.</p> <p>Reported in the opinion.</p>

<p>When a second affidavit of illegality is filed to an execution, the defendant should state fully and specifically the reasons why the grounds therein contained could not have been known to him, or, where the transactions were through an agent, to his agent, at the time of filing the first.</p>

<p>Where, in a proper case, an application is made, in terms of the act of congress of March 3, 1875, for removal of a cause from the state court to the-circuit court of the United States, a sufficient petition and bond, tendered by the applicant, should be accepted, whether notice has been given to the opposite party or not. The act does not provide for notice, and none is necessary.</p>

Practice in the Superior Court. Contracts. Novation. Promissory notes. Before Judge Clark. Macon Superior Court. May Term, 1877. Plaintiff brought complaint against defendants. The evidence for plaintiff was, in brief, as follows: In 1870 one Dixon sold certain land to Doles for $2,500.00; it was sold in the lot, and not by the acre. One thousand dollars was paid on the purchase money, and notes given for the balance.

<p>Where the ordinary was requested, in writing, by a majority of the distributees of an estate, to appoint a certain person administrator, there being no other applicant, one of the distributees cannot defeat • such appointment, on the ground that the person so applying was ' neither the next of kin to deceased, nor interested in the estate, nor a creditor.</p>

Injunction and receiver. Banks. Stockholders. Assignment. Before Judge Hill. Bibb county. At Chambers. June 9, and July 2, 1877. Gresham, as assignee of the City Bank of Macon, filed his bill against Crossland and other creditors of said bank, for injunction, making, in substance, the ease presented in the first division of the opinion. On the the 9th of June, 1877, the injunction was refused, and complainant excepted.

<p>Injunction. Before Judge McCutci-ien. Eloyd county. At Chambers. October 13, 1877.</p> <p>Eeported in the opinion.</p>

Practice in the Superior Court. New trial. Before Judge Wright. Chatham Superior Court. March Term, 1877. A fi. fa. in favor of Douglass against R. R. Davis was levied on certain land, which was claimed by Boynton. On the trial, the evidence for plaintiff was, in brief, as follows; The judgment was rendered March 16, 1869, and the levy made April 15, 1873. Davis had been in possession of the land since 1855 or 1856, and was living on it.

<p>1. In order for the plaintiff to recover in an action for overflowing his land by the defendant’s mill dam, he is not obliged to prove special damages. If his right has been illegally invaded, he may recover nominal damages for its vindication.</p> <p>2. The damages to be recovered as rents and profits, especially, where some of the land overflowed1 23is unclear-ed, are not restricted to net, clear profit, over and above all expenses — the net gain that an owner , would derive from land in its condition. The jury should regard the capabilities of the land for more profitable use in a changed con-. dition; and also the obstacles to change presented by the nuisance-complained of. Keeping.up the nuisance should not be a means of keeping down the rent.</p> <p>3. Prescription, as the foundation of a right to overflow the land of a stranger, depends, not upon the height of the dam, but upon the reach and elevation of the back water; not upon what the dam was capable of, but upon what it performed;</p> <p>41 Damage from charging and saturating the soil with back-water not-rising above the surface, may be recovered when sued for and established. But a request to charge on the subject, was properly refused because too comprehensive.</p>

<p>1. A contract to return in the autumn an amount of com more in excess of that borrowed the preceding winter than seven per cent, thereon, is not usurious.</p> <p>2. Where the vendee and vendor agreed, on the representation of a third party, as to the quantity of corn in two cribs, to estimate it at that quantity, the vendor having proposed to measure and the vendee declining to do so, and where the vendee gave his note therefor in December, and the same having been lost, gave another note for the same quantity of com in the following June, after much of it had been fed away, and never complained of a deficiency in quantity until '■ all the corn was gone:</p> <p>Held, that the vendee should pay for the com at the estimated quantity, and that a verdict to that effect was properly sustained by the presiding judge.</p>

<p>Practice in the Supreme Court. New trial. Before Judge Ceawrobd. Muscogee Superior Court. May Term, 1877.</p> <p>Reported in the decision.</p>

<p>Prescription. Stare decisis. Before Judge Hill. Bibb Superior Court. April Term, 1877.</p> <p>For the facts, see the opinion.</p>

Evidence. Landlord and tenant. Contracts. Liens. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1876. McKellar brought assumpsit against Saulsbury, Respess & Co., alleging, in substance, as follows: He rented a certain plantation in Bibb county to P. M. and W. H. Curry, and took a rent note for $200.00, to be paid out of the proceeds of the first cotton gathered.

Criminal law. Indictment. Before Judge Rice. Oconee Superior Court. July Term, 1876. The following statement of facts, shown by the evidence, when taken in connection with the decision, sufficiently reports this case: The owner of a dwelling house in Oconee county left it about 4 o’clock in the afternoon, and returned about the same hour on the next day, December 12, 1875. In the meantime the house was broken open and entered, and certain articles were stolen therefrom.

<p>Criminal law. New trial. Jury. Before Judge Wright. Dougherty Superior Court. April Adjourned Term, 1877.</p> <p>Report unnecessary. •</p>

Equity. Multifariousness. New trial. Before Judge Hall'. Monroe Superior Court. February Term, 1877. Dewberry filed his bill against defendants, making, ib brief, the following case In 1863 he loaned to Bichard G. Watson a sum of money for the purpose of paying for the land mentioned below. In 1869 he sued on the note given therefor, and in 1870 obtained judgment. Execution issued, but was not levied for several years, interest accruing in the meantime.

<p>1. Where commissioners of police have jurisdiction to try members of the police force of a city, for immoral or disorderly conduct, their judgment that a policeman has- been guilty of such conduct is conclusive until reversed.</p> <p>2. Seduction under promise of marriage, followed by desertion, failure to provide for the seduced and her offspring, and the consequent death of both, constitute continuous acts of immorality ; and, although the actual seduction by the policeman may have occurred before the creation of the board of commissioners, and before his connection with the police force, yet his subsequent conduct gave the commissioners jurisdiction of the case.</p> <p>S. Having been so adjudged guilty and discharged, he cannot recover from the city his salary for the remainder of his term.</p> <p>Bleckley, Judge, dissented.</p>

Attorney and client. Estoppel. Process. Before Judge Bioe. Hall Superior Court. March Term, 1877. An execution in favor of. plaintiff’s intestate against A. M. Cochran, was levied upon certain laud as the property of the defendant therein. A claim thereto was filed by Kedwine. Upon the trial of the issue thus formed, title and possession were shown in Cochran at the date of the judgment.

<p>1. The title to land set apart as a homestead is for the use and benefit . of the family, and is in the nature of a trust estate, the mere legal title being in the head of the family as trustee or agent. If, therefore, it be sought to subject such property to the payment of a debt for material furnished for the improvement of the homestead, the plead- ' ings must show the grounds of the claim, and how the estate is liabio, and the names of the cestui qui trust, as in other common law suits against trust estates, under section 3377 et seq. of the Code.</p> <p>2. If the equitable title to the land never passed out of the defendant in ft. fa. to the family by virtue of the homestead proceedings, on account of irregularity, then, as the plaintiffs had no lien thereon, and claimants were iona ftde purchasers for value without notice even of the debt of plaintiffs, and bought before judgment, it is clear that claimants bought a good title from defendant in ft. fa. as against plaintiffs’ claim; and if the title did pass as a homestead to the family, or for their use and benefit, then, as the pleadings do not conform to the statutes in regard to trust estates, it is equally clear that the land is not subject.</p>

<p>1. If it appears from any of the state’s witnesses, that confessions testified to were not freely and voluntarily made the court should exclude them ; but where such witnesses testify that the confessions were freely and voluntarily made, it is incumbent on the defendant to show to the contrary, and whether they were so made or not, becomes a question for the jury.</p> <p>2. The verdict was supported both by the law and the evidence.</p>

New trial. Practice in the Supreme Court. Sabbath. Before Judge TIansell. Mitchell Superior Court. November Term, 1876. One of the grounds relied upon in the brief of counsel for plaintiff in error for reversal, was because the new trial was granted on the Sabbath. The bill of exceptions contained no such assignment of error.

<p>Equity. Administrators aud executors. Statute of limitations. Before Judge Underwood. Haralson Superior Court. March Term, 1877.</p> <p>Reported in the opinion.</p>

Stock. Dividends. Witness. Evidence. Principal and agent. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1876. The following, taken in connection with the decision, sufficiently reports this case: Papot swore that Ketchum & Hartridge were brokers, and were the agents of Shorter, Papot & Co., (of which firm complainants were survivors) authorized to receive stock for that firm, sell, and deposit the proceeds to their credit.

<p>1. "Where a judgment is entered up in blank as to the amount of costs, and the clerk, on taxing the costs and issuing execution, has failed ‘to fill the blank, the court may order the judgment amended by inserting therein the amount of costs for which the fi. fa. has issued, if such amount he correct. The making of such amendment is not cause for dismissing a pending levy, unless the execution is proceeding for costs only.</p> <p>2. Where an execution is outstanding, and a member of a partnership not a party to it, contracts with the defendant that if he will advance a fund sufficient to pay it off, the fund, after being used for a time, shall he applied to its payment, and the stipulated fund is advanced to the partnership accordingly, the partnership cannot apply the same to an account due to it from the defendant, and then purchase the execution, and, as transferee, enforce its collection. Purchase by a partnership under the circumstances, will operate as payment.</p>

Taxes. Revenue. Stock. Banks. Before Judge Clark. Sumter Superior Court. April Term, 1877. Complainants filed their bill against defendants, alleging that they had given in all their property subject to taxation to the tax receiver, and had duly paid their tax; but that certain fi. fas. were proceeding against them illegally for tax upon the stock of the First National Bank of Americus, they being stockholders. The prayer was for injunction.

<p>Equity. Amendment. Homestead. Estoppel. Deeds. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1876.</p> <p>Eeported in the decision.</p>

<p>When, after judgment in attachment, against personal property attached, the sheriff is ruled by the attaching creditor for surrendering the properly to the debtor, after levy and before judgment, without talcing the replevy bond required by law, and the rule is made absolute, the sheriff’s liability is exclusively to the plaintiff in the rule; and a creditor of the defendant in attachment, by general judgment older than the judgment on the attachment, has no right to the money produced by the rule, the same not being the money of the judgment debtor, nor the proceeds of his property. The rule absolute, in such case, is a judgment in favor of the attaching creditor for an injury done to him by the sheriff in his official capacity, to which injury and its consequences other creditors of the common debtor are strangers.</p>

<p>Principal and security. Levy and sale. Bankrupt. Before Judge Wright. Baker Superior Court. May Term, 1877.</p> <p>Reported in tbe opinion.</p>

<p>Constitutional law. Laws. Railroads. Before Judge Rice. Hall County. At Chambers, June 22, 1877.</p> <p>Reported in the decision.</p>

<p>1. As, under section 3622 of the Code, a trustee has a right to appeal from a judgment against the assets of the trust estate, without paying costs or giving bond and security, it is error to dismiss liis appeal in such a case because the appeal was entered on a defective pauper affidavit.</p> <p>2. Where, subsequent to the argument of a case, it is discovered that a material portion of the record is wanting, under the act of February 26, 1877, the further consideration thereof will be postponed until a duly authenticated copy of the missing part is filed in the clerk’s office of this court. — [R.]</p>

<p>[Bleckley, Judge, liaving been of counsel, did not preside in this ease.]</p> <p>1. When the judge of the superior court, by agreement of parties, tries a case on the law and facts without the intervention of a jury, the same consideration will be given to his judgment on the facts as to the verdict of a jury thereon.</p> <p>2. When the facts before the judge so acting were, that a purchaser for value held his deed to the land from the father and mother of the volunteer children, who held a prior deed of gift from the father to the mother for life, and to the children in remaindei', and that this deed to the purchaser for value was dated the 21st of August, 1862, and witnessed by the attorneys and counselors, who, on the loth of August, 1862, presented a petition on behalf of the father and mother to the judge of the superior court at chambers, in which the prior volunteer deed was set out in its terms and conditions, and obtained from said judge an order to sell the land, and when the prior volunteer deed was duly recorded:</p> <p>Held, that this court will not disturb the finding and judgment of the judge so acting- as judge and jury, to the effect that the purchaser for value,under the foregoing- facts had, or could have had, knowledge of the prior voluntary conveyance, so that his conscience was affected thereby, and which, if not proof positive of actual notice, was equivalent thereto; and that, therefore, those claiming title under the volunteer children had a better title than the purchaser for value, under such circumstances, from the father and mother.</p>

<p>In response to a mandamus to the clerk of the superior court, requiring him to show cause why he had not sent up the record in this case as directed by the judge of the superior court, he set up the following facts: On September 2, 1876, the bill of exceptions was signed by the judge; it was filed on the 4th; counsel for plaintiffs in error had a.portion of the record in their possession, which he (the clerk) was unable to obtain until December 15; the transcript of the record was then completed by his deputy, and certified on the 22d of the same month; on account of his (the clerk’s) sickness, the record and bill of exceptions were not forwarded to the clerk of the supreme court until December 30, four days after- the return day to the January term, 1877. The case was accordingly entered on the docket of the present term. When the case was called, a motion to dismiss the writ of error was submitted, because the papers had not been forwarded to this court either within the time, or in the manner, prescribed by law:</p> <p>Held, that no such providential cause for delay, as is contemplated by the constitution, having been shown, nor any diligence on the part of plaintiffs in error, the writ of error is dismissed. The case is not covered by the act of 1870.</p>

Injunction. Judgments. Administrators and executors.' Debtor and creditor. Before Judge Bartlett. Jones Superior Court. April Term, 1877. Ross, as executor of James M. Gray, deceased, and others, filed their bill against Cordelia Turk, Virginia Pitts, and Ellen Singleton, as executrix of Leroy Singleton, deceased, making, in brief, the following allegations : They are creditors of Leroy Singleton, deceased, and have recovered judgments against his executrix since his death.

<p>1. After a jury has heen charged, and has been,in the jury room all night considering the ease, a witness cannot be recalled to testify again, or.to state or explain the testimony, already given, without the consent of all parties.</p> <p>2. If recalled for any purpose, the party against whom the witness was called should be allowed (he right of cross-examination.</p> <p>3. A director and stockholder in a bank is not competent to act as a judicial officer in the proceedings necessary to obtain an attachment in a case in which the bank is interested.</p> <p>4. Whether or not a married woman who signs a note with her husband, is responsible out of her separate estate therefor, turns upon the question whether she signed to raise money on her own account, or as surety, or to assume a debt of her husband. If the note was given in regard to her own business conducted by her husband for her, she is hound;, if as surety for him in his business, or to pay his debts, her separate estate is not hound.</p> <p>5. A. declaration in attachment will be construed in connection with the attachment papers when.it refers distinctly to those papers, and such declaration will he held sufficient if the debt he distinctly declared upon, and the attachment papers be described as pending in the court and returnable to a certain term thereof, though no special prayer for judgment he in the declaration.</p>

<p>Claim. Judgments. Levy and sale. Evidence. Before Judge Crawford. Muscogee Superior court. May Term, 1877.</p> <p>Eeported in the decision.</p>

<p>1. Though 'the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would he to impeach the witness, a new trial will not be granted.</p> <p>2. The evidence is sufficient to uphold the verdict.</p>

<p>1. A rule nisi to foreclose a mortgage on land, was served on the defendant personally, on the 2d of January, 1877, and on the first day of the next term, to-wit: the 2d of April, 1877, the rule was made absolute:</p> <p>Held, that the 2d day of January, the day on which the rule nisi was served, should be counted, and counting that day, three months had elapsed before the 2d of April, and the service upon the defendant was sufficient under the 3902d sectiop of the Code.</p>

<p>Trover. Damages. Before Judge Peeples. Fulton Superior Court. October Term, 1876.</p> <p>Beported in the decision.</p>

<p>By taking homestead in land, the estate of the debtor is not enlarged; nor is any lien or claim divested which is superior to the homestead right. Hence, injunction against proceedings by the debtor’s wife to have a homestead laid oil and assigned out of premises belonging to a partnership of which her husband is a member, will not be granted at the instance of another member of the firm, on the ground that the property is partnership assets and needed, for the discharge of partnership liabilities. The property will be no less subject to those liabilities after the homestead is taken than it was before, if for any reason they are superior to the homestead right, and if they are not superior to it, the exercise of the right ought not to be, and cannot be, enjoined.</p>

<p>1. Sayings of one party to a ren counter just before its occurrence, within hearing of the other, may be admitted as part of the res gestee, especially when the objection is not renewed after it is ascertained, on inquiry, by the presiding judge, that the sayings were within hearing of the other party, and the judge considered the objection withdrawn.</p> <p>2. Where the fight sprang out of the fact that one of the parties rode a mule against the wishes and protestations of the other, it is not irrelevant, and therefore illegal, for the court to charge to the effect that-the riding the mule would not in law justify the assault.</p> <p>3. The evidence being sufficient to support the verdict, this court will not set it aside on the ground that it is against the weight of evidence, the presiding judge being satisfied with the verdict.</p> <p>4. Where the indictment charges three persons w.ith an assault with in. tent to murder; that one was armed with an ax, another with a knife, and a third with a stick; that they all struck the person assaulted, who was badly wounded, and the wound described, the state will not be forced to elect with which weapon (knife or ax) it will insist that the crime was committed.</p>

United States Courts. Jurisdiction. -Bankrupt. Before Judge Clark. City Court of Atlanta. December Term, 1876. To the report contained in the opinions, it is only necessary to add, that the action was trover in. the statutory form by plaintiffs, “ who sue as assignees in bankruptcy of,” etc. Title was claimed to be in plaintiffs:

<p>1. When the action is on an account for services, etc., and the plea is “not indebted,” the charge of the court should not concentrate the attention of the jury upon the single question of whether there was or was not a contract of employment.</p> <p>%. When the value of services is an essential element of the plaintiff’s case, and the plaintiff himself is the only witness on the point, it is error for the court to say to the jury that there seems to be no conflict in the evidence as to value, and that they should render a verdict for the value proved, if they find that the plaintiff was employed by the defendant This is to express an opinion that some value has been proved, and that the plaintiff’s testimony is credible.</p> <p>S. Where the plaintiff, if employed at all on the defendant’s credit, was called to treat a minor in a sudden and dangerous emergency, when the father was absent, the scope and duration of the employment are no less material than the fact of employment itself. It ought to be decided by the juiy whether, under the circumstances, the arrival of the father terminated the engagement, and if not, whether it continued operative after the services immediately necessary were rendered</p> <p>4. The mere fact that the defendant employed the plaintiff as a physician, is not decisive of the liability of the former to be personally responsible for the compensation. If there was a great and overwhelming calamity to the child of an absent parent, rendering medical aid instantly necessary, and the plaintiff comprehended the situation, and entered on the service without reasonable cause to believe that the defendant was engaging his own credit, the parent would be responsible as for necessaries, and the defendant would be treated as his agent to call the physician.</p>

<p>When it appeared from the answer of the sheriff, which was not traversed, that a city lot had been levied on by him, and an undivided half 'thereof claimed by a third person on the day of sale, and that he proceeded to sell the other half without re-levying and re-advertising, and that it was bid off by the plaintiff in fi. fa., and that he, the sheriff, thinking it doubtful that he could lawfully sell the undivided half without levying and advertising again, declined to make a deed to the purchaser, and to receive the money for the property sold, and when it did not appear that the purchaser objected to the payment of the money, and the reception of the deed, and when the plaintiffs in older fi. fas. ruled the sheriff for the money:</p> <p>Held, that the rule was rightly made absolute, and the judgment making' it absolute should not be arrested.</p> <p>See concurring- opinion of Bleckley, Judge.</p>

<p>A provision in the charter of a mining company, that the right-of-way over unoccupied lands, for the carriage of water necessarily used in gold mining, might be appropriated by the-payment of just compensation, is not an unconstitutional exercise of the right of eminent domain. The development of the mineral resources of the state, and the production of the metal from which our constitutional currency is stamped, are of public benefit.</p>

<p>New trial. Damages. Before Judge Crawford. Muscogee Superior Court. May Term, 1877.</p> <p>Report unnecessary.</p>

<p>Equity. Practice in the Superior Court. Before Judge Clark. Lee Superior Court. March Term, 1877.</p> <p>- • It is to be inferred from the record that a bill for injunction had been filed by Harris against one McLeod and Richardson as agent of Hines,- a Texan ; the bill itself is not in the record. On March 25,1867, Richardson filed an answer alleging, in brief, as follows: In 1859, he, as agent, sold to McLeod the land involved in this controversy; he took notes for the purchase money, and gave bond for titles. The notes were never paid; McLeod was unable to pay them ; the parties agreed to rescind the trade; it was done; the papers were surrendered. Defendant denies all privity in, or consent to, the trade between McLeod and Harris, or knowledge thereof, except from- rumor. McLeod having put some improvements on the j>lace, defendant allowed him to tarry awhile as a tenant at will, that he might not lose all benefit of his handiwork. He sold the land, and Harris bought with notice. Under the agreement mentioned, McLeod returned the premises to defendant, who placed his son and another in possession. In the absence of the agents, Harris seized the place and became master of the situation He has since retained it. He is insolvent. After these allegations, defendant contented himself with a single prayer — to be dismissed with his costs, in the usual form. It seems to be understood in the record that the bill was dismissed about 1870 — no dismissal appears, but it is treated as having taken place.</p> <p>In 1874, an order was granted making Hines a party defendant in place of Richardson, and time granted him to amend the. answer. In 1875, he did so, alleging, besides the facts above stated, that, in the progress of the litigation, complainant had been compelled to give to Richardson two bonds for the payment of rent, amounting to $1,500.00; that he was insolvent, but the bonds were good; that he had wrongfully held the place since 1867, of the annual value of $1,000.00. The answer was in the nature of a cross-bill,- and prayed that the bonds given by complainant might be used for this defendant’s protection; that the place be decreed to him, and an account and settlement be had for rent.</p> <p>The jury found for Ilines the premises in dispute and $2,075.70 mesne profits. Harris moved for a new trial; the motion was overruled, and he excepted.</p> <p>For the other facts see the opinion.</p>

<p>[Bleckley, Judge, having been o£ counsel, did not preside.]</p> <p>A deputy marshal of the United States cannot be sued for a neglect of official duty. Such actions should be against the marshal.</p>

Principal and security. Contracts. Pleadings. Before Judge Crawford. Harris Superior - Court. April Term, 1877.

Practice in the Supreme Court. Evidence. Presumptions. Master and servant. Eailroads. New trial. Before Judge Hall. Spalding Superior Court. August Adjourned Term, 1876. Mrs Sears brought suit against the Central Eailroad and Banking Company for the homicide of her husdand. On the trial, the evidence for plaintiff was substantially as follows : Deceased was the conductor of a freight train on defendant’s road. On the day of the accident, they arrived safely at Griffin.

Claim. Levy and sale. Sales. Liens. Before Judge Oraweoed. Talbot Superior Court. March Term, 1877. Young N. Edwards, defendant in fi. fa., was administrator of John Edward’s estate; as such, he sold 500 acres of land, which was bid off by IL Couch, who sold to defendant and Gibson. Gibson sold to defendant, who used the shares in the estate of his. four brothers to pay for the land; to raise money to pay his brothers, he sold the land to Chapman, who failed to pay for it.

<p>Corporations. Priucipal and agent. Service. Railroads. Before Mark EL Blandford, Esq., judge fro hao vice. Harris Superior Court. April Term, 1877.</p> <p>Report unnecessary.</p>

New trial. Jurisdiction. Equity. Before Judge Crawford. Muscogee Superior Court. May Term, 1877. Complainants filed their bill to have a certain equitable claim which they held against Varner & Ellington, set off against a judgment which the latter held against them for $226.50, principal. Complainants’ claim was for $400; they prayed a decree for the amount due them in excess of the judgment, and that it should be enjoined from proceeding against them.

<p>Equity. Injunction. Evidence. Deeds. Contracts. Estoppel. Before Judge Peeples. Fulton Superior Court. October Term, 1876.</p> <p>Reported in the. decision.</p>

<p>1. Title by prescription is good, and should be accepted by a vendee who has not stipulated for paper title only.</p> <p>2. Where the vendee of land, who is in possession under a parol contract of purchase, is tendered a good and solvent warranty of title, he must make his election, either to pay the purchase money, or surrender possession to the vendor.</p> <p>3. It makes no difference that the vendee has,made valuable improvements, and that there are outstanding judgments against a former owner of the land, which may possibly come against it. Non con-stat that they ever will come, and until they do, there is no damage.</p> <p>4. Where the verdict is clearly right under the evidence and the law applicable thereto, errors in the charge are generally immaterial.</p>

<p>Criminal law. Charge of court. Burglary. Before Judge Hill. Bibb Superior Court. April Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Arbitrament and award. Practice in the Supreme Court. Before Judge Crawford. Marion Superior Court. April Term, 1877.</p> <p>Reported in the decision.</p>

<p>1. Where a traverse of the sheriffs return of service alleges, on oath, that the return is false, and that defendant presents the traverse at the next term after notice by him of the sheriff's entry, and where both the plaintiff and the officer are made parties and called on to vindicate the return, the traverse cannot be dismissed, on mere motion, as filed too late.</p> <p>2. Affidavit of illegality, which alleges that the defendant was never served with any copy of the declaration and process, and never knew of the suit till long after judgment was rendered, is sufficient. Such an affidavit raises the question of service, to be tried under the rules of evidence applicable thereto, one of which is, that an official return, unless traversed in due time and proved false, is conclusive.</p>

<p>Judgments. Mortgages. Liens. Before Judge Crawford. Talbot Superior Court. March Term, 1877.</p> <p>The following, taken in connection with the opinion, sufficiently reports this case: A fi. fa. in favor of Andrews against one Ragland, founded on the foreclosure of a mortgage, was levied on certain land, which was claimed by Mathews et al. They claimed as purchasers at a sheriff’s sale made under a common law judgment against Ragland. The mortgage was older than the judgment, but younger than the debt on which.it was founded. The mortgage was defectively probated, but both plaintiff in the common law suit and claimants had actual notice of its existence. The jury found for claimants, and plaintiff excepted.</p>

<p>1. That a juror said, before the commencement of a trial, “that he was incompetent ; that be could not sit in the case ; that he had looked into it, and defendant would be hung without any doubt at all,” is prima facie evidence of disqualification, and, if not known to defendant or his counsel until after trial, and left unexplained by the juror, it is good ground for new trial.</p> <p>2. An explanatory affidavit attached to the record, but which was not before the judge on the hearing below, will not be considered in this court.</p>

<p>"Wills. Caveat. Fraud. Undue influence. Evidence. Witness. Attestation. Opinion. Before Judge Underwood. Polk Superior Court. February Term, 1877.</p> <p>Sufficiently reported in the opinion.</p>

<p>1. Only such questions' need be put to the jury under the act authorizing ¡special verdicts in equity cases, as will enable tbe jury fully to find tbe facts in issue and not admitted by tbe pleadings.</p> <p>2. Where tbe vendors sold to the vendee a homestead in lands and took the vendee’s notes therefor, and executed a bond for titles thereto to the vendee, and no part of the purchase money was paid in cash, and the vendors were insolvent:</p> <p>Held, that equity will rescind the sale and cancel the notes upon payment by the vendee to the vendors of the value of the rents while he held the lands and the amount of damage, if any, done thereto — especially if tbe ordinary had never approved the sale.</p> <p>3. On the trial of an equity case by special verdict upon written questions, the chancellor may decree a perpetual injunction, if tbe facts specially found demand it, without the finding by the jury in express words that a perpetual injunction be granted.</p>

<p>Equity. Judgments. Practice in the Supreme Court. August Term, 1877.</p> <p>Reported in the decision.</p>

<p>Continuance. Pleadings. Judgments. Before Judge "Wright. Worth Superior Court. April Term, 1877.</p> <p>Reported in the opinion.</p>

<p>1. Where a vendor, retaining the legal title, gave to the vendee a bond for title and took her notes for the purchase money of the land, and before the notes fell due and the money was paid, a judgment was - obtained against the vendor and the land levied upon, and the vendor was notified thereof but failed to relieve the land from the levy and incumbrance of the judgment, and the property was sold, and the vendee, to protect her possession, was forced to buy the title of the the purchaser at the sheriff’s sale, and the vendor was insolvent:</p> <p>Held, that the vendee may set up by equitable idea the partial failure of consideration in defense of the notes, and that a verdict for the balance due, after deducting from the notes the amount necessarily expended by her to make good her possession, will be upheld.</p> <p>2. The defense to the notes of the partial failure of consideration or recoupment is good, notwithstanding the fact that the vendor had the notes exempted as personalty — there being no homestead set apart in the land.</p>

<p>Administrators and executors. Judgmenfs. Principal and surety. Debtor and creditor. Before Judge Clark. Sumter Superior Court. April Term, 1877.</p> <p>Reported in the decision.</p>

<p>The special remedy provided for,by section 1970 of the Code, is not available to a person taking an absolute deed to land as security for a debt, where no bond for titles has been given to reconvey upon payment of the debt.</p>

<p>1. Where A trades to B a promissory note, before due, for land, and represents that tbe note is good, and secured by a mortgage which he holds against the maker to secure its payment and the payment of other notes retained by A; and without B’s consent, trades off the mortgage for stock to the maker thereof — canceling and annulling the same — and the maker of the note is sued to insolvency and bankruptcy: *</p> <p>Held, that A is responsible to B for the value of the note.</p>

<p>Judgments., Practice in the Superior Court. Before Judge Clark. Sumter Superior Court. April Term, 1877.</p> <p>Reported in the decision.</p>

<p>Ejectment. Deeds. Mortgage. Homestead. Before Judge Weight. Mitchell Superior Court. May Term, 1877.</p> <p>Beported in the opinion.</p>

<p>1. Lots of land covered by deed to a minor son are not tbe property of tbe father, so as to authorize the latter to convey to another the right to overflow such lots, though the father may have exercised other general acts of ownership over the land, the deed to the minor having been legally recorded.</p> <p>3. A parol easement to overflow land by adding eighteen inches to the height of a dam twelve feet high, will not, after such dam has washed away, entitle the transferee of the easement to erect a new dam sixteen feet eleven inches high, but such transferee will be responsible in damages for the overflow caused by the new dam.</p> <p>3. The amount of damage is a question for the jury, and where the evidence, though conflicting, is sufficient to sustain the verdict, this court will not reverse the presiding judge in refusing to grant a new trial on the ground that the verdict is against the weight of evidence.</p>

<p>United States Courts. Removal of causes. Before Judge Crawford. Quitman Superior coui't. November Term, 1816.</p> <p>Reported in the decision.</p>

Criminal law. Practice in the Superior Court. Verdict. New trial. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1876. Smith was charged with the commission of the offense of an assault with intent to murder. The jury found him guilty, but recommended him to the mercy of the court. He moved for a new trial, but the court overruled the motion ; whereupon he -excepted. The remaining facts, so far as material, appear in the opinion.

<p>Administrators and executors. Mortgages. Before Judge Bartlett. Greene Superior Court. September Adjourned Term, 1876.</p> <p>Reported in the opinion.</p>

<p>The creditors of an insolvent firm, for the purpose of stopping litigation, etc., entered into an agreement providing for the distribution of the funds of the debtors through a committee appointed from their own body. The court in which the litigation over such funds was pending, adopted the said agreement, and ordered that the same be taken as an interlocutory degree, and that the original case stand ■upon, the docket for further order. A portion of such creditors petitioned the court to compel the committee to allow certain claims. The committee and certain other creditors demurred to the petition. The demurrer was overruled, and they brought the decision, by writ of error, to this court:</p> <p>Held, that whether the committee be considered as acting in the capacity of receivers, or of creditors, their conduct was subject to the order of the court on the final hearing, and therefore the writ of error was prematurely brought.</p>

<p>1. When an attachment for contempt is issued on a rule absolute, under section 3956 of the Code, after return into the clerk’s office of a prior execution levied on land, the execution and the levy are both fundus officio. It is not indispensable to the legality of the attachment, that the levying officer should have made an entry dismissing or otherwise disposing of the levy.</p> <p>2. When the original rule nisi against an attorney at law requires cause to be shown, both against making the rule absolute and against being attached for contempt, an attachment may be ordered when the rule absolute is granted.</p> <p>3. After rule absolute and before attachment, the voluntary bankruptcy of the attorney, and the usual assignment of his effects, will not prevent the attachment from issuing. Nor will the pendency of the bankruptcy.proceedings protect him from arrest and imprisonment by virtue of the attachment; nor will a judge, at chambers, discharge him on habeas corpus because he testifies that he is utterly unable to pay the amount of the rule, or any part thereof.</p> <p>4. The imprisonment of a faithless attorney for contempt, committed by failing to respond to his client on a rule absolute for the money of his client which he has collected and not paid over, is not imprisonment for debt, and is not prohibited by the constitution.</p> <p>5. When the court has granted a rule absolute and ordered attachment to issue, no further order from the judge is necessary; and the clerk, not the judge, should issue the attachment.</p> <p>6. On habeas corpus at chambers, it is not competent to inquire into the truth of the facts adjudged by the rule absolute.</p>

<p>1. This court will not reverse the judgment of the judge of the superior court in overruling the exception to an auditor’s report, that the auditor disallowed a claim of the guardian for $72.00, expenses incurred in sending the ward out of this state and beyond the jurisdiction of its courts of ordinary and chancery, in order to prevent her marriage against the guardian’s wishes, the exception being before the judge without a jury, by consent, and the evidence disclosing no valid objection to the man whom the ward wished to marry.</p> <p>2. A creditor who fails to notify the executor of his debt against the testator until the legacies have been all paid and the estate settled up, can recover from a legatee who has received her legacy only her pro rata share of the debt, though the other legatees are without the state and the creditor is a Georgian, and the debt was contracted in Georgia; and if her guardian, who was the executor of the will, after he has divided the estate among all the legatees, and received and receipted for his ward’s legacy as her guardian, shall pay the whole debt, he will be allowed only her pro rata share as a charge against the ward — there being no evidence as to the solvency or insolvency of the other legatees.</p>

<p>Justice Courts. Practice. Judgments. Jurisdiction. Waiver. Before Judge Rice. Gwinnett Superior Court. March Term, 1877.</p> <p>Reported in the decision.</p>

<p>Constitutional law. License. Before Judge Clark. Sumter Superior Court. April Term, 1877.</p> <p>' Beported in the opinion.'</p>

<p>Machinists, and manufacturers of machinery, have no lien on real estate for machinery furnished, unless the machinery furnished is attached to, and becomes incorporated with, the realty for which it was furnished. If boxed up and never used about the mill, a judgment lien of older date than the judgment of the manufacturer or machinist, though younger than the record of the asserted lien, will be superior to such lien on the realty, and will take the money for which the realty sold. '</p>

<p>Debt created by, and judgment obtained against vendee, by third person, after deed to bim, but before decree on bill by vendor setting aside sale, tbe only equity of such bill being the vendor’s lien, such decree providing, also, for the satisfaction of the judgment for the purchase money, which was of prior date to that above-mentioned:</p> <p>Held, that the land was subject to the judgment of such third person.</p>

<p>Though the plaintiff's horses took fright, turned over his huggy, and threw it down the embankment of the street upon which he was driving, and thus he was injured, yet, if the city was negligent in constructing the embankment, in not providing it with necessary railing or other means of protection, and in not keeping the street in safe condition, and such negligence was the real cause of the injury, (the jury being the judge of these matters as questions of fact,) the plaintiff has a cause of action.</p>

Equity. Specific performance. Usury. Contracts. Novation. Before Judge Pottle. Hancock Superior Court. . October Term, 1876. William D. Underwood having died after the writ of error issued in this case, his administrator, James McCray, was made a party in this court in his stead. For the facts, see the opinion.

<p>Administrators and executors. Before Judge Hall. Butts Superior Court. September Term, 1876.</p> <p>Reported in the decision.</p>

<p>Where the process hears date after the sheriff’s return of service, the the return is no evidence and need not he traversed, and though the sheriff he dead, the defendant is a competent witness to prove he was not served.</p>

<p>1. The father of an infant may, by voluntary contract, release his parental power over his child to another.</p> <p>3. The agreement to care for the child, and the fact that the child is taken when sick, a,nd nursed into health and strength, and supported properly and comfortably for five years, are sufficient considerations to support such a contract; and the contract, though made with the wife by the child’s father, will be enforced if acquiesced in by the husband.</p> <p>3. Such contract is not revocable, except for sufficient legal reasons, such as bad treatment of the child and the like.</p> <p>4. Large discretion is vested in the judge of the superior court in habeas corpus cases, and this court will not .interfere with his judgment on law and facts, except it be manifestly abused.</p>

<p>Homestead. Mortgage. Practice in the Superior Court. Before Judge Buchanan. Troup Superior Court. May-Term, 1877.</p> <p>Reported in the decision.</p>

<p>Though the case depend solely on the credibility of the respective parties as witnesses, where the charge of the court touching the rejection of testimony by the jury was subject to be misunderstood, and the rule laid down for dealing with conflict, was somewhat obscure in expression, the verdict not being one that the evidence obliged the jury to render, the grant of a new trial by the presiding judge will not be interfered with.</p>

<p>[Bleckley, Judge, having-been of counsel in this case, did not preside.]</p> <p>1. Where the entire contract does not purport to he in writing, parol testimony is admissible to show all other terms and conditions, not inconsistent with the written part, especially if the writing be amere receipt for collection.</p> <p>2. An agent to procure a competent attorney to collect a note, though said note is without negotiable words, is clothed with power to make the contract" for its collection, unless his agency be restricted, and that restriction be made known to the attorney at the time the contract for collection is made.</p> <p>3. When the contract was that the agent should manage the entire case, and when the entire correspondence of the attorney abont the case was with him, and when he made the final compromise of the case, and the attorney paid him the money when collected, under theyompromise, and all this was in accordance with the instructions of the agent when the note was delivered by him to the attorney:</p> <p>Held, that the payee of the note must look to his agent for the money collected by the attorney and paid to the agent, and that he cannot recover from the attorney the money so collected under the compromise, even though the attorney neglected to take up from the agent the receipt given in the name of the payee when he paid the money collected to the agent.</p>

Auditors. Practice in tbe Supreme Court. Practice in the Superior Court. New trial. Before Judge Hall. Newton Superior Court. September Term, 1875. Bobert P. Usher died in 1859. On the first Monday in July of that year, Wm. P. Anderson qualified as his sole executor, and proceeded to act as such.

<p>1. When the object of parol evidence is to expose alleged usury covered up in writings under'the name of rent, it is error for the court, in charging the jury, to disparage the parol evidence, and intimate that if there be conflict the written evidence should prevail.</p> <p>2. When, at the instance of one in possession of land under bond for titles, a stranger advances money to discharge the balance due on the purchase, takes from the vendor a conveyance, and gives his own bond to make titles to the vendee, taking from the latter his note due at a future day, the transaction is prima facie a loan, in substance, with title to the land as security. An annual percentage on the amount advanced, though covered by separate and successive notes, and called rent, is not rent but interest, and if the per cent, exceeds the legal rate, the excess is usury.</p> <p>3. If the original contract was thus usurious, all payments on the so-called rent notes are to be treated as payments on the debt itself, to go in reduction of principal and lawful interest, no matter when they were made, nor under what changes as to the law of usury. If, however, the original contract was untainted, and successive agreements for usury under the name of rent were superadded, each being independent of the others, then each is governed by the law of usury existing at the time it was made, and payments thereon in excess of the legal rate of interest can be applied to the orignal debt by plea of set-off only, which plea must be filed within the period of limitation applicable to an action for recovering back usury.</p>

Practice in the Superior Court. Contracts. Pleadings. New trial. Before Judge Clark. Macon Superior Court. May Term, 1877. Reese brought assumpsit against S. Ware for the alleged breach of a contract by which plaintiff was to sell certain land, and defendant was to pay him $500.00 for so doing. He afterwards added a count of quantum meruit. Defendant then demurred to the declaration; the demurrer was overruled. Defendant having died, his executor was made a party.

<p>Actions. Deeds. Indorsement. Yenue. Before Judge Underwood. Haralson Superior Court. March Term, 1877.-</p> <p>Eeported in the decision.</p>

<p>Eailroads. Non-suit. Negligence. Before Judge Clark. Macon Superior Court. May Term, 1877.</p> <p>Eeported in the opinion.</p>

<p>Yendor and purchaser. Judgments. Liens. Before Judge Underwood. Paulding Superior Court. February Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Practice in the Superior Court. Amendments. Judgments. Administrators and executors. Statute of limitations. Before Judge Pottle. Taliaferro Superior Court. February Term, 1877.</p> <p>Beported in the decision.</p>

Appeals. Before Judge Johnson. Washington Superior • Court. March Term, 1877. Medlock sued Robison in the justice court for the ninety-third district G. M. Judgment was rendered for the plaintiff. Execution issued and was levied. Defendant filed an affidavit of illegality thereto on various grounds, which was overruled by the court, and he appealed.

Claims. Actions. Debtor and creditor. Before Judge Buchanan. Troup Superior Court. May Term, 1877. Plaintiffs brought complaint against defendants, under §3326 of the Code, for hire and deterioration in value of certain property levied on under an execution in favor of plaintiffs, claimed by one of defendants, with the other as his security, found subject and sold. The amount sued for was $430.00.

<p>Justice Courts. Jurisdiction. Before Judge Pate. Dooly Superior Court. March Term, 1877.</p> <p>Reported in the opinion.</p>

Appeal. Administrators and executors. Ordinary. Levy and sale. Practice in the Supreme Court. Before Judge . Bartlett. Greene Superior Court. March Term, 1877. An execution issued from the superior court of Greene county, in favor of Malvina M. Wilson and others, against James L. Brown, for $5,846.72, principal, $8.50 costs, with interest on the principal from March 18, 1876, and was levied upon certain property as belonging to the defendant.

<p>Service. Notice. Judgments. Minutes. New trial. Practice in the Supreme Court. Before Judge Clark. Macon Superior Court. May Term, 1877.</p> <p>Reported in the opinion.</p>

Continuance. Set-off. Before Judge Underwood. Eloyd Superior Court. January Adjourned Term, 1877.

<p>1. Injunction, at the wife’s instance, will not issue to restrain the husband. from collecting his choses in action, pending a suit for divorce, unless it is obvious that the fund will be put in peril by coming into his hands.</p> <p>2. Where the bill is not clear and distinct as to the existence and custody of an unauthorized power of attorney, and facts are not alleged which make a case of danger from its use; and, more especially, where the apprehended injury could be prevented by giving notice to a particular corporation, the bill should not be retained for the purpose of decreeing that the power be canceled.</p>

<p>1. A deed executed 29th December, 1874, could not be usurious — there being at that time no law against usury in this state ; and the plaintiff may recover upon such deed, though his declaration be in the statutory form, and though there be no abstract of the deed therein, where the defendant introduced the deed in evidence, and where the land covered by the deed was also embraced within another deed, an abstract of which was upon plaintiff’s declaration.</p> <p>2. A deed dated 8th of July, 1875, if tainted with usury, is void 'as title ; the act of February 19th, 1873, which repealed the usury laws in this state, having been itself repealed on the 24th of February, ' 1875.</p> <p>3. Whether the deed was so tainted with usury was a question of fact for the jury, and there being evidence thereof, though it may have been conflicting, this court will not interfere with the finding of the jury and the approval thereof of the presiding judge.</p>

<p>Injunction. Judgment. Belief act of 1868. Before Judge Harris. McIntosh County. At Chambers. August 27, 1877.</p> <p>Eeport unnecessary.</p>

<p>1. Where it is sought to render trust property subject to an execution against the cestui que trust, upon the ground that the consideration of the debt was supplies furnished for the use of the trust estate, evidence to the effect that such supplies were furnished for the use of a plantation owned by the beneficiary in another county, not embraced in the trust, was irrelevant.</p> <p>2. Where property is conveyed in trust, for the use of a married woman, free from the debts of her husband, for her natural life, the beneficiary to have the possession and the use of the house and lot, with the rents and profits of the same, for the benefit of herself and family, the trustee to have power to sell and reinvest, with the consent of the beneficiary, remainder to her children, an executory trust is created, and the property is not subject to levy and sale at law.</p> <p>3. Had the plaintiff alleged in his equitable plea, and proved at the trial, that the rents and profits of the trust property were more than what would be a reasonable support for the beneficiary and her family, the surplus would be decreed to be applied to her separate indebteness.</p>

<p>The evidence presented to the chancellor upon the hearing oí an application for injunction, should be embodied in the bill of exceptions, ' or be otherwise identified by him.</p>

<p>If, instead of resting on and pursuing tire strict law of new trials, a party enters into a consent order to file his motion within a given time after the adjournment of the court, and to file an approved brief of the evidence within the same time, he must abide by his bargain. Time is of the essence of the contract, and an excuse for delay should amount to Providential cause, or be disregarded.</p>

<p>A guardian of one minor child is the head of such a family of minor children, under the constitution and laws, as will entitle him to the same homestead and exemption, as if the family of minors embraced more than one child.</p>

<p>Sheriffs. Claims. Practice in the Superior Court. Before Judge Pottle. Oglethorpe Superior Court. October Adjourned Term, 1876.</p> <p>Reported in the decision.</p>

<p>New trial. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1876.</p> <p>Reported in the opinion.</p>

<p>On conviction of simple larceny for hog stealing, the punishment is confinement in the penitentiary, unless the jury recommend the defendant to mercy, in which event it shall be only fine or imprisonment in the common jail, or work in chain-gang, one or more; therefore, the the right of the jury to recommend to mercy is a most important right for the defendant, and the court should give it to the jury in charge, whether requested or not.</p>

<p>Guardian and ward. Contracts. Before Judge Bartlett. Putnam Superior Court. March Term, 1877.</p> <p>Eeported in the opinion.</p>

<p>Criminal law. Assault with intent to murder. Before ' Judge MoCutciien. Catoosa Superior Court. May Adjourned Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Equity will not restrain the security on appeal, to whom the judgment ■ was transferred, from collecting the condemnation money out of his principal, because the attorneys of the principal neglected their duty to attend to the principal’s case, though the principal was sick at the time.</p>

<p>1. Diligence requires that counsel for plaintiff in error sliould ascertain whether their case had reached the term of this court, to which it was by law returnable; if it has not, immediate steps should be taken by mandamus to cause the necessary papers to be forwarded.</p> <p>2. When a bill of exceptions has been certified and signed by the judge and filed in the clerk’s office of the court below, as required by law, then, in legal contemplation, this court acquires jurisdiction of the case, and the application to establish a copy thereof from that on file in the clerk’s office in the court below, in lieu of the lost original, should be made to this court, and not to the court below.</p>

<p>1. Where one of the sureties on a tax collector’s bond, executed in May, 1871, had a private arrangement whereby the collector and himself were to divide the profits of the office, and they did divide accordingly, and the collector afterwards proved a defaulter to the public, a co-surety who has been forced by suit upon the bond to pay oil a part of the default, has a right of action for his reimbursement against the surety who shared with the collector in the profits of the office, the share thus realized by the latter being sufficient in amount to indemnify all the sureties.</p> <p>3. Where the action is by a nominal plaintiff for the use of the person who should have heen the sole plaintiff, the declaration is amendable, (56 Ga., 554,) and the supreme court, to uphold a recovery which is correct in substance, will direct an amendment striking the name of the nominal plaintiff and substituting the usee as suing in his own right.</p>

<p>Injunction. Tax. Banks. Municipal corporations. Before Judge Grice. Bibb County. At Chambers. October 9, 1877.</p> <p>Reported in the opinion.</p>

<p>Sheriff. Levy and sale. Notice. Yerdiet. Before Judge Wright. Decatur Superior Court. May Term, 1877.</p> <p>Daniel Humphrey filed his bill against John M. Donalson and the sheriff of Decatur county, making, in brief, the following case:</p> <p>The sheriff levied a fi.fa. in favor of Donalson on three lots of land belonging to complainant, advertised them only three wreeks, gave no notice of levy, and brought them to sale on the first Tuesday in January, 1872. One Jos. Mathews became the purchaser for $885.00. Subsequently, on the same day, the sheriff again exposed the lots for sale. One was bought by Donalson for $275.00, the other two by Mathews, for $425.00, which were much less than their respective values. Mathews has since returned his to complainant. Between the two sales, complainant tendered to the sheriff, by his agent, the full amount of the fi. fa.— Mathews waiving his right and agreeing thereto. The sheriff refused to accept it, but proceeded with the second sale. After the second sale, complainant bargained with the purchaser at the first sale to take his bid and stand in his place; and they offered such amount to the sheriff and demanded a deed, which was refused. The bill charges fraud, notice of facts, collusion, and an inordinate desire on Donalson’s part, for the possession of said land. The prayer ■was for cancellation of the deed to Donalson; for a decree that the sheriff receive the amount of the fi. fa. and dismiss the levy; and for injunction to restrain further proceedings to take possession of the land.</p> <p>Defendants filed an answer in the nature of a cross-bill, which was, in substance, as follows:</p> <p>There were two fi. fas. in the hands of the sheriff against complainant, the one described in the bill for $103.27, and an older one in favor of Bates, Dickinson & Co., for $290.45, both claiming the proceeds of the sale. Levy 'was made under the former fi. fa., notice given according to law, the sale fully and legally advertised, and made on the first Tuesday in January, 1872. Defendant, Donalson, denies all knowledge of any irregularity which may have occurred, if any did. At the sale, Mathews bid in the property for $885.00; but when requested to pay the money, he declined to do so, offered to pay the amount of the Donalson fi.fa., and refused to pay more. This the sheriff refused to receive, on the ground that the older fi. fa. would take the proceeds and Donalson get nothing; he stated to Mathews that he would resell the land. After full opportunity for Mathews to pay his bid had been given, the land was again exposed for sale, it being still within legal hours, and sold. Donalson, by his agent, bought one lot for $275.00, which he paid in cash. Afterwards, and after the expiration of the hours of legal sale, one Russell asked Donalson’s agent if he would allow complainant to pay the whole of the money and take the title. This he declined to do, on the ground that Donalson had already paid for the land. Defendants deny any knowledge of a bargain by which complainant was to be substituted for Mathews, as purchaser at the first sale. Both Mathews and complainant were present at the last sale, and made no objection on account of want of advertisement or notice. Defendants deny all fraud or collusion.</p> <p>Humphrey and Donalson having died, their administrators were made parties.</p> <p>Defendants amended the answer by alleging that Humphrey died possessed of the lot in controversy, and his administrator still holds it, and praying that possession be decreed to them, with mesne profits.</p> <p>The evidence was conflicting, especially as to whether the notice and advertisement were regular; and if not, whether Donalson knew of it.</p> <p>The jury found for defendants the land, with $50.00 per annum mesne profits. Complainant moved for a new trial, on the following, among other grounds:</p> <p>1. Because the verdict was contrary to law and evidence.</p> <p>2. Because the court charged as follows: “ If you believe from the evidence, that the tenant in possession was not notified according to law, or the advertisement was not published in a gazette, as required by law, for four weeks prior to the sale, that would not affect the purchaser who had no notice of it, but if the plaintiff in fi. fa. — the purchaser of this lot of land — did have notice (and you must determine this from the evidence) before the sale took place, that sale would be illegal, and could be set aside.”</p> <p>3. Because the court charged as follows: “The sheriff did have the right to re sell on the same day, without further advertisement, provided it was within the lawful hours of sale.”</p> <p>The motion was overruled, and complainant excepted.</p>

<p>1. A corporation engaged in the business of making and repairing machinery, was entitled to the lien of a machinist, under section 1966 of Irwin’s Code, the same as a natural person so engaged.</p> <p>2. When the property subject to a duly recorded machinist’s lien was sold under legal process before any suit was brought to enforce the lien, and before the time for suit had expired, the lien attached upon the proceeds of the sale in the hands of the officer. Irwin’s Code, • §§ 1961,1962. Any writing importing an assertion of the lien, which came to the hands of the officer at or before the sale, was a sufficient notice to hold up the money, if the purpose of a more regular and direct notice was accomplished, and if the lien was afterwards, while the money was in court, urged as a claim upon the fund.</p> <p>3. A machinist whose lien has not been established by regular judgment, must, in asserting his lien upon the fund, prove all the facts requisite to the existence of the lien which he asserts. His lien will be recognized for only so much of his claim as he manifests to be within the law. Where some of the claim is a running account, and the rest is no part of the account, and, so far as appears, never was, but is covered by an accepted draft payable to the order of a third person, the two matters are, prima facie, separate, and each complete in itself. A record of the lien in time for the one may be too late for the other.</p> <p>4. Construction, or original furnishing and fitting up, being distinct in its nature from subsequent repairs, the law, in the absence of evidence to the contrary, will presume that it took place under a distinct engagement.</p> <p>5. Where a machinist merely manufactured or sold materials for repairing machinery, and did not concern himself with uniting the materials to the machinery, he was not entitled to a lien for the price, under section 1966 of Irwin’s Code. Nor was he entitled to such lien for repairs made at his shop on detached parts of machinery brought there to be mended, if he did not detach, nor restore them to position These propositions might not hold good, if there was a general contract for keeping the machinery in repair for some period of time, and the sales and labor were in part execution of that contract.</p> <p>6. On a motion to distribute money, where several independent claimants compete for the fund, and the whole is awarded to one, some of the defeated claimants may move for a new trial without making the others parties to their motion. The successful claimant, and the custodian of the fund are the only necessary parties besides the movants themselves.</p> <p>7. When the presiding judge has entered on the motion for new trial the word “approved,” and signed the same, it is a sufficient verification by him of the matters of fact recited in the motion.</p> <p>8. When the motion for new trial was heard and decided at chambers (under an order granted in term) on the 18th, and the brief of evievidence was agreed upon by counsel, in writing, as correct, the fact that the judge’s approval, as entered and signed thereon, is dated the 16th, the same day on which the certificate to the bill of exceptions bears date, is not material. The brief is well enough identified by such approval, and may come up as a part’of the record.</p> <p>9. Where it appears that the judge refused to charge so and so, but there is no direct statement that he was requested, either in writing or otherwise, it should not be assumed in the supreme court, over his refusal to grant a new trial, that a request was made in proper time and manner.</p>

New trial. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1876. Plaintiff brought suit on a policy of insurance on the life of his intestate in defendant’s company. It was admitted that if there was any liability, it was for $2,724.42. The evidence, besides the policy itself, was, in brief, as follows: Deceased had been a man of considerable property. He was a farmer, and superintended the management of his own business.

<p>1. Service of the bill of exceptions must appear on the bill itself. A paper, accompanied by the certificate of the deputy sheriff of the court below, that it is a true copy of the bill of exceptions, and that ■ he had served a copy on the defendants in error on June 18, 1877, is no evidence of service in this court.</p> <p>2. If such copy and certificate were evidence, the judge having Signed the bill of exceptions on June 7th, the service was too late.</p>

<p>1. When a hank, having taken a solvent hill for collection, is, before it matures, instructed to allow it renewed for a further term of credit, on condition that a solvent indorser shall be given on the new instrument, and the bank suffers the renewal to be made without such in dorser, surrendering the former bill to the acceptor, and reporting by its cashier that a renewal has taken place in conformity to instructions, and the holder is damaged by reason of the acceptor becoming insolvent pending the extended term of credit, the bank is liable for the damage actually sustained.</p> <p>2. Whether, on the question of damage, the solvency of the drawer is material or not, depends upon his equitable relation to the debt, upon . the diligence he had a right to expect, and upon the consequence to him of any failure in such diligence. If the holder would have no right to resort to him for payment, by reason of the same violation of instructions complained of in the action, his ability to respond ' would make no difference.</p> <p>8. In an action against a bank touching a bill received by it for collection or renewal, and for violating instructions in respect to the same, the law implies a contract on the part of the bank to obey instructions, and on the part of the bailor to pay reasonable compensation; and the omission of proper allegations as to such implied matters, will not render the declaration fatally defective. It is amendable.</p> <p>4 Where, on motion of the plaintiff, the court below has granted a first new trial, the supreme court, in reviewing the decision, will not be over-strict in squaring the evidence with the declaration. If the ■ evidence considered broadly in its main features, seems to envelope a solid, sound case, and the declaration can be amended to fit it, the judgment granting a new trial will be affirmed.</p> <p>5. When the verdict is for the defendant, a new trial granted, and the defendant brings his writ of error, exceptions taken by him in the progress of the trial, and entered pendente lile, need not be considered, though error be assigned thereon; for, as the verdict was in his favor, it is apparent that the matters ruled against him in the course of the trial, did not influence the main .result.</p>

<p>1. That to maintain the trust in this case, it is necessary that the cestui que trust should not have been of sound mind when the will took effect, is res adjudicates.</p> <p>2. Under the Code there are various degrees of uhsoundhess of mind, one of which is incapacity to manage the ordinary business of an ordinary person in the affairs of life. This degree, from whatever cause occurring, will uphold the creation and the continuance of a trust.</p> <p>3. The reasons of witnesses for their opinions on the question of mental soundness, are not for the consideration of the court, but for the ■ jury only.</p> <p>4. The declarations of a testator at the time of making a will, in which he gives to a trustee property in trust for his son, are not admissible to establish the son’s insanity or unsoundness of mind.</p> <p>5. Where the question is as to the value of certain bonds at the time they were received from the testator, the person chargeable with them, though a party to the cause, is competent to testify as to the value, and an actual sale of them in the market may be considered. And to rebut a charge of secreting the bonds or their proceeds, a 1 book kept, and exhibited to the family, showing a sale, and the amount thereof, may be admitted.</p> <p>6. Acts and conduct of the cestui que trust, from boyhood to the time of trial, were admissible to illustrate his capacity. .</p>

<p>Where a farmer,’a part of whose ordinary business was the purchase and cultivation of land, bought a tract of land on Saturday, and agreed to consummate the trade on the next day by signing the necessary papers, and did sign a note for the purchase money on that day (Sunday):</p> <p>Held, that the contract was illegal, and, in a suit on the note, the courts will not assist in its collection.</p>

Principal and security. Principal and agent. Corporations. Before Judge Gibson. Richmond Superior Court. October Term, 1876. The pleadings are sufficiently stated in the opinion. The plaintiff introduced in evidence the bond sued on, dated November 21,1871. Also the report of the auditor appointed in the case, who found that R. Habersham Wylly, as principal, was indebted to the plaintiff on an account running from November, 1871, to October, 1874, balance of $6,346.06.

<p>Principal and surety. Indorsement. Contracts. Before Judge Clark. Webster Superior Court. March Adjourned Term, 1877.</p> <p>Eeported in the opinion.</p>

<p>That a justice of the peace, in the state of Alabama, was one of the attesting witnesses to a deed executed in that state, and indorsed thereon a certificate to the effect that it was voluntarily executed, is not sufficient to admit it to record in this state.</p>

<p>Equity. Debtor and creditor. Levy and sale. Executors and administrators. Executions. Before Judge Buchanan. Butts Superior Court. March Term, 1877</p> <p>Report unnecessary.</p>

Jurors. Practice in the Superior Court. Criminal law. Principal and surety. Bonds. Before Judge Kiddoo. Terrell Superior Court. November Term, 1876. An indictment for assault with intent to murder was found against £' Jeff Wlieeler;” a warrant issued and recognizance was taken, signed by “A. J. Wlieeler” as principal, and ITuson and Sharpe, as sureties. On failure to appear, scire facias issued to forfeit the bond.

<p>New trial. Verdict. Practice in the Supreme Court. Before Judge Hall. Spalding Superior Court. February Term, 1877.</p> <p>This case arose on a rule to distribute money. The facts were, in brief as follows :</p> <p>In 1872, Grant and Griffin rented land from Dobbins and cultivated it, agreeing to pay five bales of cotton as rent. They stored the cotton raised with Clark & Cole. Some of it was sold, but the balance of eight bales remained so stored. Clark & Cole advanced about $290.00 on it, as was the custom with warehousemen to do ; the receipts specified that the cotton would be delivered to the first order presented after the payment of customary expenses and advances. The advances were made on six of the bales. On February 8, 1873, said cotton was levied on under a distress warrant in favor of Dobbins for the rent of his land. Clark & Cole claimed. By agreement, the cotton was sold by the sheriff, and the proceeds held for distribution. As to whether they had notice of this indebtedness when they made the advances, the evidence was somewhat conflicting, but preponderated on the side of want of knowledge.</p> <p>The jury found as follows: “We, the jury, find, first, in favor of Clark & Cole the amount of their claim, with interest ; and, second, in favor of Miles G. Dobbins. We find for Clark & Cole, principal and interest, $371.00. We find for Miles G. Dobbins, principal and interest, $480.00.”</p> <p>Plaintiff moved for a new trial, on various grounds. The court sustained the motion, unless claimants should write off from the verdict all over $290.00 ; which they did, and the motion was overruled. Plaintiff thereupon excepted.</p>

<p>Levy and sale. Partnership. Service. Judgments. Waiver. Debtor and creditor. Evidence. Res gestae. Witness. Juror. Verdict. New trial. Before Judge Ejdddoo. Quit-man Superior Court. May Term, 1877.</p> <p>Beported in the opinion.</p>

<p>Trusts. Levy and sale. Before Judge Kiddoo. Dougherty Superior Court. April Term, 1877.</p> <p>Report unnecessary.</p>

New trial. Jury. Before Judge Buchanan. Coweta Superior Court. March Term, 1877. The motion for new trial was based on substantially the following grounds: (1.) Because the name of the juror who acted as foreman was not in the box nor on the list. (2.) Because the verdict was contrary to law, evidence and the charge of the court. The other facts are reported in the decision.

<p>1. Where there is no probability, under the evidence that infants had knowledge of their rights when a sale of their property took place under a decree, the court should not charge that if they had such knowledge they would be affected by being present and failing to give notice.</p> <p>2. Evidence which is irrelevant to the issue, should not be admitted over objection.</p> <p>3. When the court below has granted a new trial, and the main ques■tions in tlie case call for a more thorough and exhaustive examination of the authorities than has taken place in the argument before the supreme court, a reversal would he improper. It is best to leave the case where it is, that further research and study may he brought to hear on the final result.</p>

<p>In junction and receiver. Practice in the Superior Court. Before Judge Harris. Appling County. At Chambers. April 25, 1877.</p> <p>Reported in the opinion.</p>

<p>1. When a plaintiff in execution levies his fi. fa. on the personal property of the principal defendant therein, sufficient to satisfy the same, and without the consent of the surety, who is also a defendant therein, dismisses said levy, such an act is prima facie an injury to the surety, and it is incumbent on the plaintiff to show that it was not, either by proving that the property levied on was not the property of the principal defendant, or other facts going to show that the surety was not injured by the dismissal, either by increasing his risk, or exposing him to greater liability.</p> <p>S. An order setting aside a judgment because based on a slave debt, is a mere nullity, and, therefore, should not be admitted in evidence upon the trial of a claim arising upon a levy of the execution founded on such judgment.</p>

Criminal law. Evidence. Witness. Experts. New trial. Before Judge Pottle. Hancock Superior Court. April Term, 1877. Held: and I said that as it was near they could call him, and insisted upon his walking down to the lower corner of the square. He appeared anxious to leave me.

<p>Trustees. Bonds. Parties. Principal and surety. Before Judge Hall. Eockdale Superior Court. March Term, 1877.</p> <p>Suit was brought in the name of John I. Hall, judge of the Flint Circuit, for the use of T. W. Watkins, trustee, on the following bond:</p> <p>“ State oe Georgia — Newton county.</p> <p>“ We, Pleasant B. Jones, as principal, and Francis M. Nix and Elias Woolley, securities, acknowledge ourselves held and firmly bound unto John J. Floyd, one of the judges of the superior courts of said state, (and thereby one of the chancellors of said state,) and his successors in office, in the sum of six thousand dollars, subject to the following conditions : The condition of the above obligation is as follows: Whereas, said Pleasant B. Jones has been appointed (upon the application of the eestui que trust) trustee for Nancy Watkins (wife of Bennett Watkins, of said county) and her children, to hold for the separate use of the said Nancy, to be equally divided between her children at her death, the following property, to wit: One negro woman named Rena, and her child Sarah, and four hundred dollars; and also one equal share of the estate of Edward Nix, late of said county, it being one-eleventli part of said estate, after paying all the legacies bequeathed in the will of said Edward Nix. Now, should said Pleasant B. J ones well and truly do and perform all and singular the duties required of him as trustee as aforesaid, agreeably to his appointment and such as the law charges to him, and also well and faithfully account of and concerning his said trust, then this obligation to be void, otherwise of full force.</p> <p>“ This July 11, 1861.</p> <p>“ [Signed]</p> <p>“P. B. Jones, [L.S.] '</p> <p>“ F. M. Nix, [L.S.]</p> <p>“ Elias Woolley, [L.S.] ”</p> <p>In addition to setting out the above obligation, the declaration alleged the following facts:</p> <p>Judge Hall was Judge Floyd’s successor. In 1873 Jones died intestate and insolvent; there is no repiresentation of his estate. In 1871 Watkins was duly appointed and qualified as trustee. The bond sued on was broken in this : Jones received, as trustee, $2,500.00; but instead of applying it according to the trust, or making returns to the proper court, he kept it and applied it to his own use. Defendants refused to pay the sum so due.</p> <p>By amendment a further breach of the bond was alleged in this : E. M. Nix, executor of Edward Nix, was indebted to Jones, as trustee, $3,500.00, with interest from 1860, that amount being due for 'the use of the cestui que trust under the will of Edward Nix, deceased, in 1859. Jones failed and neglected to collect such debt, and it has never been collected, being so lost to the cestui que trusts, to the injury, etc.</p> <p>On demurrer, the declaration was dismissed for non-joinder of Jones or his representative, and plaintiff excepted.</p>

<p>Where rented land, upon which there was a growing crop, was sold under an execution against the landlord, and the tenant evicted, the consideration of the rent note given to such landlord failed; if the tenant re-entered under the purchaser at such sale, the right to collect the rent was in the latter.</p>

<p>Injunction. Equity. lies adjudieata. Interpleader. Deeds. Evidence. Multifariousness. Before Judge Underwood. Eloyd County. At Cbambors. November oth, 1877.</p> <p>Report unnecessary.</p>

Bankrupt. Homestead. Before Judge Wright. Mitchell Superior Court. 'May'Term, 1877. An execution in favor of Robinson & Co. was levied upon certain land as the property of Burtz, the defendant infi. fa. He claimed it for his family, as having been set apart to him as a homestead by the United States district court for the southern district of Georgia, under the bankrupt law of the United States.

<p>Criminal law. Oertiorwri. Practice in the Superior Court. Before Judge Hall. Newton Superior Court. March Term, 1877.</p> <p>Report unnecessary.</p>

<p>Municipal corporations. Mortgage. Powers. Bonds. Tax. Before Judge Underwood. Eloyd Superior Court. January Adjourned Term, 1877.</p> <p>Adams and J. W. Bones, as trustees, filed their petition for the foreclosure of a mortgage given by the. mayor and council of the city of Rome, on the water-works in that city, to secure the payment of certain bonds and the coupons thereto attached. Default in the payment of the interest had been made, and this proceeding was instituted under a request from certain bondholders, by the trustees under the mortgage. Rule nisi issued, and in answer thereto the respondent set up the following objections :</p> <p>1. Because the bonds and coupons sought to be secured were issued without authority of law, and contrary to the provisions of the act of September 28th, 1870, under which it is claimed they were issued, in this, that a sanction of a majority of the qualified voters of Rome was never obtained. On the 5th day of November, 1870, when the matter was referred to a vote of citizens, there were not less than four hundred qualified voters in Borne, only one hundred and eighteen of whom voted — ninety-six for, and twenty-two against the proposition, as will appear by reference to the report of the managers of said election, entered upon the minutes of council. For this reason respondent says that said bonds and coupons are null and void, and the city not liable thereon.</p> <p>2. Because the proj>erty embraced in the mortgage consists alone of what is known and described therein as The Home City Water- Worles, built by the city at great expense, under the provisions of its charter, for the purpose of protecting the property of its citizens from loss and destruction by fire, and also for the promotion and preservation of the health of the people residing in its limits, all of which purposes were, in the opinion of the council, necessary to the general good of the city, and eminently secured in the construction of the water-works, and all of which would be seriously endangered, if not totally defeated, by a sale and wresting them from the control of the city authorities. For this reason respondent says that this property was not, and is not the proper subject of a mortgage, nor of a sale under the foreclosure thereof.</p> <p>3. Because even if the bonds and coupons were properly issued, and constitute a valid debt against the city, the mayor and council could not make a valid sale, nor create a lien by mortgage, without the sanction of a majority of the qualified voters of the city, or at least without the approval of a majority voting at an election ordered for that purpose ; the same authority was necessary to justify a sale of the property, or the creation of the lien, which was required to authorize the construction of the works.</p> <p>4. Because the public interest would be greatly prejudiced by a sale under the foreclosure, and the property seriously sacrificed at a price far below its value in view of the purpose for which constructed by the city; and it would contravene a public policy which looks to the promotion of a public interest.</p> <p>5. Because the general laws of the land, and the particular law under which it is claimed these bonds and coupons were issued, prescribe a different mode of enforcing the collection of these debts, to-wit: by taxation, through the municipal officers of the city. The means thus offered and secured to bondholders are ample for this purpose, and no other means can be resorted to. For this reason respondent denies the authority of this court to entertain jurisdiction in this proceeding.</p> <p>To this answer petitioners demurred. The demurrer was overruled, and they excepted.</p> <p>The petition and rule nisi were then dismissed, and they again excepted.</p>

Lien. Fertilizers. Before Judge WrighL Mitcbell Superior Court. May Term, 1877. Liard wick foreclosed against Burtz a lien for fertilizers, and had the execution based thereon levied upon certain cotton as the property of the defendant. The latter filed an affidavit that the article sold was worthless. The lien was dated May 10th, 1873, and covered the crops for that year, and every subsequent year until payment was made.

<p>Practice. Jurisdiction. Justice Courts. Appeals. Before Judge Lester. Cobb Superior Court. March Term, 1877.</p> <p>Reported in the decision.</p>

<p>1. Accommodation indorser of a note payable, on its face, at a chartered bank, has a right to assume that it is intended for negotiation at such bank, unless otherwise informed, and is entitled to notice of non-payment.</p> <p>2. Prepayment and acceptance of interest to a given time, on a note past due, is evidence of a contract for indulgence until the time has expired; and if no stipulation to the contrary appears, an unconditional contract will arise by implication.</p>

, Title. Homestead. Husband and wife. Evidence. Debtor and creditor. Before Judge Buchanan. Troup Superior Court. May term, 1877. To tbe report in the opinion, it is only necessary to add that the jury found the property subject; claimants made a motion for a -new trial, which was overruled, and they excepted.

<p>Practice in the Supreme Court. August Term, 1877.</p> <p>Eeport unnecessary.</p>

Administrators and executors. Attorneys at law. Trusts. Before Judge Underwood. Chattooga Superior Court. March Term, 1877. Plaintiff brought complaint against Cleghorn, as administrator of Dunlap Scott, deceased, for $135.50, principal, with interest, alleged to have been collected by the intestate as an attorney at law for plaintiff.

<p>1. An order to “pay this man” is the equivalent of an- order to pay to bearer, and an indictment for forgery may be predicated thereon, even though it be not dated.</p> <p>2; The offense nefed only be set forth in the language of the Code, or so plainly that the nature of the offense may be readily understood by the jury.</p> <p>3. Forging and uttering forged paper, being grades of the same offense, may be joined in the same count.</p> <p>4. Where the order was directed to “Mr. Smith,” and the'indictment charged its forgery and utterance with intent to defraud Joseph Smith, a merchant on McDonough street, evidence that it was pre- . sented at his store was properly admitted.</p> <p>5. Writing acknowledged by the defendant to have been done by him. was admissible for comparison with the forged order.</p> <p>6. Good character is only available as a defense in doubtful cases</p> <p>7. The nature of the instrument forged being in question, there was no error in charging §4451 of the Code, in regard to the forgery of instruments not previously provided for.</p> <p>8. The verdict is supported by the evidence.</p>

<p>1. Where a legatee also claims title under a parol gift from the testator, the claimant is not a competent witness to prove such gift, the testator being dead.</p> <p>2. Where the testator, after making his will containing a specific devise to the legatee, placed her in possession of the property, the title did not vest absolutely so as to prevent tbe property from being' assets, and to render the assent of the executors to the devise unnecessary.</p>

<p>The Code, section 4094 to 4098, furnishes a summary remedy for the abatement of nuisances, public or private: 18 Qa., 580. That the remedy would not prove effectual, ought not to be anticipated, at least by a reviewing court, where'the chancellor, upon a considera- . tion of all the facts, has denied injunction on account of the adequacy of the legal remedy: 2 Kelly, 154; 3 lb., 140.</p> <p>Jackson, Judge, dissented.</p>

Guardiau aud ward. Settlemeut. Before Judge Hall. Upson Superior Court. May Term, 1877. This was an appeal from the decision of the ordinary upon a citation to a guardian for a settlement with her ward. The evidence for plaintiff made, in brief, the following case: Plaintiff was the daughter of defendant, C. M. Reviere, and her ward. Plaintiff’s father died in 1859, and defendant, as guardian of plaintiff, received for her $3,735.00 from the estate.

<p>Upon the trial of an action for damages for breach of contract in the building of a house, it was error for the court to charge that the plaintiff might recover reasonable counsel fees, that is a matter for the consideration of the jury, without adding the qualification, “if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”</p>

<p>Practice in the Supreme Court. Landlord and tenant. Lien. Before Judge Underwood. Eloyd Superior Court. January Term, 1877.</p> <p>Eeported in the opinion.</p>

<p>Criminal law. Sentence. County matters. Constitutional law. Habeas corpus. Before Judge Kiddoo. Quit-man County. At Chambers. July 2, 18YY.</p> <p>Reported in the opinion.</p>

Mandamus. Practice in the Superior Court. Before Judge Harris. Glyun Superior Court.

<p>Injunction. Tax. Municipal corporations. License. Before Judge Tompkins. Chatham County. At Chambers. January 9, 1877.</p> <p>Reported in the opinion.</p>

Jurisdiction. Courts. Injunction. Taxation. Before Judge Tompkins. Chatham Superior Court. May Term, 1877. Several Loan Associations joined in a bill, claimed that they were exempt from taxation, and prayed injunction against tbe tax collector and sheriff to restrain the collection of taxes levied upon them. Defendants demurred to the bill, which demurrer was overruled. Upon argument on the merits of the bill the injunction was refused, and complainants excepted.

<p>Insurance. Evidence. New trial. Contracts. Principal and agent. Waiver. Before Judge Clark. Sumter Superior Court. April Term, 1877.</p> <p>Reported in the, decision..</p>

Homestead. Mortgage. Claim. Illegality. Heeds. Evidence. Before Judge Buchanan. Troup Superior Court. May Term, 1877. In May, 1866, Borders executed to Frost a mortgage on certain land situate in Troup county. In February, 1868, this property was set apart to Borders and family as exempt, under section 2040 et seq., of Code. Subsequent to this the mortgage was foreclosed, to which proceeding Borders made no defense.

<p>Sheriff. Contempt. Levy and sale. Before Judge Crawford. Stewart Superior Court. October Term, 1876.</p> <p>Eeported in the opinion.</p>

Constitutional law. Judgments. Amendments. Administrators and executors. Statute of Limitations. Equity. Debtor and creditor. Contirbution. Before Judge Crawford. Muscogee Superior Court. May Term, 1876.

<p>Equity. Judgments. Injunction. Before Judge Mc-Outoi-ien. At Chambers. Bartow county. June 1, 1877.</p> <p>Reported in the opinion.</p>

<p>1. Charge upon, assumed state of facts, error.</p> <p>2. Where the "building of a public bridge is let out by contract, and the county fails to take the bond required by §6'/l of the Code, it is liable for damages resulting from its defective construction, even though the injury complained of occurred more than seven years after its completion.</p> <p>Bleckley, Judge, dissented.</p>

<p>Homestead. Mortgage. Before Judge Bartlett. Jones Superior Court. October Term, 1876.</p> <p>Report unnecessary.</p>

<p>Homestead. Debtor and creditor. Estoppel. Before Judge Ha'll. Pike Superior Court. April Term, 1877.</p> <p>Beported in the opinion.</p>

<p>Equity. Trusts. Before Judge Tompkins. Glynn Superior Court. May Term, 1877.</p> <p>Eeported in tbe decision.</p>

<p>Negotiable instruments. Pleadings. Indorsement. Practice in the Supreme Court. Lien. Fees. Amendment. Before Judge Hill. Houston Superior Court. November Term, 1876.</p> <p>The City Bank of Macon, on November 2, 1874, brought complaint against George S. Haslam, Jr., and Mims S. Ware, as executor of Shadrach Ware, deceased, for $1162.79, besides interest, alleged to be due “ on a certain instrument in writing in the form of a draft, dated June 7,1873, signed by said TIaslam on the face and back thereof, and by said Shadraeh on the back, requesting Campbell & Jones to accept the same for the accommodation of said George S. Ilaslam and said Shadraeh, which the said Campbell & Jones did, due five months after date.” Attached to the declaration was a copy of the instrument sued on. It was in the form of a draft, embracing within it a factor’s lien on the drawer’s growing crops and personalty, to secure the repayment of the advance and ten per cent, counsel fees; also a promise to deliver to drawees sufficient cotton to pay off the obligation at maturity. Across the face of this paper was written the firm name of Campbell & Jones. It was indorsed by George S. ITaslam, Jr., and S. Ware.</p> <p>Ware, executor, pleaded in substance, as follows :</p> <p>1. The general issue.</p> <p>2. That testator was only a security on the note or draft; that both before and after said paper matured, this defendant notified the plaintiff, in writing, to proceed at once to collect the same out of the principal, George S. ITaslam, Jr. That this notice was given in' October and November, 1873, and in January, 1874, whilst no proceeding was taken against said TIaslam until November, 1874.</p> <p>3. That at the time said paper matured, said George S. TIaslam, Jr., had in Campbell & Jones’ warehouse, in the city of Macon,-bales of cotton, and this defendant notified the plaintiff, in writing, that said cotton was there stored, subject to the draft sued on, and to proceed to assert .its lien theron, which plaintiff failed to do for more than three months after said notice.</p> <p>4th. That the plaintiff held other claims against said ITaslam, which had no lien.on the cotton in possession of Campbell & Jones, and that notwithstanding the written notice to plaintiff to proceed to assert its lien, it failed and refused to do so, but that on the contrary it allo'wed said cotton to be sold, and the proceeds to be applied to the payment of the other notes which it held against said TIaslam.</p> <p>According to the bill of exceptions, at the trial term, long after the pleas were filed, the plaintiff amended by adding, in substance, the following averment: Petitioner further shows that George S. Haslam Jr., and Mims S. Ware, executor, are indebted to it on a certain promissory note, made by said defendants in the form of a bill of exchange, drawn by the said George S., on Campbell & Jones, payable to the drawer’s order, with the names of the said defendants written on the back of said bill, and accepted by the said Campbell & Jones, for the accommodation of said defendants.</p> <p>As to this amendment the record is silent.</p> <p>To the proposition to amend at the time when made, the defendant, Ware, executor, objected. The objection was overruled, and he excepted.</p> <p>To the proposed amendment he objected, as being illegal and not in conformity to the statute, and because it contained new and distinct causes of action. These objections were overruled, and he again excepted.</p> <p>He then demurred to the declaration as amended, upon the following grounds:</p> <p>1. Because the acceptors were not joined in said declaration — that, as the plaintiff had elected to treat two out of the four parties to said paper as joint obligors, he was bound to join all of the parties, to-wit: the drawers, acceptors and indorsers, in the same suit.</p> <p>2. Because the defendant’s testator was only an indorser, as appeared from the declaration and the instrument thereto annexed, and defendant, as his legal representative, should have been sued in that capacity, and not as a joint obligor.</p> <p>3. Because the amendment set forth new and distinct causes of action.</p> <p>The court overruled the demurrer, and defendant excepted.</p> <p>The facts presented by the testimony, so far as material, are stated in the opinion.</p> <p>The court charged the jury as follows: “ If you are satisfied from the evidence, that Campbell & Jones accepted the draft sued on as accommodation acceptors, at the request of, and for the benefit of, Shadrach Ware, they, at the time, having no funds of the drawer in their hands, accepting it only on condition that said Ware had indorsed, or would indorse, said draft, to indemnify and protect them from the payment of the same as such acceptors, then the plaintiff would be entitled to a verdict for the full amount of the principal of said draft, with interest on the same from the date thereof, at the rate of ten per cent, per annum, and also ten per cent, on the amount of principal and interest due on said draft at the date of trial, for attorneys’ fees, against the said George S. Iiaslam, Jr., and the defendant, Ware, as executor of Shadrach Ware, deceased.” To this charge the defendant, Ware, executor, excepted.</p> <p>The jury found for the plaintiff $1,162.79, principal, with interest at 10 per cent, per annum, and 10 per cent, counsel fees.</p> <p>The defendant, Ware, executor, assigns error upon each of the above grounds of exception.</p>

<p>Claim. Levy and sale. Estoppel. Before Judge Wright. Mitchell Superior Court. November Adjourned Term, 1876.</p> <p>Eeported in the opinion.</p>

<p>Principal and security. Pleadings. Mistake. Fraud. Before Judge Hall. Clayton Superior Court. March Term, 1877.</p> <p>Beported in the opinion.</p>

<p>New trial. Newly discovered evidence. Before Judge Wright. ■ Decatur Superior Court. November Adjourned Term, 1816.</p> <p>Reported in the opinion.</p>

<p>[This case was argued at the last term and decision reserved.]</p> <p>Doubt is to be g-ivea in favor of the judgment below. The party-alleging error must make it appear</p>

<p>1. Objection that, the names of certain grand jurors who found the bill of indictment are not set out in full, but only by the initials of the given names, and that the name of no piosecutor is indorsed on the bill of indictment, are matters of form merely, and if good at all, are cured by verdict, and are not good in arrest of judgment.</p> <p>3. The evidence is ample to sustain the verdict of the jury, and the court properly overruled the motion for a new trial.</p>

<p>Equity. Homestead. Before Judge "Wright. Rockdale Superior Court. September Term, 1876.</p> <p>Report unnecessary.</p>

Dower. Estoppel. Equity. Homestead. Collateral security. Insurance. Auditor. Before Judge Clark. Lee Superior Court. November Term, 1876. Gilbert M. Stokes, as administrator of John Ealey, deceased, filed his bill against Mary E. Ealey, the widow of his intestate, John B. Eoss, and other creditors, to marshal the assets of such estate. Answers and cross-bills were filed.