Volume 60 — Georgia Reports

<p>This court will not interfere with the discretion with which a chancellor is invested, to appoint, or decline to appoint, a receiver, unless it has been manifestly abused.</p>

<p>1. Where a case was submitted to the court without the intervention of a jury, and the bill of exceptions to his decision contains the evidence before him, and is certified to be true, the evidence is thereby approved.</p> <p>2. Where an order has been granted that a fund in the hands of a receiver should he surrendered to trustees in bankruptcy, except so much as is legally necessary to defray' the costs and expenses of collecting the fund, and of securing it until the granting of the order of surrender; before a claim can be paid out of the fund, it is necessary to show specifically that it comes within the exceptions stated.</p> <p>3. Under the exceptions stated in t-he order fall the expenses of filing the bill and collecting the assets by the receiver, including counsel fees trom the filing of the bill up to the time the assets were demanded on the petition of the trustees, and the cost of services ef the receiver, and his counsel, to the time that the fund was ordered to be surrendered.</p> <p>4. Nothing should be allowed for counsel fees or costs of suing out attachments which originated within one month before the bankruptcy, and which, being dissolved by operation of law, were never carried to judgment.</p> <p>5. Nor should any costs or fees be allowed which were incurred in resisting the trustees after they had filed their petition.</p> <p>Jackson, Judge, dissented.</p>

Trusts. Sales. Title. Husband and wife. Before Judge Pottle. Richmond Superior Court. April Term, 1877.

<p>If a pending suit be dismissed by the plaintiff, and before such dismis sal tlie original cause of action had become barred by the statute of limitations, the privilege given by section 2932 of the Code, of renewal within six months, belongs personally to that particular plaintiff, and if a new suit be commenced, though on the same cause of action and within the six months, but by another and different x>lain-tiff, the pendency and dismissal of such former suit will not avoid die bar of the statute.</p>

<p>Non estfaetwm can only be pleaded at a term of the court after the first as an amendment to some plea theretofore filed.</p>

<p>1. Proof of debt in tbe bankrupt court by the judgment creditor against tlie principal, without an express reservation of the lien of the judgment, will discharge the lien of the judgment ; and the accommodation indorser or surety is discharged to the extent of the injury he thereby receives.</p> <p>2. If there be older liens, valid and operative, and pressed upon the bankrupt’s property, of amount sufficient to consume and exhaust it all, then the indorser is not injured, nor is he exposed to greater liability, nor is his risk increased, and, hence, he is not discharged ; and proof of the foregoing facts is admissible to show that he is not hurt by the proof of the debt in the bankrupt court.</p> <p>3. If a fi. fa. be amended after levy, the levy falls ; but if the order granting leave to amend, be not carried out, and the fi. fa. proceed without amendment, it does not.</p> <p>4. If the surety assent to the application of funds arising from the sale of the principal’s property to junior liens, and receives part of the money himself, he is not discharged by such application.</p> <p>5. Ah indorser, who is the counsel of the principal debtor in obstructing the collection of the debt by the creditor from the principal’s property, in every phase of the litigation between the judgment creditor and the principal, is not within the reason and spirit of the law which discharges sureties from liability by reason of the acts of the creditor, which injure the surety, or increase his risk, or expose him to greater liability when the acts of the creditor complained of grew directly out of the litigation conducted by the indorser, as counsel for the principal.</p>

<p>Practice in the Superior Court. New trial. Before Judge Buchanan. Troup Superior Court. November term, 1876.</p> <p>Reported in the opinion.</p>

Practice in the Supreme Court. January Term, 1878. The bill of exceptions recited that this case was submitted to the court, without a jury, upon an agreed statement of facts, which “ is hereto attached as a part of the record of case and made a part of this bill of exceptions.” The certificate of the judge to the bill of exceptions stated that “ when the agreed facts in writing are attached,” it would' contain all the evidence material. There was no attached statement.

<p>Timber at tbe port of Darien, being shipped and awaiting shipment, belonging to, and in the hands of, a subject of Great Britain, resident in Darien, Georgia, a part of the year, for the sole business of exporting timber to England, and under contract of sale to parties in England, on the 1st of April, 1875, and actually exported, most of it before the 1st of July, when the exporter was required to return it for taxes, and every log of it by the 1st of November, and thus segregated from the mass of property in the state on the 1st of April, 1875, and its situs as an export fixed at that time, when, if at all, it was taxable, was not intended to be taxed by the law of Georgia taxing all property ad valorem but expressly excepting all property exempted by the constitution of the United States; and, if so intended, the act would be void, under the prohibition of the second paragraph of the tenth section of the first article of the constitution of the United States, which prescribes that “No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, etc.”</p>

<p>1. Where a plaintiff, holding a judgment against D. and P., two joint defendants, for $1,551.90, in consideration of $500.00, agrees with D., without the knowledge or consent of P., “to release and discharge D. from paying any more on said judgment</p> <p>Held, that such a contract being an absolute release of D., the judgment cannot be enforced against P., the other joint defendant, even though it may have been further agreed between those two parties, that said release was not to affect the collection of said judgment out of P., he not being a party, or consenting thereto.</p> <p>2. The more especially will this be maintained, where it was further agreed that the said $500.00 was not to be “ considered as a credit on the judgment so far as P. is concerned, and when said judgment is collected off of P., first retaining a sufficient amount to pay and satisfy said judgment, including the $500.00 paid by D.. then the $500.00 is to be refunded to D. out of the amount collected off of P.,” the other defendant.</p> <p>3. A judgment obtained in the state of Tennessee against two, as joint defendants, makes against them á joint debt, and is conclusive as to the joint liability to the. plaintiff; in a suit, therefore, in this state, on such judgment, between plaintiff and defendants, parol testimony cannot be introduced to contradict the verity of the record. It must stand, as between them, until reversed or set aside.</p>

<p>A homestead set apart under the provisions of the constitution of 1868, for the family of a tax collector, is liable for his default in paying over to the state taxes collected by him.</p>

<p>Charge o'f Court. Notice. Principal and agent. Practice in the Supreme Court. Before Judge Crawford. Talbot Superior Court. September Term, 1877.</p> <p>Reported in the decision.</p>

<p>New trial. Husband and wife. Fraud. Debtor and creditor. Practice in the Supreme Court. Before Judge Oraweord. Harris Superior Court. April Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Criminal law. Practice in the Superior Court. New trial. Before Judge Tompkins. Chatham Superior Court. November Term, 1876.</p> <p>Reported in the opinion.</p>

Negotiable instruments. Payment. Principal and agent. New trial. Evidence. Before Judge McCutciien. Dade Superior Court. March Term, 1S77. Moe, as administrator of Nicklin, brought complaint on the following note: “$300.00. “ Ciiattanoo&a, July 30, 1867. Sixty days after date we promise to pay to the order of A. F. Dunleavy, agent S. W. N., three hundred dollars, for value received, with interest from date. “ Signed ; P. W. Harris, Thomas Blanchard.

<p>Constitutional law. Municipal corporations. Tax. Before Judge Tompkins. Chatham Superior Court. May Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Gertiortwi. Practice in the Superior Court. Before Judge Tompkins. Chatham Superior Court. February Term, 1877.</p> <p>Reported in the decision.</p>

New trial. Before Judge Pate. Twiggs Superior Court. September Term, 1877. Upon the second trial of this ease, the jury again found in favor of the security, N elson. The court, on motion of plaintiff, ordered a new trial, and Nelson excepted. See same case in 57 Ga. Rep., 133. Any further report is unnecessary.

<p>Creditors furnishing money to saw-mills have no lien thereon under the acts of 1868 and 1878, and the Code, section 19w5; and the judgment foreclosing the same should have been vacated and set aside on proper motion made therefor.</p>

<p>That intestate sold certain personalty of complainant, agreeing to invest the proceeds in a home for her, but, instead, bought property in his own name, and his administrator has disposed thereof, rendering-identification impossible, gives no ground for equitable relief. Remedy at law complete.</p>

Practice in the Supreme Court. Charge of Court. New trial. Estoppel. Before Judge Crawford. Talbot Superior Court. March Term, 1877. Brunner & Co. brought complaint against Reedy on a note dated February 6, 1871, payable three days after date to Thomas Reedy or bearer,, for $102.21. The defendant pleaded the general issue — failure and want of consideration. The material facts developed by the testimony are stated in the opinion. The jury found for the plaintiffs.

<p>Criminal law. Contracts. Municipal corporations. Before Judge Harris. Glynn Superior Court. November Adjourned Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Where it appears from the clerk’s entry on the bill of exceptions, that it was filed more than fifteen days after it had been certified, this court will not hear aliunde evidence contradicting or explaining the entry.</p>

<p>1. Judgment being rendered in attachment, against the security on replevy bond, jointly with the principal, and the attachment being void by reason of a fatal defect in the affidavit apparent on the face thereof, the judgment will be arrested as to the security, un motion made at the same term of the court, notwithstanding a previous motion to dismiss the attachment for the same cause, had been made by the principal, and denied.</p> <p>2. The ground of attachment must be sworn to positively, and the language used must be such as not to leave it doubtful whether this requisition has been complied with. Affidavit by the creditor’s attorney, that, “.to tbe best of bis knowledge and belief,” tbe indebtedness exists, and that the debtor resides out of this state, is ambiguous, and therefore insufficient to warrant an attachment grounded on non-residence.</p>

<p>Evidence. Homestead. Before Judge Tompkins. Bulloch Superior Court. March Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Ejectment. Practice in the Superior Court. Process. Parties. Practice in the Supreme Court-. Before Judge Kiddoo. Terrell Superior Court. November Term, 1877.</p> <p>Reported in the decision. '</p>

<p>Under the evidence, and the law applicable thereto as heretofore expounded by this court in this same case, the grant of anew trial, on even a third verdict for the plaintiff, followed legally and logically. It would have been an improper exercise of discretion not to grant it. In this state, the employee of a railroad company who receives a physical injury, partly by his own fault, and partly by the fault of other servants or employees of the company, cannot recover.</p>

New trial. Actions. Abatement. Before Judge Tompkins. Chatham Superior Court. May Term, 1816. To the report contained in the opinion it is only necessary to add the following: Thompson, an employee, brought case against the Central Railroad for an alleged injury resulting from the negligence of other employees of the road.

<p>Where a motion for new trial, by order, was to be heard at an adjourned term of court, and the judge was providentially prevented from then hearing it, he had no authority to dispose of the motion in the succeeding vacation.</p>

Partnership. Evidence. New trial. Newly discovered evidence. Before Judge Hall. Spalding Superior Court. August Term, 1877. Stephenson brought complaint against Maddox on an account for $557.51, balance due him from proceeds of crops raised during the year 1875 by plaintiff and defendant as partners, and sold by the latter. The defendant pleaded the general issue and set-off.

<p>Jurors. Practice in the Superior Court. Criminal law. Before Judge Bartlett. Wilkinson Superior Court. October Term, 1877.</p> <p>Reported in the decision.</p>

<p>Ejectment. Estates. Before Judge Underwood. Haralson Superior Court. September Term, 1877.</p> <p>Eeported in the decision.</p>

<p>1. Where a case is tried on three issuable pleas, to-wit: not indebted, non est factum, and that the plaintiff was dead when the action was commenced, a verdict in favor of the plaintiff for the amount of the note declared upon, is a finding against the defendant on all the pleas.</p> <p>2. A suit in the name of Neal Carter may be maintained, though the full name be John Neal Carter, and though the person be usually called John, and only occasionally called Neal. The misnomer is amendable instanter. That the father of John Neal Carter was named Neal Carter, and was dead when the suit was brought, will not make the action void, or cause it<to abate, if the son and not the father, was the real party from the beginning.</p> <p>3. Where the note declared upon has been lost pending the action, a true copy annexed to the declaration being still in existence and produced at the trial, the trial may proceed without establishing a copy in lieu of the lost original, though a plea of non est factum be filed. The genuineness of the original, and the correctness of the preserved copy, may be established by parol evidence.</p>

<p>Municipal corporations. Tax. Banks. Before Judge Grice. Bibb Superior Court. October adjourned Term, 1877.</p> <p>Reported in the opinion.</p>

<p>1. The act of 1858, providing the manner in which jurors shall be selected in the county of Chatham, for the trial of criminal cases, where the regular panel has been exhausted, is repugnant to the provisions of the constitution of 1868 and the act of 1869, passed in pursuance thereof, regulating the selection of upright and intelligent persons to serve on juries.</p> <p>2. Where the law is substantially charged, an inaccuracy of expression which cannot injure the defendant, is no ground for new trial.</p>

<p>Criminal law. Oertiorari. Pleadings. Before Judge Rice. Oconee Superior Court. July Term, 1877.</p> <p>Report unnecessary.</p>

<p>Criminal law. Before Judge Grice. Bibb Superior Court. October Term, 1877.</p> <p>Lundy was convicted of simple larceny. He moved for a new trial, which was refused, and he excepted. For the other facts see the opinion.</p>

Practice in the Supreme Court. Jurors. Evidence. Criminal law. Before Judge Clark. City Court of Atlanta. June term, 1877. To the report contained in the decision, it is only necessary to add, that defendant offered to prove by certain of the grand jurors who found the bill of indictment, that no lawful oath was administered to the witnesses on whose evidence the finding was based. The court rejected this evidence.

<p>Where litigation between the vendor and the purchaser of land, the one holding notes for the purchase-money and the other a bond for titles, involves alleged misdescription of boundary, alleged damages for interference with the purchaser’s possession and use up to the true boundary line, and the ascertainment of the real balance due for the purchase-money, an injunction upon a pending action at law on the purchase-money notes may be granted without any abuse of discretion, even though the answer may offer to yield the disputed question of boundary, and though the alleged insolvency of the vendor be denied. The case is a weak one for injunction, but not so weak as to render it obligatory upon a reviewing court to interfere.</p>

<p>1. The evidence being conflicting, but enough to support the verdict, and the presiding judge being satisfied therewith, this court will not interfere on the ground that the verdict is contrary to law and evidence.</p> <p>2. On a suit for the recovery of damages for the sale of a fertilizer recommended by the vendor as good, but proven to the satisfaction of the jury, to be wholly worthless, it is not error to charge the jury that the vendees, if the article was found by them to be valueless, “should be paid for the hauling,” though there was no allegation in the declaration about the hauling — no objection having been made to the introduction of evidence of expense of hauling, and the allegation of general damage for breach of the contract being sufficient to cover the damages found.</p>

<p>Practice in the Superior Court. Equity. Parties. New trial. Before Judge Rice. Jackson Superior Court. August Term, 1877.</p> <p>Reported in the decision.</p>

Equity. Injunction and receiver. Trusts. Before Judge Hillyer. Fulton Superior Court. October Term, 1877. The bill in this case was filed by Buice, the owner of a steam saw-mill, against Malone, trustee, and the cestui que trust, who was made a party by guardian ad litem. The scope of the pleadings and evidence appears sufficiently from the head note.

<p>Legacies. Verdict. Parties. New trial. Before Judge LIall. Pike Superior Court. April Adjourned Term, 1877.</p> <p>Reported in the opinion.</p>

<p>The "bond of a collector of the internal revenue of the United States is a bond for the indemnity of the government alone, and not for the protection of private persons who may be injured by the torts of the principal or his deputies.</p>

<p>1. When an executor is made a party defendant to a pending action, he may be ruled to trial at once, unless cause be shown for a continuance. The absence of counsel without leave, and unexplained, is not such cause. Nor is the absence of certain books of account in the plaintiff's possession, when they would not be available as evidence if present, their relevancy depending upon preliminary evidence to vary and contradict the written contract constituting the cause of action, and said preliminary evidence being in parol, and therefore inadmissible.</p> <p>2. An absolute, unconditional promissory note,'cannot be changed into a conditional obligation by parol, in the absence of fraud, accident or mistake. (R.)</p>

<p>1. Where a party to a bill receives money held for distribution under a consent decree, and the same decree to which he consents provides that the original bill be held up to try issues touching other property not distributed, he is estopped from demurring to the original bill for want of equity in it to try those issues, such bill being necessary to hold in court the cross-bills of the. parties which make those issues.</p> <p>2. Where a cross-bill showed on its face that the matters set up therein had been adjudicated in a claim case regularly tried by jury, with motion for a new trial refused, and the refusal affirmed by this court by dismissal of the writ of error, it should have been dismissed on demurrer.</p> <p>3. Where another cross-bill showed that the complainants therein had purchased from, and held under, the claimants in said claim case, and must have bought after judgment in said claim case or pending the claim, such cross-bill should also have been dismissed on demurrer.</p>

Criminal Law. Municipal corporations. Before Judge Rice. Gwinnett Superior Court. September ^ Adjourned Term, 1877. Crawford was carried before the Board of Commissioners of Lawrenceville for an alleged violation of the following ordinance: “ Ordinance No. 4.

Municipal corporations. Torts. Tax. Pleadings. Before Judge IIillyer. Fulton Superior Court.

Fraud. Corporations. Claim. Damages. New trial. Before Judge PLillyer. Cobb Superior Court. March Adjourned Term, 1877.

<p>Homestead. Before Judge Bice. Banks Superior Court. October Term, 1877.</p> <p>Beported in the decision.</p>

Bankrupt. Corporations. Directors. Pleadings. Before Judge IIillyer. Fulton Superior Court. October Term, 1877.

<p>Proper diligence having heen shown by the agreed statement of facts on the part of the railroad company, the presumption of. law against the road was rebutted, and the plaintiff was not entitled to recover.</p>

<p>Criminal law. Forgery. Husband and wife. Before Judge Hillyer. Fulton Superior Court. October Term, 1877.</p> <p>Reported in the decision.</p>

Inn-keepers. Negligence. Charge of court. New trial. Before Judge Clark. City Court of Atlanta. December Term, 1877. Bohler brought case against Owens as the proprietor of the National Hotel, in the city of Atlanta, for the value of a watch and pistol, alleged to have been stolen from the former, through the negligence of the latter. The defendant pleaded the general issue.

Injunction. Attorney and client. Judgments. Before Judge McCutohen. Bartow County. At Chambers. Mrs. Moore filed her bill to enjoin a judgment from proceeding against her separate property. The injunction was granted in the following decision by the chancellor: “Mr. Akin, the counsel for the defendant, expressly waived any question as to the jurisdiction of Bartow superior court.

Wills. Descent. Estates. Parties. Evidence. Practice in the Superior Court. Charge of Court. Before Judge Tompkins. Chatham Superior Court. May Term, 1877. The executors of Mary Telfair, deceased, propounded a will, which was caveated by two sets of heirs at law claiming separately — the “ Wetters ” and the “Joneses.” The case was carried from the court of ordinary to the superior court by appeal.

<p>In a will case, where the caveators have all joined in a bill of exceptions to this court, each should embody in it, or under it, all the assignments of error he expects to insist on here, and where one or more of such caveators afterward sues out another bill of exceptions and writ of error in the same case, and from the same judgment, such second writ will he dismissed.</p>

Husband and wife. Alimony. Estoppel. Before Judge Tompkins. Chatham Superior Court. October Term, 1877. Mrs. Dillon filed a bill against her alleged husband for permanent alimony, under §1747 of the Code. Pending the case, a motion for temporary alimony and counsel fees was submitted.

Criminal law. New trial. Practice in the Superior Court. Evidence. Before Judge Rice. Gwinnett Superior Court. September Term, 1877. Brown was placed on trial for the offense of shooting at Harrison Bradford. He pleaded not guilty. The evidence made out a very clear case of unprovoked shooting, the only palliating circumstance being that he was drunk.

<p>Principal and agent. Contracts. Pleadings^ New trial. Before Judge Bartlett. Jasper Superior Court. April Adjourned Term, 1877.</p> <p>Reported in tbe opinion..</p>

<p>Attorney and client; Lien. Before Judge Pottle. Hancock Superior Court. October Adjourned Term, 1877.</p> <p>Reported in the decision.</p>

<p>Where an appeal from a justice court to the superior court is tried, and results in favor of the appellant, the legal costs paid by him on entering the apreal are a part of the costs for -which judgment is to be rendered against the adverse party. The superior court has no power to order the justice of the peace, by rule or otherwise, to refund. In entering an appeal, the legal costs have to be paid, not merely deposited.</p>

Municipal corporations. Officers. Contracts. Equity. Injunction and receiver. Before Judge Grice. Bibb County. At Chambers.

<p>1. A chancellor has no power, in vacation, to decree specific performance. '</p> <p>2. An injunction to restrain one from refusing perf ormance is, in effect, a decree for specific performances.</p> <p>3. Directions to chancellor for moulding order to protect parties till final hearing.</p>

<p>Evidence. Partition. Title. Privies. New trial. Before Judge Rice. Jackson Superior Court. August Term, 1877.</p> <p>Report unnecessary.</p>

<p>1. A judgment of the superior court on an order to the sheriff to deposit money in a bank, excepted to and brought to this court, and writ of error dismissed for irregularity, is affirmed, and becomes res adjudicata, and cannot again be excepted to.</p> <p>2. Where the answer of the sheriff does not state the amount of money he has paid, and where the answer refers to judgments of the court in the record, and is not verified by the record referred to, this court will not interfere with the attachment of the sheriff by the superior court for contempt.</p>

<p>Criminal law. Evidence. Charge of Court. Witness. Before Judge Bartlett. Baldwin Superior Court. August Term, 1877.</p> <p>Reported in the opinions.</p>

Criminal law. Continuance. Evidence. lies gestee. Jury. New trial. Before Judge Pottle. Hancock Superior Court. April Adjourned Term, 1877. This case arose upon substantially the same facts as that of Griggs vs. The State, 59 Ga. Rep., 738. Any further report beyond a reference to that is deemed unnecessary.

<p>Tax. Levy and sale. Injunction and receiver. Before Judge Buchanan. Coweta County. At Chambers.</p> <p>Reported in the opinion.</p>

<p>Where the defendant to an action on contract has filed his plea, and, at the trial term, it hecomse necessary to amend, his agent or attorney at law may make the necessary affidavit to the proposed amendment if he then resides out of the county.</p>

<p>Criminal law. Charge of court. .New trial. Before Judge Tompkins. Chatham. Superior Court. May Term, 1877.</p> <p>Reported in the opinion.</p>

<p>G&rtiorari. Nuisance. Jurisdiction. Before Judge Tompkins. At Chambers. Chatham County.</p> <p>Campbell filed his petition to abate a nuisance alleged to be caused by Wetter. The body of the declaration was as follows:</p> <p>“ The said Augustus P. Wetter has erected a certain dam, which has caused a backing of the waters of said Deep Creek in and upon the lands of your petitioner, causing said lands to be overflowed to the depth of four or five feet, destroying the growing crops of rice, and preventing further cultivation, tending to the immediate annoyance of the citizens in general, and working Jhurt, damage and .inconvenience to your petitioner.”</p> <p>The proceedings to tfv the question of the existence of the nuisance were had under section 4094 of the Code. At the hearing, defendant moved to dismiss the case on the ground that the allegations did not bring it within §4094, and the justices had no jurisdiction thereof. The motion was overruled.</p> <p>For the other facts of this case see the decision.</p>

<p>Constitutional law. Corporations. Railroads. Tax. Before Judge Peeples. Pulton Superior Court. October Term, 1876.</p> <p>Reported in the opinion.</p>

<p>Principal and surety. Before Judge Hillyer. Fulton Superior Court. October Term, 1877.</p> <p>Reported in the opinion.</p>

Principal and agent. Railroads. Before Judge Harris. Coffee Superior Court. April Term, 1877. John D. Luke, the plaintiff, having been declared alunatic, Henry B. Peeples, his guardian, was made a party in his stead. Reported in the decision.

Criminal law. Evidence. Principals. Charge of Court. Sentence. Practice in the Superior Court. 'Before Judge Underwood. Polk Superior Court. Held: in and upon one Samuel Talbot, in the peace of God and said state then and there being, did then and there, unlawfully, wilfully, feloniously and of malice aforethought, make an assault, and the said rocks and pieces of brick did then and there throw and hurl at and against him, the said Samuel Talbot, with intent him, the said…

<p>Promissory notes. Notice. Contracts. Before Judge Hall. Spalding Superior Court. August Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Practice in the Supreme Court. January Term, 1878.</p> <p>Reported in the decision.</p>

Continuance. Bond. Evidence. Contracts. Before Judge Rice. Clarke Superior Court. August Term, 1877.

Tax. Illegality. Executions. Principal and. surety. Before Judge Crisp. Lee Superior Court. November Term, 1877. Tbe ordinary of Lee county issued an execution against the administratrix of a former tax collector, and his sureties, for an alleged default. The administratrix filed an affidavit of illegality. This was demurred to, and all the grounds dismissed but one. Both parties excepted. Eor the other facts see the opinion.

<p>A motion to set aside a judgment is barred after the lapse of seven years from its rendition.</p>

<p>Garnishment. Foreign corporations. Railroads. Before Judge Crawford. Muscogee Superior Court. May Term, 18Y7.</p> <p>Report unnecessary.</p>

<p>That the agent of a railroad company obstructed an officer in levying an attachment upon goods loaded upon one of the trains of the company, and that he removed the goods out of the state by running out the train, will not furnish a cause of action against the company, at the instance of the plaintiff in attachment.</p> <p>Jackson, Judge, concurred duWtante.</p>

<p>Practice in the Superior Court. Judgments. Bonds. Sheriffs. Before Judge Crawford. Quitman Superior Court. November Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Bills of exception to decisions granting or refusing injunctions must be certified -within twenty days thereafter. No exception is made where the judge fails to sign the certificate without fault of the excepting party, as in other writs of error.</p>

Administrators and executors. Commissions. Interest. Before Judge Buchanan. Coweta Superior Court. September Term, 1877. This case arose upon a rule by Arnold against Doster as administrator of Hilton, requiring him to show cause why he should not pay over to movant the moneys in his hands in accordance with a decree rendered on a bill filed by said administrator against the persons interested in the estate of intestate, to marshal the assets.

<p>1. Where the evidence is conflicting, and the verdict is approved by the presiding.judge, this court will not interfere — there being evidence enough to sustain the verdict.</p> <p>2. Where the presiding judge certifies that his attention was not called to verbal requests to charge, made by counsel during the argument, at the time he charged the jury, but such requests had escaped his memory and he was not reminded of them, a new trial will not be granted on account of his omission so to charge. It was the duty of counsel to remind the court of the omission, or (which is the better plan) to have put the requests in writing.</p> <p>3. Where the law of the case is given substantially to the jury — including the substance of that portion of the written requests which was legal —a new trial will not be granted because the requests as a whole were not given in charge exactly as written.</p>

<p>A father cannot recover for tlie homicide of his minor daughter, hut may recover for the loss of her services to the time of her majority.</p>

<p>Practice iu the Supi’eme Oourt. New trial. Before Judge Rjddoo. Terrell Superior Oourt. November Term, 1875.</p> <p>Sufficiently reported in the opinion.</p>

<p>Before an administrator is entitled to have an appeal from a decision of the ordinary on his annual return, made ex pcvrte, entered and sent up to the superior court, he must pay the costs and give security for future costs; in such a case, an appeal m forma pauperis will not he allowed.</p>

<p>1. Where a request to charge was based upon no evidence, it was properly refused.</p> <p>2. There is sufficient testimony to support the verdict.</p>

Interrogatories. Practice in the Superior Court. Charge of Court. Witness. Damages. New Trial. Before Judge IIillyer. Fulton Superior Court. April Term, 1877.

<p>1. The rule against the sheriff, founded on a mortgage fi. fa. against land, was properly made absolute for the whole amount of principal, interest and cost, and not for the value of the land, the answer of the sheriff, untraversed, not alleging that the land was worth less than said principal, interest and cost.</p> <p>2. Where the superior court certified that by inadvertence, execution was issued against the sheriff from the rule absolute, and also an attachment against him, this court will not interfere, though section 3956 of the Oode authorizes but one of these remedies at a time, because the court below will, if it has not already done so, correct the error for itself, and see to it that the sheriff, is not harmed by the inadvertent order.</p>

<p>Practice in the Superior Court. New trial. Before Judge ITill. Bibb Superior Court. April Adjourned Term, 1877.</p> <p>Reported in the decision.</p>

Ejectment. Bond for titles. Yendor and purchaser. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1876. Winn brought complaint against Hill for a tract of land situated in Oglethorpe county.

<p>A. person who declares that he was upon a railroad track by its consent and was injured by the running of the cars caused by unusual loading of the same — the timbers projecting seven feet beyond the track and he standing that distance from it at night, supposing himself safe at such a distance from the rail — several other trains properly loaded having passed without injury to him — has the right to go to the jury — the question of negligence being one peculiarly for the jury, the presumption in all cases being against the company; and a declaration alleging facts to the effect above stated should not have been dismissed on demurrer.</p>

<p>An order dismissing certain parts of a bill in equity is not such a final disposition of the cause as will entitle complainant to writ of error. The proper remedy is by exception pendente lite.</p>

Injunction and receiver. Before Judge Gibson. Richmond County. At Chambers. Gray filed his bill against Gage, Barrett, Ham, Gillette, and others, as directors, and the Augusta Ice Manufacturing Company, making, in brief, the following case: In 1876, Gray and his associates were incorporated by petition and order in Richmond superior court, under the name of the Augusta Ice Manufacturing Company, and engaged in manufacturing and selling ice.

Negotiable instruments. Indorsers. Protest. Before Judge Hillyer. Fulton Superior Court. April Term, 1877. The Georgia National Bank brought assumpsit against Crittenden & Company, makers, and Allen & Company, indorsers, on a note dated January 11, 1872, payable thirty days after date, to the order of Allen & Company, at the Georgia National Bank, for $575.31. The indorsers were served and a return of non est inventus made as to the makers.

Tax. Laws. Illegality. Before Judge Wright. Decatur Superior Court. November Term, 1877. The grand jury of Decatur county recommended a county tax of one hundred per cent, on the state tax for the year 1873. The county commissioners assessed a tax of one hundred and ninety-nine and one-third per cent, of the state tax. The objects of the tax were specified, and more than 99-J per cent, was authorized by local enactments, and made up of items which required no recommendation.

<p>Judgments. Practice in the Superior Court. Service. Before Judge Crisp. Webster Superior Court. September Term, 1877.</p> <p>Deported in the decision.</p>

Injunction and receiver. Discovery. Judgments. Before Judge Crawford. Chattahoochee County. At Chambers.

Criminal law. Before Judge Crisp. Lee Superior Court. November Term, 1877. Bryant was indicted for burglary in the night-time, committed on a gear-house “within the curtilage and protection of” a dwelling-house, and was found guilty. He moved for a new trial, which was refused, and he excepted. For the other facts, see the opinion.

Practice in the Superior Court. Practice in the Supreme Court. New trial. Before Judge Wright. DoughertySuperior Court. October Term, 1877. The following, taken in connection with the decision, sufficently reports this case: Defendant moved for a new trial on the following among other grounds: 1. Because the verdict was contrary to law and evidence. 2.

<p>In 1865, aftér June 1st, a partner retired, selling out to his co-partner his interest (one-half) in the stock, at cost or invoice prices. The retired partner died; and in October, 1866, administration was granted upon his estate. A suit was commenced against the administrator, in August, 1878, by the former partner of the intestate upon a certain award, to which suit the administrator pleaded, in January, 1874, among other things, that at the time of the dissolution, the stock was worth over fifteen hundred dollars, and that he, the administrator, claimed to be entitled to one-half thereof, with interest. He neither offered expressly to set off the claim, nor prayed judgment therefor. The action and the plea remained pending until February, 1877, when the action was voluntarily dismissed by the plaintiff therein. The administrator, in July thereafter, filed the present bill to recover for his intestate’s interest in the stock. The’bill was barred by the statute of limitations, and a demurrer containing that ground, among others, was properly sustained.</p>

<p>Judgments. Lien. Before Judge Wright. Mitchell Superior Court. November Term, 1877.</p> <p>Reported in the opinion.</p>

<p>After return of verdict, but before publication, it is too late for claimant to withdraw his claim. This should be done before the jury leave their box to make up their verdict.</p>

Criminal law. Larceny. Jurors. Attorney and client. Practice in the Superior Court. Evidence. Before Judge Grice. Bibb Superior Court. October Term, 1877. An indictment was found against Lundy and Williams, charging them with simple larceny in taking and carrying away one red and white yearling heifer cow, marked with smooth cross in • both ears, of the value of $15.00, the property of Edmund Gordon. Williams was placed on trial; and pleaded not guilty.

<p>Under the act of congress of 1875, a cause in equity, brought by a complainant who is a citizen of Virginia, against defendants, all of whom reside in Georgia, except one who was a member of the Georgia firm but now lives in New York, will be removed from the superior court of Georgia to the circuit court of the United States for the southern district of Georgia, on petition and affidavit in due form, although the defendants may set up certain equities among themselves by cross bill or other pleadings, the application for removal having been made at the first term of the superior court to which the bill was returnable.</p>

<p>1. An exemption in bankruptcy, made under the constitution of 1868, is subject to a judgment founded on a debt contracted prior to tbe adoption of such, constitution. The proceedings in bankruptcy do not affect the creditor, he not having proved his debt or otherwise submitted his claim to the bankrupt court.</p> <p>2. Where, by agreement of counsel, the judge passed on a claim case without the intervention of a jury, it was too late to withdraw the claim after he had pronounced the decision.</p>

Statute of limitations. Principal and security. Contracts. Before Judge Rioe. Eranklin Superior Court. October Term, 1877. On March 16, 1876, Langston, as administrator of Bag-well, brought complaint against Aderhold, upon the following note: “ Oarnesville, October 18, 1865. “ Twelve months after date I promise to pay J. E. Langston, administrator of J. J. M. Bagwell, or bearer, thirteen hundred and twenty-three dollars and forty cents, value received.

<p>The ofíense of fornication, as defined in the Code of this state, is not included in the crime of rape, and on a verdict of fornication found upon an indictment for rape, the judgment will he arrested.</p>

<p>That defendant signed a written agreement, without reading it, and it did not contain the contract as in fact made, is no ground for the introduction of parol evidence to vary its..terms, etc. It is not the duty of courts to relieve parties from the results of their gross negligence.</p>

Judgments. Levy and sale. Lien. Bond for titles. Yendor and purchaser. Before Judge Hall. Pike Superior Court. April Adjourned Term, 1877. An execution in favor of Neal against one Parker was levied upon certain land as the property of the defendant, to which a claim was interposed by Murphey & Co. Upon the trial of the issue thus formed, the state of facts appeared which is set forth in the head-note.

<p>Mandamus. Practice in the Supreme Court. January-Term, 1818.</p> <p>Reported in the opinion.</p>

<p>Equity. Contracts. Before Judge Hillyeb. Fulton Superior Court. October Term, 1877.</p> <p>DeGive filed his bill against Healey &-Berry, alleging, in brief, as follows:</p> <p>In July, 1866, complainant sold to the “ Masonic Hall Company ” a lot in the city of Atlanta, and took a mortgage for the purchase money, which was duly recorded. On July 31st, 1867, Meador & Tumlin filed a claim of mechanic’s lien on the lot as the property of the company, in September commenced suit, and in April, 1868, obtained a common law and mechanics’ lien judgment for $2,690.40, with interest. In November, 1867, defendants commenced their action in the usual form to foreclose a mechanic’s lien against the company, and recovered judgment in October, 1868. Execution issued and was levied on the lot; complainant claimed it; thus arose a contest of liens between complainant and defendants. Complainant believed that Meador & Tumlin had no valid and legal lien which they could enforce against the property or the proceeds, which opinion was produced by the statements of John L. Hopkins, Esq., attorney of defendants, that Meador & Tumlin were seeking to foreclose their lien in a summary manner, by affidavit, instead of properly by suit; that this was not legal, and the lien therefore not of binding force. Acting on this opinion and these statements, and also on the belief that the defendants had a good and valid lien, complainant entered into two agreements, the one to complete the other, and both for the purpose of allowing the property to be sold, and the parties to amicably divide the proceeds. The agreements were as follows:</p> <p>(1-)</p> <p>“ In the matter of the controversy in reference to our claims against the Masonic Hall Company, we agree as follows :</p> <p>1. Laurent DeGive withdraws his claim and offers no further obstruction to the sale of the property.</p> <p>2. The proceeds of the sale are to be divided pro rata between us; that is, we agree to take each, as between us, the same per centum on our debts. The value of DeGive’s claim is to be ascertained in greenbacks on the day of sale. This August 31, 1869.</p> <p>Jno. L. Hopkins,</p> <p>Attorney for Healey & Berry & Co.</p> <p>D. F. Hammond,</p> <p>Attorney for DeGive.”</p> <p>(2.)</p> <p>(After a statement of account showing the respective shares, after payment of costs, to be $14,269.71, and $5,-705.81.)</p> <p>“ Whereas by the above account, made the 5th day of October, 1869, the sum of five thousand seven hundred and five dollars and eighty-one cents is the share of Healey & Berry at pro rata in the net proceeds of the sale of Masonic Hall property, said net proceeds amounting to $19,975.52.</p> <p>“ It is agreed between said Healey & Berry of the first part, and Laurent DeGive as principal, and Peter Huge as his security, of the second part, that said L. DeGive will pay to said Healey & Berry on or before the 5th day of April, 1870, one-half of said sum of $5,705.81 in United States currency, with the interest at-per cent., on or before the 5th day of April, 1871, the second half of said sum of $5,705.81, in United States currency, with the interest at-per cent., the whole being subject to the following restriction: that all mechanics’ or other claims against the Masonic Hall property for liens or debts existing against the Masonic Hall Company before the 5th day of October, 1869, and especially the claim of Meador & Tumlin, if found to be a valid lien by the courts, will be deducted from the said net proceeds of sale of $19,975.52, and .that what will have to be paid will be supported at pro rata by said parties, and that said DeGive will retain out of the last payment to be made to Iiealy & Berry a sum equal to their pro rata of said claims, until they are decided by the courts; moreover, the lawyer of said Healey & Berry will defend to such claims with the lawyer of the said DeGive at their own costs, each party paying his own attorney. It is further agreed that said DeGive will deliver as collateral security to said Healey & Berry, two notes signed by Peter Huge, of Atlanta, of $2,000.00 each, guaranteed by mortgage on what is known as Peter Huge’s block, on Whitehall street, Atlanta, Ga., one due the 11th of March, 1870, and the other the 11th of March, 1871 — said notes, when paid, to be credited to said L. DeGive on what may be due by him to said Healey & Berry on account of this contract.</p> <p>Signed, sealed and delivered this-day of October, 1869, in duplicate, in the city of Atlanta.</p> <p>Healey & Berry. [Seal.]</p> <p>Laurent DeGive, [Seal.]</p> <p>P. Huge. [Seal.]”</p> <p>Both the opinion of the law and the representation of facts on which the agreements were made were mistakes; further, defendants were not mechanics, and their lien as such was not good, and therefore the agreements were based on a mistake of law as to it. Defendants have sued for a balance claimed to be due under this contract. The prayer of the bill is as follows : (1.) For injunction to restrain defendants’ suit. (2.) For cancellation of the agreements. (3.) For the recovery of what complainant has paid defendants in excess of what'was right and proper. (4.) For general relief and subpcenas.</p> <p>On demurrer the bill was dismissed, and complainant excepted.</p>

Injunction and receiver. Equity. Debtor and creditor. Partnership. Mortgage. Before Judge Crawford. Talbot Superior Court. March Term, 1878.

<p>Equity. Trusts. Administrators and executors. Evidences. Yerdict. New trial. Before Judge Tompkins. Chatham Superior Court. May Term, 1877.</p> <p>Mi’s. Emma A. Harris and her four children, brought ejectment against Knapp for a lot of land in the city of Savannah, containing a count for mesne profits.</p> <p>The defendant pleaded the general issue, and the four-year statute of limitations to the demand for mesne profits. The plaintiff introduced the following evidence, viz:</p> <p>An agreement between counsel to the following facts, made to be used as evidence in the cause for the benefit of both parties, viz:</p> <p>Dr. Stephen N. Harris died in September, 1851, owning and residing on the lot sued for in this action, and intestate. Mrs. Harris is the widow of the said Stephen N. Harris, and the other four plaintiffs are his children. Their ages are as follows: Mary Louisa Harris, born May 6th, 1817; Emma A. Gallagher, born October 1st, 1818; Stephen R. Harris, born February 11th, 1850; Evelyn E. Barnard, born November 30th, 1852.</p> <p>Letters of administration were granted to Mrs. Harris, the widow, upon the estate of the said Stephen N. Harris, by the ordinary of Chatham county, in November, 1851. The administratrix was married to Columbus S. Harris on November 10th, 1858. Letters of administration d& bonis non upon the estate were granted by the same ordinary to the said Columbus S. Harris on March 7th, 1859. The administrator de bonis non was a resident of Liberty county at the time of certain proceedings in chancery which resulted in a sale of the lot sued for in this action. Columbus S. Harris died intestate October 6th, 1874, leaving his widow and four children, of whom three are still living.</p> <p>The defendant offered the following evidence, viz:</p> <p>1. The record of certain chancery proceedings in the suj)erior court of Chatham county at its January term, 1856, consisting of a bill filed by the above named children of Hr. Stephen N. Harris, by a p'ochein- ami, against Emma A. Harris, the then administratrix of his estate, with her answer, and a decree thereon authorizing her to raise a certain sum of money upon a mortgage of the lot sued for to pay off an unpaid residue of the original purchase money of said lot, which had not been fully paid by the said Stephen N. Harris at the time of his death.</p> <p>2. The record of certain chancery proceedings before the judge of the superior court of Liberty county at chambers, in the year 1860, consisting of a bill filed by the above named Emma A. Harris and the other heirs-at-law of the said Stephen N. Harris, by their next friend, against Columbus S. Harris, then administrator de bonis non of the estate, with his answer, and the decree thereon authorizing either public or private sale of the said lot by the said administrator de bonis non, for the purpose of raising money to pay off the mortgage made under the aforesaid decree of Chat-ham superior court.</p> <p>Both these records were objected to — the latter on the ground that the judge of the superior court of Liberty county had no jurisdiction at chambers to grant such decree. The objection to the former was overruled, and the evidence admitted. The objection to the latter was sustained, and the evidence rejected.</p> <p>It is not necessary to set out any part of either of these records — not the former, because its only object was to show the authority for the mortgage, the payment of which was provided for by tbe second decree — nor the latter, because the objection to it did not involve any question of the regularity of the proceedings, but only the authority of the judge to grant such a decree at chambers.</p> <p>3. The mortgage from Emma A. Harris, as administratrix, to John Stoddard, dated February 8th, 1856, which, was authorized by the aforesaid decree of Chatham superior court, with a transfer indorsed from Stoddard to Emanuel, Heidt, dated March 26th, 1860, and an entry of satisfaction made by Heidt, and dated May 12th, 1860.</p> <p>1. A conveyance in fee of the property in dispute from Columbus S. Harris, as administrator de bonis non, to the said Emanuel Heidt, dated May 1st, 1860, reciting that it was made under the authority of the aforesaid decree of the judge of Liberty superior court, at chambers.</p> <p>5. A conveyance in fee of the property in dispute from the said Emanuel Heidt to Noah B. Knapp, the defendant, dated May 6, 1860.</p> <p>The defendant here closed his case, and Mrs. Harris was sworn in rebuttal. Upon her offering to make certain statements in regard to the chancery proceedings before the judge of Liberty superior court, objection was made on the ground that the record of those procedings had not been admitted in evidence, and was not before the jury. The objection was sustained; but she was allowed to say that she did not know of the appointment of Columbus S. Harris to be administrator de bonis non, or of the sale by him.</p> <p>It was admitted by the defendant that the mortgage from Stephen N. Harris to Gallie, the payment of which was provided for by the decree of Chatham superior court, had accordingly been paid, and that a demand for the property had been made upon the defendant before the action was commenced.</p> <p>The court instructed the jury, among other things, that if they should find Mrs. Harris, as the widow of Columbus S. Harris, entitled to dower in any part of said property, they might so say in their verdict, and also express the extent and value of said dower interest.</p> <p>The jury rendered the following verdict, viz :</p> <p>“We, the jury, find for the plaintiffs, viz: Mary Louisa Harris, Emma Adelaide Gallagher, (formerly Harris,) Stephen R. Harris, and Evelyn E. Barnard, (formerly Harris,) each one-fifth of the undivided land known as number ten, Jasper Ward, on the northeast corner of Whitaker and Harris streets, in the city of Savannah; and for the defendant, Noah B. Knapp, one-fifth of the same property, subject to widow’s dower for Emma Adelaide Harris, being one-third of one-fifth life interest.</p> <p>“We further find as follows: For Emma Adelaide Harris, one hundred and sixty-five dollars and fifty-nine cents; for Mary Louisa Harris, eight hundred and eighty-eight dollars and twenty-three cents; for Emma Adelaide Gallagher, (formerly Harris,) eight hundred and eighty-eight dollars and twenty-three cents; for Stephen R. Harris, eight hundred and eighty-eight dollars and twenty-three cents; for Evelyn E. Barnard, (formerly Harris,) eight hundred and eighty-eight dollars and twenty-three cents ; being the mesne profits from said property.”</p> <p>The defendant moved for a new trial on the following grounds, to-wit:</p> <p>1. Because the court refused to admit in evidence, when offered by the defendant, an exemplification of the record of a chancery cause before the judge of the superior court of Liberty county, at chambers, between the plaintiffs, as complainants, and Columbus S. Harris, administrator de bonis non of the estate of Stephen N. Harris, as defendant, wherein the said judge granted a decree, on the 29th day of March, A. D. 1860, authorizing the said administrator de bonis non to sell the lot sued for.</p> <p>2. Because the court instructed the jury that if they should find Mrs. Emma A. Harris, as the widow of Columbus S. Harris, entitled to dower in any part of said lot, they might so say in their verdict.</p> <p>3. Because the jury, in their verdict, found the said Mrs. Harris entitled to dower in an undivided part of the said lot sued for.</p> <p>4. Because the jury found for the said Mrs. Harris in their said verdict, a sum of money to be paid to her by the defendant on account of a dower interest in the said lot sued for.</p> <p>5. Because the verdict of the jury was contrary to law.</p> <p>Mrs. Harris having written off the sum of one hundred and sixty-five dollars and fifty-nine cents awarded her by the said verdict, the court overruled the motion, and defendant excepted.</p>

<p>The act of 1869, incorporating the town of Social Circle, and empowering the town authorities to levy a tax on realty alone, is not modified by the general act of 1872, to prescribe the manner of incorporating towns and villages in this state, in so far as to enlarge the taxing power conferred by the charter of 1869; the provision in respect to the enlargement of such powers in towns incorporated before 1872, not being indicated in the title of the act of 1872, and said act to that extent being therefore unconstitutional: nor is the defect in the act of 1872, healed by the amendment of the caption thereof by the act of 1874, inasmuch as the two acts construed together as one, clearly contain two subjects matter, leaving the act still repugnant to the constitutional provision on that subject.</p>

Judgments. Practice in the Superior Court. Liens. Laws. Evidence. Practice in the Supreme Court. Before Judge Hansell. Lowndes Superior Court. May Term, 1877.

<p>1. Discretion was not abused in refusing to make tbe rule absolute, on tbe facts contained in tbe record.</p> <p>2. Where the enforcement of a levy was arrested by affidavit of illegality, on the ground of payment and other grounds, the sheriff taking bond in terms of the statute, and returning the papers to the clerk’s office, and while the illegality was pending, the sheriff’s term of office expired, ho was in no default for not selling the property.</p>

<p>Principal and agent. Contracts. Powers. Before Judge Clark. City Court of Atlanta. December Term, 1877.</p> <p>Eeported in the opinion.</p>

<p>1. When suit was brought against an insurance company for $200.00 ‘ ‘ for two months’ service as agent of the corporation,” and an amendment was allowed which charged that the plaintiff had left a business worth $100.00 per month to enter defendant’s service; that a part of the contract was that the fates of insurance should remain the same during its continuance; that the defendant had, notwithstanding, increased the rates so that it was impossible for the plaintiff to secure any policies; and that plaintiff was damaged to the amount of $200.00, such amendment did not add a count ex delicto.</p> <p>2. Exception to an amendment comes too late at a term subsequent to that at which it was allowed.</p> <p>3. Where an insurance company employed an agent and agreed with him not to change the rates of insurance during his employment, and nevertheless did increase them so that he could secure no policies, in an action by him for breach of contract, the measure of recovery would be what he would have earned had such increase of rates not been made.</p>

<p>Practice in Superior Court. Before Judge Tompkins. Chatham Superior Court. November Term, 1876.</p> <p>Report unnecessary.</p>

<p>1. Under the act of congress of 2nd March, 1875, a corporation created by and located in New York, has the right to remove a case from the superior court of Richmond county, Georgia, to the circuit court of the United States, pending between it and a citizen of Georgia, though the petition allege that-it is a corporation of the state of New York, resident therein and a citizen thereof, and that the other party is a citizen of Georgia at the time of the application for removal, without any distinct allegation that they or either of them were such citizens at the date of the commencement of the action in the state court.</p> <p>2. The final judgment of the superior court on the question of removal is subject to review by this court; and whilst the better practice is for the superior court to render a judgment in distinct terms to remove the case or to decline to do so, yet the approval of the bond of the party seeking to remove the ease, and the indorsement thereof with such approval, will be held a judgment to remove the case so pending between the parties, and be reviewed by this court as a final judgment removing the case pending between such parties.</p>

Contracts. Administrators and executors. Evidence. Before Judge Pottle. Wilkes Superior Court. November Term, 1877. To the report contained in the decision, it is only necessary to add the following: A ji. fa. in favor of Mrs. Hackney, deceased, held by Harrison, her administrator, was levied on certain property of Rhodes. He filed an affidavit of illegality. On the trial the jury found for plaintiff, and defendant excepted.

Criminal law. Indictment. Yerdict. Sentence. Practice in the Superior Court. Judgments. Before Judge Tompkins. Chatham Superior Court. February Term, 1877.

Deeds. Title. Ejectment. Trusts. Before Judge Hill-yer. Fulton Superior Court. October Term, 1877.

Partnership. Witness. Contracts. Before Judge Crisp. Houston Superior Court. November Term, 1877. To the report contained in the decision it is only necessary to add that two of the grounds in the motion for new trial were as follows : (1.) Because the court allowed Dennard (the partner pleading non est factum) to testify as to matters which occurred prior to the death of Parr, (the partner who signed the note), over objections of plaintiff.

<p>Laborer’s lien. Pleadings. Before Judge Tompkins. Chatham Superior Court. November Term, 1876.</p> <p>This case arose upon a contest over a fund in court for distribution between Walls, claiming under an execution based on the foreclosure of a laborer’s lien against Howard, and Rutherford, under a distress warrant. The proceedings on the lien were dismissed for insufficiency in the affidavit.</p> <p>The affidavit stated that Walls was a laborer; that Howard was indebted to him $100.00 for labor performed by him on Howard’s farm, describing it; that the labor was performed from January 1, 1876, to the 14th of the following December, and that the $100.00 now due is the balance on account of such labor; that the work done was plowing, hoeing, attending to the stock, etc.; that he made demand, payment was refused, and that he prosecutes his lieu within one year after the debt became due.</p> <p>To the said dismissal Walls excepted.</p>

<p>The presumption of law being that the company was negligent in running over and hurting Glass, and the question whether such presumption was rebutted or not by the proof, having been fairly submitted to the jury, and there being no sufficient evidence of diligence to rebut the presumption, this court will not control the superior court in the exercise of its discretion in refusing the new trial — no substantial error having been committed by the court on the issue on which the case turned.</p>

<p>Evidence. Pleadings. Jurisdiction. Practice in the Superior Court. Constitutional law. Before Judge Crisp. Lee Superior Court. November Term, 1877.</p> <p>Defendant 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 that the pleas and traverses of the parties were not evidence in the case, but only pleadings.</p> <p>3. Because, on the day after the verdict in favor of the plaintiff, on the question of jurisdiction, there being no other plea, the court gave judgment by default.</p> <p>The motion was overruled, and defendant excepted.</p> <p>The other facts will be found in the decision.</p>

<p>The evidence was sufficient to warrant the jury in finding that the burglary was committed by the prisoners in the night-time as charged.</p>

<p>Actions. Statute of limitations. Before Judge Bartlett. Greene Superior Court. September Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Practice in the Superior Court. «Practice in the Supreme Court. Before Judge Tompkins. McIntosh Superior Court. April Term, 1877.</p> <p>Reported in the decision.</p>

<p>Fraud which must have been discovered if usual and reasonable diligence had been exercised, is not a good reply to the statute of limitations. Where, in 1867, a factor sold cotton for his principal, received the proceeds, and, on payment being demanded, answered falsely and fraudulently that he had paid the money over to a third person, but was not then or thereafter called upon to show a receipt, or exhibit his books, or furnish any evidence of the payment except his bare word, and used no trick or artifice to support his statement or stifle inquiry, an action brought for the money, in 1877, by the principal against the factor, was barred ; and the declaration, though setting forth the fraud, and avering its non-discovery until within two years prior to the institution of the suit, was properly dismissed on demurrer.</p>

<p>1. The claim affidavit was in the name of Thomas G-. Healey, Maxwell R. Berry and Julius A. Hayden, Beri'y making the affidavit; the “Lewis Scofield vs. Healey, Berry & Co., claim, etc.,” and then states: “The claimants being dissatisfied,” etc; the bill of exceptions states the claim as by Healey, Berx-y & Co.; a motion was made to dismiss the writ of error because of the variance between the claim affidavit and the motion for new trial and bill of exceptions: motion for a new trial states the case at the head of the motion as</p> <p>Held, that as neither the motion for new tidal nor the bill of exceptions sets out a partnership, the words Healey, Bex-ry & Co , will be construed to mean the claimants, Thomas G-. Healey, Maxwell R. Berry, and Julius A. Hayden, and that the case will not be dismissed on the ground that a party other than the three claimants set out in the claim affidavit moved for the new trial and brought the case to this court, and the bill of exceptions will be amended so as to set out the names in full.</p> <p>2. The case is controlled on the merits by Scofield vs. QasMU, decided to-day.</p>

<p>Pleadings. Indorsement. Promissory notes. Before Judge Chisholm. City Court of Savannah. July Term, 1877.</p> <p>Reported in the decision.</p>

Statute of frauds. Contracts. New trial. Before Judge Johnson. Emanuel Superior Court. October Adjourned Term, 1877. Edenfield sold goods fo Daniels to the amount of $50.00, and charged them to Tiim on his books. Canady was indebted to Daniels in a like amount. Upon Canady’s request, Edenfield gave Daniels credit for $50.00, and charged the same to Canady. This was with the consent of Daniels. The indebtedness of Canady to Daniels was based on a gaming consideration.

Mandamus. Practice in the Superior Court. Before Judge Tompkins. Glynn Superior Court. November Term, 1877. Dure recovered certain judgments against the Mayor etc., of Brunswick.

<p>Contracts. Specific performance. Waiver. Before Judge Bartlett. Greene Superior Court.. September Adjourned Term, 1877.</p> <p>Beported in the decision.</p>

<p>1. Tlie personal property of J. R. Smith being under levy when set apart by the ordinary as exempt, the judgment of the ordinary is of no force against the levy if the notice served upon the plaintiff in fi. fa. designated no time for hearing the application for exemption, and if the notice published in the gazette described the applicant as R. J. Smith, instead of J. R. Smith, there being in the county at the time a person hearing the former name.</p> <p>2. The mere presence of the plaintiff’s attorney when the ordinary acted upon and approved the application, was no waiver of notice or of legal publication, the attorney not having appeared as such, nor taken any part in the proceedings.</p>

<p>Misdemeanor in disturbing a religious congregation, which one count of the indictment charges that the defendants committed “in a tumultuous and boisterous manner, and by indecently acting,” so as to “ disturb a congregation of persons lawfully assembled for divine service at the First African Baptist Church, in Savannah,” and the second count charges that defendants “ did then and there indecently act and attempt to prevent the administration of the holy sacrament of the Lord’s supper at the First African Baptist Church in Savannah,” is sufficiently set out to support a verdict, and unless demurred to specially for want of averments specifically named in the special demurrer, the indictment will be upheld as good.</p>

Ejectment. Tax. Levy and sale. Evidence. Mesne profits. Before Judge Tompkins. McIntosh Superior -Court. November Term, 1876. This was an action of ejectment by William C. Tinker against Richard L. Morris and Charles II. Steadwell, for a certain island of about sixteen acres, called Big Myhall, lying in the waters of the Altainaha river, with the adjoining marshes and the appurtenances, including a count for mesne profits. The action was commenced October 23d, 1S72.

New trial. Municipal corporations. Roads and bridges. Negligence. Damages. Before Judge Hillyer. Eulton Superior Court. October Term, 1877. Wilson brought case against the city of Atlanta, alleging substantially the following facts: On June 13, 1875, he, with his three children, was riding along Harris street, in Atlanta, when one of his horses became frightened at the whistle of an engine near by, and sprang so suddenly forward as to break the swingletree.

Claim. Factor’s lien. Judgments. Before Judge Crisp. Webster Superior Court. September Term, 1877. Stallings obtained judgment against Jowers on March 18, 1873, and baáfi.fa. issued thereon levied on five bales of cotton on the 28th day of December, 1873. This cotton was made by Jowers on bis plantation during said year, and was delivered by bim to Harrold, Johnson & Co., on said day, and levied on immediately after said delivery. Harrold, Johnson & Co. interposed claim.

Evidence. Deeds. Grants. Officers. Before Judge Harris. Wayne Superior Court. March. Term, 1877. This was an ejectment suit in which plaintiff recovered judgment; defendant moved for a new trial, which was refused, and he excepted. The other facts will be found in the opinion.

Equity. Mortgage. Levy and sale. Before Judge Wright. Decatur Superior Court. November Term, 1877. Smith et al. filed their bill against Bowne etat., making, in substance, the case presented by the head-note, and praying that the land be resold under the mortgage lien, and the proceeds be appropriated to the satisfaction of the notes held by them, and the balance paid to the purchasers at the prior sale under the common law execution.

<p>1. A declaration to the effect that defendant had received and converted plaintiff’s cotton, knowing it to have been stolen; that criminal prosecution had been commenced previous to bringing the civil suit, and that the same was brought within the statute after discovery of the fraud, should have been upheld as sufficient in law, and the court was right not to dismiss it on demurrer</p> <p>2. Where inquiry was made of defendant touching the cotton when the plaintiff first missed it, and defendant evaded the inquiry by referring to his clerk, it was not error to charge section 2635 of the Code upon that point, as the principle there stated applies.</p> <p>3. Whether the case was one in which vindictive or punitory damages could be legally assessed or not, is immaterial, as the evidence, without such damages is sufficient to uphold the verdict.</p> <p>4. The indictment against the thieves and the receiver of the stolen goods, was admissible to show that plaintiff had prosecuted the parties for the felony, under section 2970 of the Code, befoxe suing on the civil side of the court.</p> <p>5. Under the ruling in 46 Ga., 298, the confessions of one of the principal thieves was admissible to prove his own guilt; but if not, the evidence is abundant to sustain the verdict.</p> <p>5. The verdict is in accordance witli the law, and supported by the evidence.</p>

Claim. Sheriffs. Levy and sale. Practice in the Superior Court. Before Judge Wright. Decatur Superior Court. November Term, 1877. An execution in favor of the state of Georgia against Griffin, tax collector, Harrell, Jeter and others, sureties, was levied by Harrell, who was then sheriff, upon certain land as the property of Jeter. The latter, for his family, filed a claim.

Bailroads. Negligence. Damages. Master and servant. Before Judge Bartlett. Greene Superior Court. September Adjourned Term, 1877. Newsome brought case against the Georgia Bailroad. The evidence showed that plaintiff was riding in a buggy near the railroad track ; that, as the train' passed, the engineer caused the engine to whistle twice in quick succession, which frightened plaintiff’s horse and caused him to be thrown from the buggy and injured.

New trial. Damages. Before Judge Hall. Eulton Superior Court. October Adjourned Term, 1876.

<p>1. The principal may sue his agents and recover from them money collected for him under the statutory form of pleading, upon their written acknowledgement of the receipt of such money from a third person for their principal, and such receipt is sufficient evidence to authorize a recovery without more.</p> <p>2. The principal being dead and his administrator the party plaintiff, the defendants are incompetent as witnesses in the case under the Code, §3854; par. 1. If it be desired to introduce them to prove facts transpiring with the administrator, or other living person the attention of the presiding judge must-be called thereto by specific questions or by the pleadings, so as to show to him their competency for such purpose.</p>

Administrators and executors. Levy and sale. Executions. Amendment. Equity. Before Judge Bartlett.' Wilkinson Superior Court. April Term, 1877.

<p>In the absence of explicit language clearly expressing the will of the legislature to tax the bonds of the state, the general assembly will not be presumed to have passed upon so grave a question of public policy from the use of general words, especially when like words have been employed in former acts, and the executive department has never construed them to embrace state bonds: therefore, the tax act of 1877, empowering and authorizing “ the governor, with the assistance of the comptroller general, to assess and levy a tax upon the taxable property of the state,” cannot be legally construed to authorize a tax upon the bonds of the state.</p>

Criminal law. Husband and wife. Witness. Practice in the Superior Court. New trial. Practice in the Supreme Court. Before Judge Pottle. Madison Superior Court. March Term, 1877.

<p>Estoppel. Equity. Before Judge Hillyer. Fulton Superior Court. October Term, 1877.</p> <p>Reported in the opinion.</p>

Sheriff. Attachment. Levy and sale. Claim. Before Judge Peeples. Fulton Superior Court. October Term, 1876. Perkerson, as sheriff of Fulton county, levied an attachment in favor of Thompson & Pettibone against Yalentine, on certain personalty in the possession of the Georgia Railroad. Mrs. Bodega claimed title to the property, and demanded, through her husband and counsel, possession thereof. Perkerson refused to deliver possession except on the filing of a formal claim.

Jurors. Sales. Warranty. Estoppel. New trial. Before Judge Buchanan. Fayette Superior Court. November Term, 1877.

<p>1. An affidavit under section 4072 of the Code, to eject intruders, should be sufficiently certain in the description of the land to enable the sheriff to identify the premises. The want of such certainty is cause for setting aside the judgment, after trial on counter-affidavit, and after verdict and judgment in favor of the plaintiff.</p> <p>2. Judgment was properly set aside on motion, where the only description was : “the following tract or parcel- of land, to-wit, fifty acres of what is known as Elliott’s Bluff, a survey of land situate on the south side of Crooked river, in Camden county, Georgia.”</p>

<p>1. The widow oí a deceased citizen of another state is entitled to dower in lands situated within this state, of which her husband died seized.</p> <p>3. Waiver of dower does not result from the acceptance and retention of a gift of personalty, made by the husband to the wife in contemplation of death, and declared in writing to be for her individual use and benefit, as part provision for her, and as part of her interest in his estate, nothing being said or written in relation to dower, or to waiving the same, or to taking personalty in lieu thereof..</p> <p>3. A widow having elected, under section 1771 of the Code, to take an amount in money, absolutely, in lieu of dower, and having commenced the prescribed legal proceeding to carry out her election, and the heirs at law having met her with a denial of her right to dower, raising the question by amending a bill in equity, already pending, touching her right to a year’s support, etc., and she having answered, and (using her answer as a cross-bill) having called upon them to account in relation to advancements received in the life-time oí the intestate, so that the bill and its amendments, together with the cross-bill, now involve dower, year’s support, advancements, and the title to certain realty conveyed by her to her husband before the marriage, an injunction granted by the chancellor, on the hill as amended, restraining her from further prosecuting at law her claim for money in lieu of dower, will not be interfered with by the supreme court, notwithstanding her right to dower, or to money in lieu of it, is in a high degree probable. The widow, as appears from the record, not being without the means of comfortable support, and equity having taken possession of the controversy between her and the heirs, so as to consolidate all its branches into one suit, an adjustment of the whole by one trial will api>arently be for the best interest of all concerned.</p>

Administrators and executors. Bankrupt. Arbitrament and award. Judgment. Presumptions. Before D. H. Pope, Esq., Judge])ro hao vice. Lee Superior Court. November Term, 1877. The question made in this case arose upon an affidavit of illegality to, and a bill filed to enjoin an execution in favor of McKinzie, guardian, against Laramore, executor. On demurrer the court dismissed both the illegality and the bill. To this, Laramore, executor, excepted.

<p>A discharge in bankruptcy will not render a witness competent who would otherwise be incompetent on account of the opposite party to the contract being dead. Under the Code (section 3854) a party to the contract or cause of action in issue or on trial, may be incompetent, though not a party to the action nor interested in the result.</p>

<p>When, at the term at which the trial was had, a motion-was made for a new trial, the brief of evidence agreed upon by counsel and filed, and a rule nisi granted by the court, it was error to dismiss the motion at the hearing because the brief of evidence was not approved by the court. The granting of the rule nisi at the proper term was a presumptive approval, within the meaning of the rule of practice. Such implied approval was enough to enable the court to entertain the motion, and have the agreed brief amended if it was found defective or incorrect.</p>

<p>Executions. Evidence. Before Judge Harris. Ware Superior Court. September Term, 1877.</p> <p>Joel Smith filed his bill against Fanny Sweat and the former sheriff of Ware county, to reform a sheriff’s deed conveying to him certain land. Upon the trial, he offered in evidence the execution under which the sale was made. It was objected to on account of the variance stated in the head-note. The fi. fa. was excluded, and eomjdainant excepted. The trial resulted in a verdict for the defendants.</p> <p>Error is assigned upon the above ground of exception.</p>

Statute of limitations. Bank-bills. Corporations. Stockholders. Before Judge Tompkins. Chatham Superior Court. October Term, 1878.

<p>A grant of " reverted land,” issued in 1845 by the governor to two persons, one of whom was then surveyor general, and the other a secretary of the executive department, is not void by reason of disability in the grantees to take title by grant whilst they were in office. The grant had its validity from the signature of the governor and the attachment of the great seal. The signature of the governor’s secretary was not material.</p>

<p>Yerdict. Claim. Judgments. Practice in the Supreme Court. January Term, 1878.</p> <p>Report unnecessary.</p>

<p>1. Where all the partners are in a situation that would authorize their individual creditors to sue out attachments against them respectively, a creditor of the firm may procure an attachment against the partnership, and have the same levied'upon the partnership effects.</p> <p>2. Declaration in attachment is amendable. Misjoinder of defendants may thus be corrected, where the declaration includes a defendant against whom the attachment did not issue.</p> <p>3. Generally, the rejection of parol evidence going to show the 'terms of a written contract, is correct. .In order for the rejection of any evidence contained in answers offered by the plaintiff to be ground for new trial in behalf of the defendant,-it ought Ito appear affirmatively that the rejection was not on the motion of the defendant himself. Even the improper rejection of evidence is not ground for new trial where the verdict is clearly right, and where the excluded evidence, if admitted, could not have varied the result.</p> <p>3. After a document has been produced under a subpcena duces tecum, the sufficiency of the subpcena as a means of compelling production is not a material question in the case,</p>

Ejectment. Jurors. Deeds. Evidence. Lease. Before Judge Bartlett, Greene Superior Court. March Term, 1877. On August 17,1875, Hart brought ejectment against the Georgia Eailroad for three lots of land at Union Point, adjoining its right of way. Both parties claimed under Morton — the railroad by deed made on March 28,1838, conveying right of way the width of one hundred feet, on each side, from the center of the road-bed.

Practice in the Supreme Court. Garnishments. Corporations. Service. Before Judge Chisholm. City Court of Savannah. November Term, 1877. Plaintiffs in judgment against Barbee had garnishment served on the Central railroad. The deputy sheriff made the following return : “ Sheriff’s Office, Savannah, May 16th, 1877.

Garnishment. Evidence. New trial. Practice in the Superior Court. Before Judge Bartlett. Greene Superior Court. September Adjourned Term, 1877. Garnishment issued on a judgment in favor of Sanders vs. Sanders, and was served on Miller on August 26, 1876. The next term of Greene superior court was held on September 11th, following, and was adjourned to November 20th. On March 12, 1877, at the succeeding term, the garnishee answered, denying indebtedness.

<p>On money borrowed without authority of law, whether by the ordinary, the oounty commissioners, or the county treasurer, no commissions can be retained by the county treasurer out of the county funds; but retaining commissions out of such borrowed money affects the lenders, and not the county, as the county, in the absence of a statute to authorize borrowing, is not bound for any borrowed money which is not applied to its use. If the treasurer has used county funds proper, either to compensate himself for handling money illegally borrowed, or to repay the lenders beyond the sums actually expended for the benefit of the county, he is liable for any deficit thus occasioned.</p>

County matters. Schools. Before Judge Bartlett. Greene Superior Court. September Adjourned Term, 1877. This case arose upon an ^execution issued against Wood, former county treasurer, by the county commissioners of Greene county, for $132.00 principal, with interest, and costs, alleged to be due for funds illegally retained by him. He denied the indebtedness by affidavit of illegality. The issue was submitted to the court upon an agreed statement of facts.

Injunction. Sales. Before Judge Crisp. Macon county. At Chambers. John F. & E. B. Lewis filed their bill against S. T. & W. J. Lofley as administrators of James R. Burnam, deceased, making, in brief, this case : In the year 1877, complainants advanced to James R. Burnam who, while in life, was a farmer, $1,M6.90. Burnam died on the 20th August, 1877. At the time of his death his crop of that year had matured and was ready for harvest and market.

Ejectment. Bankrupt. Deeds. Mortgage. Practice in the Superior Court. Equity. Before Judge Hirryer. DeKalb Superior Court. September Term, 1877. Yeal and Minor brought ejectment against Woodson for certain land. The defendant pleaded that he had become a bankrupt. When the case was called for trial, the defendant moved that the' proceedings be suspended because he had been adjudicated a bankrupt, presenting his plea and proper evidence of the bankruptcy.

Equity. Trusts. Debtor and creditor. Refore Judge Wright. Dougherty Superior Court. October Term, 18UT. This case arose upon a bill in equity filed by Robert as trustee for his wife and children, to protect a plantation, stock, etc., owned by him from being made subject to an indebtedness to N. & A. F. Tift, for supplies furnished in conducting the farming interests on the same.

Claim. Practice in the Superior Court. Eraud. Debtor and creditor. New trial. Before Judge Hillyer. Eulton Superior Court. October Term, 1877. Powell brought ease against W. F. Westmoreland for a tort, and recovered a judgment. The execution was levied on certain property which was claimed by J. G. Westmore-Iand, trustee for the wife and children of defendant in fi.fa., under a trust deed of gift from the latter.

<p>To obtain a reversal, error must be made affirmatively to appear.</p>

<p>1. The rule of court which requires the defeudant in ejectment to admit possession of the land in order to be let in to defend title thereto, does not apply to complaint for land under the statutory form.</p> <p>2. A cestui que trust, for whose use and benefit the suit is brought by the trustee, is such a party to the record as to exclude her testimony in regard to facts which transpired in respect to the trade with the party to the cause of action who is dead, and if oifered as a witness to prove other facts, it is the duty of the party offering the witness to state to the court such purpose, so that the judge may act advisedly thereon.</p> <p>3. Where one party calls the other as a witness, the credibility of the party called and sworn is vouched to the extent of putting such party upon the footing of an ordinary witness, and such witness cannot be impeached by general reputation, but only as any other ordinary witness may be under the rules of law.</p> <p>4. This court will not control the discretion of the presiding judge in refusing to grant a new trial, on the ground that the verdict is against the law and the evidence, where the issue in controversy is matter of fact in respect to the payment for a lot of land in full, and where the evidence, though it may be confused, is sufficient to sustain the verdict, and such verdict is not inconsistent with the justice and equity of the case.</p> <p>Bleckley, Judge, dissented.</p>

<p>1. Under the Code (§1955), a mortgage must dearly indicate the creation of a lien, and specify the debt to secure which it is given. A deed in fee simple, without condition or defeasance, and a bond for titles from the grantee to the grantor, in which bond the grantee obligates himself to convey the premises to the grantor on the payment of a sum of money, do not, separately or together, indicate the creation of a mere lien, but the purpose indicated is, to divest the grantor of title, and to vest title in the grantee until the payment of the debt. To take a bond for a future conveyance, and then deny that the maker thereof had any estate in the premises at the time he gave the bond, no fraud or mistake being alleged, is idle and inconsistent.</p> <p>3. If a judgment creditor, whose judgment is junior to an absolute deed made to secure another creditor, can subject the land without redeeming, or offering to redeem, it is because the registry laws have not been complied with, or else because the debtor having retained possession, the conveyance is to be deemed fraudulent.</p> <p>3. In this case it was error to instruct the jury that they had but one question to consider, and that was, whether the wife of the grantor consented to the conveyance or did not consent to it.</p>

<p>The provision in the constitution of 1877, that “alltaxation shall be uniform upon the same class of subjects . . . within the territorial limits of the authority levying the tax,” does not prevent the imposition by a municipal corporation of a tax on one class of business and not on another.</p>

<p>Title. Contracts. Trover. Onus probcmdi. Before Judge Hall. Eockdale Superior Court. October Adjourned Term, 1877.</p> <p>^Reported in the opinion.</p>

Criminal law. Constitutional law. ' Practice in the Superior Court. New trial. Before Judge Hall. Eockdale Superior Court. October Adjourned Term, 1877. Watkins was indicted for carrying concealed weapons. On the trial, after the jury had been impaneled and the prisoner arraigned, and while the solicitor general was reading the indictment, it was discovered that two of the jurors had been members of the grand jury which found the bill.

<p>Promissory notes. New trial. Before Judge Underwood. Bartow Superior Court. January Term, 1878.</p> <p>Reported in the opinion.</p>

<p>Debtor and creditor. Bankruptcy. Contracts. Before Judge Bice. Clarke Superior Court. February Term, 1878.</p> <p>Beported in the decision.</p>

<p>Criminal law. Charge of court. New trial. Before Judge Buchanan. Heard Superior Court. March Term, 1878.</p> <p>Newman was indicted for assault with intent to murder, alleged to have been committed on his brother, and found guilty. He moved for a new trial, which was refused, and he excepted. Taking the whole charge together, its substance seems to be about this: Assault with intent to murder is like murder without the death; hence the law of murder is applicable mutatis mutandis; to justify killing, where the charge is murder, on the ground that it was done in defence of person or property, it must appear that such act was necessary to prevent the commission of a felony thereon, etc.</p>

<p>Laws. Jurors. Coroners’ inquests. Before Judge Hall. Eoekdale Superior Court. April Term, 1878.</p> <p>Eeported in the decision.</p>

Witness. Attorney and client. Laws. Before Judge Hall. Pike Superior Court. October- Adjourned Term, 1877. West, sued Willis in a justice court.. On the trial, plaintiff’s attorney offered to testify to certain admissions made by defendant to bim. The justice held him not to be a competent witness. Judgment was rendered for defendant. On certiorari by plaintiff, a new trial was awarded on acr count of the above, ruling, and defendant excepted.

Contracts. Evidence. Before Judge Hall. Newton Superior Court. March Term, 1818. To the report contained in the decision, it is only necessary to add that one of the grounds of the motion for new trial was the admission of parol evidence to show what judgments were intended to be settled, and what not, by the agreement wi.th defendant.

<p>Wages of farm hands for labor performed before the homestead is set apart cannot be recovered out of the homestead estate.</p>

Criminal law. New trial. Before Judge Hall. Butts Superior Court. September Term, 1877. At the March term, 1877, of Butts superior court, Thompson was tried for the murder of one Mason, and found guilty of manslaughter. At the next term he moved for a new trial on the ground of newly discovered evidence, the affidavits accompanying the motion showing the facts stated in the head-note and decision. Ann Eliza Gunn was the new witness.

Criminal law. Evidence, New trial. Indictment. Before Judge Buchanan. Meriwether Superior Court. February Term, 1878. Millen was indicted jointly with one Hannah for arson of a house in a town. The first count charged arson in the ordinary form ; the second, in the charging clause, accused both of arson, but in specifying the act, alleged that Hannah set fire to the house, and that Millen was present aiding and abetting him.

<p>Jurisdiction. County Courts. Promissory notes. Practice in the Superior Court. Before Judge Grice. Houston Superior Court. May Term, 1878.</p> <p>Reported in the decision.</p>

<p>Equity. Claim. Homestead. Title. Yendor aud purchaser. Before Judge Bice. Gwinnett Superior Court. March Term, 1878.</p> <p>Beported in the opinion.</p>

<p>Where it is apparent upon the face of a hill in equity -that no decree Jfi can he rendered in favor of complainants, a motion to dismiss it for want of equity may be made at the trial term. When the objection is to the forum only, it must be by demurrer at the first term.</p>

<p>1. Where one partner makes the affidavit of illegality as of the firm, naming it, it may not he the action of the firm; but if his individual property be levied upon, he alone may contest the illegality of the proceeding by affidavit and certóora/i'i, and even if he had not proceeded for the firm, the case ought not to be dismissed.</p> <p>3. Where a e&rtiora/i'i by the firm was dismissed on the ground that two cases between the same parties were improperly joined, it may be renewed within six months after its dismissal.</p> <p>3. Service upon defendants by leaving notice or summons at their store, they nor either of them living at the store, is insufficient; and if they do not appear and plead the judgment is invalid.</p>

<p>Certiorari. Statute of limitations. Before Judge Buchanan. Campbell Superior Court. February Term, 1878.</p> <p>Reported in the decision.</p>

<p>Bankruptcy. Judgments. Lien. Before Judge Hall. Newton Superior Court. March Term, 1878.</p> <p>A fi. fa. in favor of Dearing’s intestate was levied on certain land of Cooper. He both filed an affidavit of illegality, and -claimed the land as his homestead in bankruptcy. The case was submitted to the court without a jury. It appeared that the judgment was rendered in 1867. After-wards Cooper went into bankruptcy, had the land set apart to him as a homestead under the constitution of 1868, and was discharged in 1873. The judgment debt was not proved in the bankrupt court. The judge ordered the fi. fa. to proceed, and Cooper excepted.</p>

Criminal law. License. Indictment Continuance. Before Judge Buchanan. Carroll Superior Court. April Term, 1878. Johnson was indicted for selling liquors by the quart without taking the oath before, and obtaining license from, the ordinary. He demurred to the indictment because it failed to allege that he had not obtained a license from the authorities of any incorporated town or city authorized to grant licenses. The demurrer was overruled.

<p>Pleadings. Appeals. Practice in the Superior Court. Before Judge MoCutchen. Whitfield Superior Court. May Term, 1878.</p> <p>Reported in the opinion.</p>

Mortgage. Title. Contracts. Claim. Before Judge LIall. Newton Superior Court. September Adjourned Term, 1877. A fi. fa. in favor of Lee against Cook, was levied on certain cotton and corn, and also on certain horses and mules; all the property was claimed by Clark, Eosser & Co.; the jury found for claimants; plaintiff moved for a new trial, which was refused, and he excepted. Eor the other facts see the decision.

<p>Constitutional law. Sheriffs. Homestead. Levy and sale. Principal and surety. Before Judge Hall. Newton Superior Court. March Term, 1878.</p> <p>Reported in the opinion.</p>

<p>Contracts. Specific performance. Evidence. New trial. Before Judge Grice. Bibb Superior Court. October Term, 1877.</p> <p>Reported in the decision.</p>

<p>1. During the continuance of the homestead estate no remainder or reversionary interest in the head of the family is subject to levy and sale.</p> <p>2. The homestead estate does not terminate so long as the wife lives as a widow, though there be no family but herself.</p> <p>3. A levy upon “ the remainder after the termination of the homestead estate,” admits the validity of such estate, and on the trial of the issue whether such remainder is subject, the validity of the homestead cannot be questioned.</p> <p>4 Where another distinct tract is levied on and tried in the same claim case with the remainder after homestead, and the jury has found that tract subject, and the presiding judge approves the finding, and the evidence is sufficient to support and sustain the finding, this court will not interpose to grant a new trial in regard to that portion of the verdict, the issues and evidence being distinct and separate as to the two tracts of land,</p> <p>5. The parties as well as the subject matter of the former trial must b'i substantially the same, before the testimony of a witness since deceased, had on the first, can be used on the second trial.</p>

<p>Negotiable instruments. New trial. Before Judge Bartlett. Houston Superior Court. May Term, 1878.</p> <p>Reported in the decision.</p>

<p>Criminal law. Indictment. Before Judge Hall. Spalding Superior Court. February Adjourned Term, 1878.</p> <p>To tbe report contained in the decision, it is only necessary to add that defendant moved in arrest of judgment on the following grounds:</p> <p>“Because the indictment upon which said verdict was founde’d is so defective that an issue could not be made upon it, in failing to allege that the house was kept for the practice of fornication and adultery by herself, or by others, or by any one; and because said indictment does not charge that said offense was committed in the county of Spalding, or in any other county.” (The indictment, in the usual form, ends thus: “For that the said-, in the county aforesaid, on the 10th day of July, in the year of our Lord eighteen hundred and seventy-seven with force and arms, did keep a lewd house, for the practice of adultery and fornication, contrary,” etc.)</p>

<p>Administrators and executors. Principal and surety. Practice in the Superior Court. Before Judge Bartlett. Houston Superior Court. May Term, 1878.</p> <p>Reported in the opinion.</p>

<p>Administrators and executors. Before Judge Grice. Houston Superior Court. November Adjourned Term, 1877.</p> <p>Eeported in the decision.</p>

<p>Notes given in 1876 for excess of interest over seven per cent., upon money loaned in 1873 upon a verbal contract to pay eighteen per centum per annum, are without a legal consideration, and no recovery can be had thereon.</p>

<p>1. In a suit by a widow against a railroad company for the homicide of her husband, a request to charge that no recovery could be had unless the employees who caused the death had first been prosecuted, was properly refused. Such request assumed the killing to have been a felony, which was a question for the jury.</p> <p>2. As the evidence discloses that plaintiff’s husband, by the exercise of ordinary diligence, could have avoided the injury to himself, even though the defendant was negligent, the verdict finding damages for his widow was contrary to law.</p>

Attachments. Lien. Judgments. Fraud. Before Judge Crawford. Muscogee Superior Court. November Term, 1877. To the report contained in the decision, it is only necessary to add, that the court charged, in substance, as follows: The issuing and levying of the attachment created a lien, and when judgment was obtained, the lien was good as against the debtor; the only question is, was it good as against the other creditors who held the small judgments against the debtor ?

<p>Guardian and ward. Title. Before Judge Crawford. Muscogee Superior Court. November Term, 1877.</p> <p>Eeported in tlie decision.</p>

<p>Equity. Landlord and tenant. Before Judge Grice. Bibb Superior Court. October Adjourned Term, 1877.</p> <p>One McKellar filed a bill against Yisage et al. for purposes not material here. The litigation was about certain land. Schofield was appointed receiver, and so acted during the litigation. At the April term of court, 1876, a verdict was rendered and decree made. The decree adjudged certain debts to be due, ordered certain credits to be entered, certain lands to be sold, and the proceeds applied as directed. It did not in express terms either continue or discharge the receiver. Afterwards, he rented a part of the land for the year 1877 to Yisage ; at the end of the term he rented to another, and proceeded against Yisage by rule to show why he should not be attached for contempt, alleging demand for the land and refusal to deliver. Defendant demurred to the rule on the ground that the litigation was ended and the receiver no longer in office. The demurrer was overrnled, and the rule made absolute for the delivery of the land. Defendant excepted.</p>

<p>Where the receiver of the court had been in possession of the lands in dispute between parties for two or three years, and had rented the same to the husband of plaintiff in error, who was in possession with her husband, and claimed to retain possession on the ground that the right of possession was in her, and also alleged that she had no notice of the rule to dispossess her, and where it was necessary to act at once in order to rent the land, and the court ordered the sheriff to put the receiver in possession, unless in ten days she showed the court some reason in law or equity why she should not be dispossessed, and unless the court should thereupon countermand the order, to dispossess her and to restore possession to the receiver, her counsel being present in court;</p> <p>Held, that the order was right.</p>