Volume 61 — Georgia Reports

<p>Railroads. Presumptions. Onus prohandi. New trial. Before Judge Hansell. Brooks Superior Court. November Adjourned Term, 1877.</p> <p>Reported in the decision.</p>

Distress warrant. Courts. Jurisdiction. Becoupment. Torts. Before Judge Pottle. Hancock Superior Court. April Term, 1878. Alfriend sued out a distress warrant against Brown before the county judge; defendant filed a counter-affidavit. The amount involved being $400.00, the case was returned to the superior court.

<p>Mandamus. Sheriffs. Before Judge Hansell. Brooks County. At Chambers.</p> <p>Reported in the opinion.</p>

<p>Judgments. Statute of limitations. Levy and sale. Before Judge Crawford. Muscogee Superior Court. May Term, 1878.</p> <p>Reported in the decision.</p>

Constitutioual law. Municipal corporations. Quo warranto. Before Judge Rice. Hall Superior Court. September Term, 1878. This was a quo warranto at the relation of Banks et al. against King et al., on the ground that defendants were unlawfully assuming the rights and powers of a mayor and council of the town of Belton.

Homestead. Estoppel. Equity. Practice in the Superior Court. Before Judge Hall. Henry Superior Court. October Term, 1877. Watters and wife brought their bill against Brown to recover homestead property which they had sold and conveyed, with the consent of the ordinary, to him. They claimed, also, rent for the place. Defendant had paid a part of the purchase money, taxes, etc. — the amount of such payments was a question in controversy.

<p>Practice in the Superior Court. Judgments. Equity. Injunction. Before Judge Grice. Bibb County. At Chambers.</p> <p>Reported in the opinion.</p>

<p>To acquire a prescriptive right to a private -way over land, it is necessary to show the uninterrupted use of a permanent way, not over fifteen feet wide, kept open and in repair for seven years. It is not sufficient to show that^those claiming the prescription have heen accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience.</p>

Evidence. Res gestea. New trial. Before Judge Hall. Pike Superior Court. October Adjourned Term, 1877.

Equity. Dower. Practice in the Superior Court. Ber fore Judge Pottle. Oglethorpe Superior Court. April Term, 1878. To the report contained in the decision it is only necessary to add the following: Mrs. Kinnebrew sought, by bill, to have dower set apart to her in certain land.

Criminal law. Witness. Before Judge Hall. Pike Superior Court. October Term, 1877. Johnson was indicted, tried and convicted for the offense of assault with intent to rape. On the trial, the court permitted Mary L. Davis, the child on whom the assault was made, to testify, over defendant’s objections, she appearing on examination to be only seven years of age. This is the error now relied on.

<p>That a contract with plaintiff for the working of the streets of Americus for one year was made, that he worked them properly, and that lie was discharged before the expiration of the year, makes a psima facie case; it was error to award anon-suit, although it appeared that he was paid up to the time of his discharge, and that the employer reserved the right to “judge of the faithfulness and sufficiency of said contractor and the hands he may have employed.”</p>

<p>Where a bill was filed on the 21st of April, 1876, to set aside deeds to lands, on the ground of usury in the consideration thereof, or to recover back the usury received by the lender, and where, on the 29th of January, 1874, the lands were received by the lender in payment of the debt, and the usury was then paid by the borrower in said lands:</p> <p>'Held, that the statute of limitations of 1871, prescribing that suits for the recovery back of usury must be brought within six months of the date of the payment thereof, is applicable to the bill so brought, and that the bill is barred by that limitation act, said limitation in the act of 1871 not being repealed by the act of 1873 on the subject of usury.</p>

<p>Upon a trial for the offense of assault with intent to murder, the stabbing being admitted, malice will be presumed, and the onus of rebutting this presumption is on the defendant.</p>

<p>The president of a company of lessees of penitentiary convicts, is not an officer of tlie penitentiary, in the sense of section 4805 of the Code, and is not exempt from jury duty.</p>

<p>Criminal law. Practice in the Superior Court. Before Judge Crisp. Lee Superior ‘Court. March Term, 1878.</p> <p>Reported in the decision.</p>

<p>Judgments. Lien. Prescription. Title. Evidence. "Witness. New trial. Before Judge Crisp. Sumter Superior Court. April Adjourned Term, 1878.</p> <p>Reported in tbe opinion.</p>

Municipal corporations. Negligence. Eoads and bridges. Evidence. Before Judge Gibson. Bichmond Superior Court. April Term, 1878. To the report contained in the decision, it is only necessary to add the following: Defendant moved for a new trial on the following, among other grounds: 1.

Equity. Practice in tbe Superior Court. Decree. Before Judge Crawford. Muscogee Superior Court. May Term, 1878. Osborn sued Bryan on a note for the purchase money of land.

Trusts. Prescription. Title. Before Judge Crisp. Houston Superior Court. November Term, 1878.

Bankruptcy. Judgments. Lien. Before Judge Hall. Newton Superior Court. March Term, 1878. Lee’s fi. fa. was levied on Steadman’s property. The latter filed an affidavit of illegality, on the ground, among others, that he had been discharged in bankruptcy. The court overruled the affidavit, and defendant excej>ted. For the other facts, see the opinion.

<p>Levy and sale. Lien. Title. Execution. Tax. Before M. H. Blandford, Esq., Judge pro hao vice. Muscogee Superior Court. November Term, 1877.</p> <p>To the report contained in the decision, it is only necessary to add that Abercrombie ivas a former owner of the land in controversy, and no question seems to have been made as to the fact that it was subject to the judgment against him.</p>

<p>1. The record of a former claim is admissible to show that the points involved are res adjudicata, without any special plea.</p> <p>2. When this is .done by plaintiff, the claimant should be permitted to introduce all relevant evidence in defense of his title. He is not limited to the avoidance of the former judgment.</p> <p>3. Where two judgments are of the same date, and alike in all respects except the amounts, a verdict and judgment on the trial of a claim, that certain property is subject to one, is conclusive in favor of the other between the.sa,me parties., . .</p> <p>4. Immaterial error no ground of new trial.</p>

<p>The wilful and malicious burning of a country church is indictable as arson, under §4879 of the Code.</p>

Practice in tbe Superior Court. Contracts. Promissory notes. Before Judge Bartlett. Houston Superior Court. May Term, 1878. Beach sued Woolfolk on a written promise in the following form : “Georgia, Houston County,-, 1876.

<p>Where a true bill for a misdemeanor is found in the superior court of Clarke county, transferred to the county court, and there tried, the county solicitor is not entitled to any fee for drawing the bill. It belongs to the solicitor general.</p>

<p>To make an award of arbitrators, under a submission of matters in dispute not pending in court, valid as a judgment by entering it on the minutes of tbe superior court, it must be returned “ to the next superior court of the county where the award was made” and entered on the minutes of that court; if returned and entered on the minutes of the superior court of any other county, it is not a valid judgment and will be set aside as a judgment.</p>

<p>Art. 6, sec. 7, par. 2 of the constitution of 1877, which provides in regard to justice courts, that “in all cases there may be an appeal to a jury in said court, or an appeal to the superior court, under such regulations as may be prescribed by law,” does not of itself change . existing laws, so as to allow an appeal in eases where the amount claimed is not over fifty dollars.</p>

<p>Ejectment on the demise of an executor cannot he defended upon a lease by the executor to the defendant where such lease does not cover the premises in dispute.</p>

Ejectment. Estates. Wills. Minors. Parties. Actions. Practice in the Superior Court. Before Judge Tompkins. Chatham Superior Court. February Term, 1878. To the report contained in the decision, it is only necessary to add the following: Pending the suit the plaintiff died, being just under twenty-one years of age. She died testate. Defendants’ counsel moved that the action be ordered to abate; the motion was overruled.

<p>Where a bill for injunction was brought by certain members of a corporation, chartered by the superior court for promoting the cause of temperance and other benevolent objects among the Roman Catholics, against certain other members of said corporation, who were the officers thereof defacto, if not de jure ; and where the bill was predicated upon the charge that these defendants thereto were not dtejwre officers of said corporation, and were not such officers because not elected and appointed pursuant to law, and not elected lawfully because the constitution of the society so incorporated required the election to be held at the regular meeting immediately preceding the anniversary thereof, and the by-laws required all regular meetings to begin at half-past seven o’clock and end at ten o’clock p. m. ; and it was alleged that, though elected at the regular meeting preceding the anniversary, the said officers were elected after ten o’clock p. m. ; and that the members of the council, charged with the chief administration of police duties and constituting a sort of police court, were appointed by the president so illegally elected, and presided over by him; and that these officers and this council were proceeding to enforce discipline illegally against complainants, in the collection of fines and threatening expulsion unless they were paid; and that the constitution and by-laws required the members to be practical Catholics, and the president was not a practical Catholic, because he had been deposed by the Roman Catholic bishop from his office as president of the society, and another appointed in his stead, and because of his contumacy in holding on to his office he had been excommunicated from the church; and the prayer of the bill was for an injunction to restrain these officers de facto from exercising the duties of their respective functions; but where it appears from the constitution, by-laws, answer and depositions, that the entire equity of the bill, if any, rested upon the regularity of the election of the acting president, and it was left in doubt whether he was elected before or after ten o’clock p. m. ; and where it further appeared that the contest for president was between the leading complainant in the bill and the president elect, and that the said leading complainant and his supporters participated in the said election, and after an exciting contest were defeated by a vote of 38 to 29, and that a very large majority of all the members of said corporation was present and participated therein, and others of the complainants were actually elected to office at said election, and no fraud in the management of said election is alleged or pretended, but all were permitted to vote without cavil or question; and where it further appeared that these officers so elected and appointed were in the discharge of mere police and disciplinary duties under the authority vested in such officers by the constitution and by-laws of the corporation, and the right of the president elect to the office he held defacto had been tested by a quo wcurramto against the bishop’s appointee, and had resulted in favor of the president elect, and where the election of officers was annual, and therefore the complaint not irremediable, and where nothing in the charter or constitution or by-laws gave the appointing or deposing power to the bishop, but the ultimate right to rectify any abuse seems to be lodged in the majority of the members at their annual elections:</p> <p>Held. 1. A court of equity is slow to interfere in the mere police courts of a society incorporated for benevolent and charitable objects, and will not apply the harsh remedy of injunction except in cases clearly made out by proof, and where all other remedies are exhausted.</p> <p>2. Under the facts above outlined, an injunction should not have been granted in this case.</p> <p>3. By-laws which prescribe a trial before a select number of members appointed by the president and presided over by him, without the right of appeal, and even restricting witnesses to members of the oociety, and which prescribe that members shall be dropped without trial if lines imposed are not paid, (which fines the rules of the society imposej, are not so unreasonable as to be declared null and void by a court of equity, and the officers restrained by injunction from enforcing them — especially if passed upon, approved and sanctioned by the charter.</p>

<p>Where a number of justice court cases between the same parties were carried to the superior court by appeal, the clerk was entitled to costs in each case, although they were, by consent of counsel, consolidated and tried together.</p>

Husband and wife. Partnership. Contracts. Equity-Practice in the Superior Court. Before Judge Tompkins. McIntosh Superior Court. October Term, 1877. Steadwell brought complaint against Morris on two promissory notes aggregating $1,036.00. Mrs. Steadwell sued Morris on three notes of $800.00 each. The cases were consolidated by consent, and tried together. Defendant .pleaded : 1. That the title to the notes sued on by Mrs. Steadwell was not in her, but in her husband. 2.

<p>Distress warrant. Landlord and tenant. Before Judge Crisp. Lee Superior Court. March Term, 1878.</p> <p>Deported in the decision.</p>

<p>Homestead. Before Judge Crisp. Randolph Superior Court. May Term, 1878.</p> <p>Reported in the opinion.</p>

Garnishment. Interest. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1877. On February 23, 1872, Hawkins, who was a debtor of the Georgia National Bank, was served with summons of garnishment in a case of the state against said bank. This remained until 9th March, 1876, when it was dissolved.

<p>1. An administrator who lias sold the reversionary or remainder interest in the land of the intestate to his widow, who was tenant in dower thereof, and who said in effect to the purchasers of the entire fee from the widow, that if they bought they would get good title to the fee, as he had sold and she had bought the remainder, and he had plenty of what was coming to her from the estate to pay for it, and thus induced them to buy and pay for the land, and to suffer injury if he sell the fee in the land, so once administered by him, as he threatened to do, is estopped, and will he perpetually enjoined from the re-sale thereof.</p> <p>2. An attorney, present when the conversation took place between the administrator and the parties contemplating the purchase, is com-X>etent to testify though the administrator be dead even though he was the advising counsel of the purchasers, especially where the evidence of the administrator at a former trial is in court and could be used, and was used, on the pending trial.</p>

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

<p>Process. Service. Practice in the Superior Court. Promissory notes. Indorsement. Before Judge Crisp. Lee Superior Court. March Term, 1878.</p> <p>Reported in the opinion.</p>

<p>If one voluntarily becomes drunk, and consequently falls down, or lies down, in a state of insensibility on a railroad track, so that he is injured by a passing train, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of employees of the road.</p>

<p>1. In equity, tlie superior court of tlie county where some of the defendants reside, against whom substantial relief is prayed, has jurisdiction, though the object of the bill be to set aside the sale of stock in a manufacturing company located in another county, and which stock is designated in the Code as realty.</p> <p>2. Where interrogatories have been received properly by the clerk in open court, and the entry thereon was not made at the lime when received, the court may allow him to make the entry nunc pro tuno upon clear proof from him and others that they were so received by the clerk.</p> <p>3. Unless the portion of the charge of the court which is excepted to be copied in the ground of the motion for a new trial on which error is assigned, or so plainly referred to in the entire charge, where that is appended, as to be clearly ascertained from the record, it cannot be considered by this court, for the reason that it cannot be understood.</p> <p>4. If evidence be admitted which would not probably change the verdict, a new trial should not be granted, though its admissibility as a naked question of law be doubtful.</p> <p>5. The law of the case was substantially given to the jury, and there is sufficient evidence to support their finding. In such a case, a new trial will not be granted by this court over the judgment of the presiding judge.</p>

<p>Where the issue was whether a mortgage had been settled by the giving of new notes in place of the old one which it was executed to secure, it was not competent to ask the maker generally if the new notes were not given in settlement of a former indebtedness, without specifying what indebtedness.</p>

<p>The heirs of Austin sued Baiford, of Muscogee, and Shipp, of Chattahoochee county, in equity in Muscogee, alleging that the two men had possessed themselves of their father’s estate, but how much each had they did not know, but asked discovery; that Shipp was surety on the bond of the first administrator, who was dead and his estate insolvent, and also of Baiford, who was administrator de bonis non; that Shipp, from 1861 to^ 1866, possessed himself of and held the assets of the estate, they being left with him by the first administrator; that Baiford was insolvent; and prayed an account against Bayford as administrator de bonis non, and against Shipp as surety for Baiford, and for the first administrator now deceased, and also an account of the assets he had been possessed of :</p> <p>Held — 1. That the bill is not multifarious.</p> <p>2. That the remedy in equity is concurrent with, and more complete, than at law.</p> <p>3. That Shipp may be held to answer in Muscogee county.</p>

<p>1. Where, in a claim case, the question was whether or not a sale by-defendant in fi. fa. to his son, principally on credit, was bone fide or not, evidence of knowledge on the part of the purchaser derived from conversation with the vendor, that the latter had not fully paid for the land, was admissible.</p> <p>2. Knowledge of this fact in each holder of the property down to the claimants, was material.</p> <p>3. There being no error in the charge of the court, and the verdict being in accordance with the evidence, a new trial was properly refused.</p>

New trial. Before Judge Crawford. Muscogee Superior Court. November Term, 1877. This was an action against the railroad company for refusing to allow Miss Hughes to pass over its road on a certain excursion ticket which she had purchased ; the refusal resulted from a mistake on the part of the company’s agents; and in consequence of it, she was compelled to remain in Opelika from the morning of June 10, 1876, until about 11 or 12 o’clock p. m., when the next train passed.

<p>Jurisdiction. Courts. Judgments. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1877.</p> <p>To the report contained in the decision it is only necessary to add, that claimant requested the court to give the following charge, which was refused, and she excepted:</p> <p>“If the summons in the case on which the fi. fa. was founded did not affirmatively show that defendant, I. N. Ilart, resided in the 789th district G. M., then the said summons and the judgment thereon were absolutely void, and the plaintiff could not recover.”</p>

<p>A judgment will not be set aside on motion if tbe defect, though apparent on the face of the record or pleadings, be amendable, especially where the defendant appeared and answered the original suit and had his day in court.</p>

<p>Claim. Practice in the Superior Court. Before Judge Kiddoo. Miller Superior Court. April Term, 1878.</p> <p>Reported in the decision.</p>

<p>Attorney and client. Evidence. Guardian and ward. Before Judge Grice. Houston Superior Court. November Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Equity. Practice in the Superior Court. Before Judge Crisp. Lee Superior Court November Term, 1877.</p> <p>Reported in the decision.</p>

<p>The evidence not being sufficient to subject to the debt of the plaintiff in execution one-third of the lands, a new trial must be granted.</p>

Trover. . Witness. Damages. Before Judge Crisp. Sumter Superior Court. April Term, 1878. The following, taken in connection with the decision, sufficiently reports this case : Bell, executor of S. Bell, deceased, brought trover against Clark, with bail process, for two mules for which he had given a bill of sale to the plaintiff’s testator.

<p>Railroads. Damages. Negligence. Evidence. Before Judge Hillyer. Clayton Superior Court. September Term, 1877.</p> <p>Reported in the opinion.</p>

<p>Pending the existence of a homestead, the reversionary interest of the person from whose property it was set apart, is not subject to levy and sale.</p>

Roads and bridges. Nuisance. Jurisdiction. Prohibition. Before Judge Tompkins. Chatham Superior Court. February Term, 1878. Smith et al., petitioned Hart and Buckner, justices, to abate a nuisance alleged to have been created by Taylor, in obstructing their neighborhood road. He applied to the superior court for a writ of prohibition, on the ground that the justices had no jurisdiction. It was granted and they excepted.

Pleadings. Amendment. Practice in the Superior Court. Judgments. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1877.

Injunction. Before Judge Hall, Newton County. At Chambers. Phillips filed his bill against Davis et al. Its object was to enjoin defendants from proceeding to enforce a certain mortgage fi. fa. against him, to have a full account and settlement with them of various matters set out, and to have so much of what was due him, as might be necessary, applied to the extinguishment of the mortgage debt, with a decree for the balance. Insolvency, etc., was alleged.

<p>Principal and agent. Amendment. Parties. Practice in the Superior Court. Before Judge Crisp. Lee Superior Court. March Term, 1878.</p> <p>Eeported in the decision.</p>

Arbitrament and. award. Before Judge Bioe. Walton Superior Court. February Term, 1878. Brand et al. brought complaint for land against Sorrells. The latter, among other things, pleaded arbitrament and award, under a rule of the'United States district court.

Equity. Receivers. Contempt. Before Judge Crisp. Macon County. At Chambers. To the report contained in the decision, it is only necessary to add the following: It appears from the bill of exceptions that the second demand by the receiver was made after service of the bill and order; and the judge certified that it was so admitted by the counsel for defendant.

<p>Whore irregular conduct chai'ged by affidavits upon the jury, is overwhelmingly contradicted by counter-affidavits, and it is made clearly to appear that the defendant was not injured, and could not have been injured, by any conduct which actually occurred, the verdict of the jury should not be disturbed.</p>

<p>1. The receipt by a general agent to collect, of property in settlement of a debt, is as binding on the principal as if it were paid in money. S. Where, underthe evidence, the verdict must necessarily be the same, a new trial will not be granted for error in the charge.</p>

<p>1. A mortgage given by a trustee to his cestui que trust, conditioned for the. faithful execution of the trust, cannot be discharged by his paying the money to himself; and if not, it cannot be discharged by a purchaser of the property mortgaged, paying the money to the mortgagor himself.</p> <p>2. If one of the cestui que ti’usts be a married woman of full age, and after the act of 1866,- which made her a -feme sole as to her separate estate, she assign her interest and that of her minor children in the mortgage, for value received-by-herself or. an agent, the assignment is void as to the'children; but good as to herself. Whether or not she received a consideration paid to herself or her husband as her agent, is to be determined from all the facts and circumstances of the case; and the transactions between her husband and herself, so far as third persons are concerned, should be closely scrutinized to uncover fraud, if any exist, and to discover the real truth of the case. If she really received no consideration, no valid title passed from her; if she did get part of the money paid, herself, or through her husband as her agent, the title from her did pass her interest.</p>

Usury. Injunction and receiver. Mortgages. Debtor and creditor. Contracts. Before Judge McCutchen. Bar-tow County. At Chambers.

Charge of Court. Criminal law. Jurors. New trial.Practice in the Superior Court. Before Judge Hillyeb. DeKalb Superior Court. March Term, 1878. : To the report contained in the opinion, it is only necessary to add the following : The evidence made, in brief, the following case : Lucas, the prosecutor, had been to Atlanta, had become drunk, and been confined in the calabooose the afternoon before the affray.

Promissory notes. Contracts. Pleadings. Before Judge Bartlett. Greene Superior Court. March Term, 1878. Beazley was the maker of the note sued on, and W. A. Beazley its payee; Gignilliat sued as assignee of W. A. Beazley. Eor the other facts, see the decision.

Witness. Evidence. Before Judge Tompkins. Emanuel Superior Court. April Term, 1878. A. W. Hammond & Son brought complaint on a note of Drew for attorneys’ fees. He pleaded the general issue and failure of consideration, in that the attorneys had not prosecuted his case to a successful termination, but had abandoned it. A. W. Hammond died, and the suit proceeded in favor of the survivor.

Criminal law. Confessions. Before Judge Tompkins. Screven Superior Court. May Term, 1878. Burns et al. were indicted for murder. On the trial, the evidence for the state was, in brief, as follows: Deceased went to the house of Y. H. Burns late one Saturday night in December, 1877; the two had been to the store of the latter, and returned late. The two defendants were in the employment of Y. H. Burns, and slept in his kitchen.

<p>Where, in 1876, a debtor mortgaged two mules, waiving expressly all right of exemption, and afterwards disposed of one before the setting apart of either as exempt, the wife of the debtor cannot protect tlie other from levy and sale under the mortgage fi. fa. hy having it set apart under section 20á0 of the Code.</p>

<p>1. A scire facias to forfeit a recognizance which recited that the principal had been indicted for the offense of misdemeanor, that he had given the recognizance for his appearance at the city court of Atlanta, to be held on April 16th, 1877, and that the bond had been duly forfeited, described the offense with sufficient particularity.</p> <p>2. When a city court holds four sessions a year, in March and September for the transaction of criminal business only, and in June and December for civil and criminal business, a bond being forfeited at the June term, the scire facias, being a civil proceeding, was properly made returnable to the next December term.</p>

<p>The counter affidavit to a distress warrant for rent brings the case into tbe superior court, and when said affidavit is dismissed on motion of the plaintiff, the case passes out of the jurisdiction of the court, . and is remanded to the sheriff by operation of law; and the dismissal of the warrant on account of the insufficiency of the plaintiff’s affidavit to procure it was unauthorized, there being no longer any case in court.</p>

Promissory notes. Actions. Before Judge Bartlett. Greene Superior Court. March Term, 1878. To the report contained in the opinion, it is only necessary to add the following : Broach, trustee, sued Davison et al. on the due bill described in the decision. The defendants’ plea and evidence were to the following effect: Davison, the principal debtor, was in partnership with one McWhorter; he sold out to the latter; afterwards Broach, trustee, brought ejectment against McWhorter.

<p>Where a note was given in 1869 in renewal, and in lieu of a former note of greater amount dated in 1862, a homestead taken under the constitution of 1868 was not subject to a judgment based thereon, neither note having been given for the purchase money of the land out of which the homestead was set apart.</p>

<p>Homestead. Before Judge Bartlett. Greene Superior Court. March Term, 1878.</p> <p>Reported in the opinion.</p>

Statute of limitations. Administrators and executors. Before Judge Tompkins. Glynn Superior Court. November Term, 1877. To the report contained in the decision, it is only necessary to add the following: Backer & Cohen, as tranferees of the mortgage, brought suit to foreclose it. Mary A DuBignon, the surviving administratrix of the'mortgagor, defended ; one of the defenses was the statute of limitations of 1869.

Jurisdiction. Pleadings. Practice in tlie Superior Court. Appeal. Judgments. Promissory notes. New trial. Before Judge Hillyeb. Clayton Superior Court. March Term, 1818. The following, taken in connection with the opinion, sufficiently reports this case: Suit, in the usual form, was brought in a justice court by “E. E. Rawson, assignee of A. K. Seago,” against Smith et al., on a promissory note payable to Thomas II. Barton or bearer, and indorsed by Barton.

Liens. Pleadings. Before Judge Tompkins. Pierce Superior Court. March Term, 1878. To the report contained in the decision, it is only necessary to add the affidavit on which the proceedings were based. It was as follows: ) *' Georgia — Pierce county. “Before me, A. M. Moore, judge corporation court of said county, personally oame W, P. Kaybon, who, on oath, says that Kendrick (Signed) W. P. Raybon. “ Sworn and subscribed this May 8, 1876. A. M. Moore, J. O. O. P. C,”

Criminal law. Indictment. New trial. Before Judge Clark. City Court of Atlanta. March. Term, 1878. To the report contained in the opinion it is only necessary to add the following: Eliza Johnson was arraigned on nn accusation containing two counts, one for simple larceny, the other for receiving stolen goods. She was tried, convicted, and moved in arrest of judgment because of misjoinder of counts. The motion was overruled.

<p>Under the constitution of 1868, an exemption of personalty could be supplemented by a homestead of realty. There was no error in enjoining the executions until complainant had time to obtain such homestead.</p>

Railroads. Negligence. Damages. Before Judge Hillyer. Fulton Superior Court. April Term, 1878. Mary A. Holly brought case against the street railroad.

Equity. Dower. Before Judge Hillyer. Fulton County. At Chambers. To the report contained in the decision, it is only necessary to add that Wilson was the complainant, and Peeples et al. defendants ; and that the deed from Davis to Peeples for the lot now in controversy, was dated May 25, 1872.

<p>The first grant of a new trial will not be reversed by this court unless the record clearly makes it appear that the law and the facts require the verdict. In this case it would seem from the record that the verdict, at least as to part of the recovery, is wrong.</p>

Homestead. Bankruptcy. Before Judge Johnson. Washington Superior Court. March Term, 1878. Roberts, administrator, et al., had certain land levied on as the property of T. J. Smith. As next friend for his wife, he claimed the land as having been set apart to her out of his property as a homestead. The jury found the property subject. Claimant moved for a new trial, which was refused, and he excepted. For the other facts see the decision.

Deeds. Evidence. Practice in the Superior Court. Contracts. Before Judge Wright. Webster Superior Court. March Adjourned Term, 1878. To the report contained in the opinion it is only necessary to add the following : It appeared from the evidence that Davis, the plaintiff, made with Renfroe, the payor of the collateral notes, a contract by which the collaterals could have been collected by being received in part payment for certain land.

<p>Where, by an official survey, made by a city engineer, certain property was included within the corporate limits, and the owner, without protest or objection, paid the municipal tax thereon, which was expended for the common benefit and protection of those who were recognized as within the city limits, including such owner, he cannot recover the amount so paid, because, on a re-survey by a subsequent city engineer, the property was ascertained not to be within the corporate limits.</p>

Contracts. Sales. Trover. Title. Evidence. Before Judge Hillyer. Fulton Superior Court. April Term, 1878. To the report contained in the opinion it is only necessary to add the following: G., W. & Co. brought trover against McKinley for a piano. Defendant pleaded as follows: (1.) That she bought the piano, from plaintiffs, to be paid for in installments; and that she had thus paid $365.00, for which credit should be allowed.

<p>1. In a suit on a stock subscription, where one of the conditions was, that a certain amount should be subscribed before the contract was binding, and the amount of subscriptions was in issue, there was no error in admitting the original subscription book shown to have been made up by copying from lists which were carried around to solicit subscriptions, and to have been accepted and used by the directors.</p> <p>2. Declarations by a stock-holder subsequent to the date of his subscription, to the effect that he never intended to pay for the stock taken by him, but took it in order to make up the requisite amount, are not admissible to show fraud, in a suit by the corporation on the contract of another stock-holder.</p> <p>3. Where no plea is hied at the first term, non est factum cannot be pleaded at a subsequent term; if the general issue be pleaded at the first term, non est factum may afterwards be set up by way of amendment.</p> <p>4 The directors having approved and accepted subscriptions to stock of sufficient amount to bind the stock-holders under their contracts, the burden of showing that any of such subscriptions were worthless or fraudulent, is on the party setting up such defense.</p> <p>5. Nothing being specified in the contract of subscription in regard to allowing payment for stock otherwise than in money, and the directors having received subscriptions payable in specifics, the burden was on the corporation to show that they were the equivalent of cash paid in the regular way.</p>

<p>Whilst under the ruling in 56 Ga., 309, a trustee cannot create a lien upon the property of the trust estate for supplies furnished to make a crop, because of the prohibition in section 2335 of the Code, yet the cestui que trust, though a married woman, under the decision in 52 Ga., 205, had power in 1872 to mortgage her separate estate, just as a, feme sole could do, unless restrained by the deed of trust.</p>

Estates. Trusts. Contracts. Persons of color. Deeds. Before Judge Tompkins. Chatham Superior Court. February Term, 1878. Oliver et al claimed the land in dispute through Aspasia Mirault. Cronlt claimed it as administrator of Gaily, who died pending the litigation. Each party filed a bill against Swoll, who claimed under a purchase from the city of Savannah and others; the cases were tried together. For the other facts see the decision.

<p>Practice in the Supreme Court. New trial. Before Judge Crisp. Dougherty Superior Court. April Term, 1878.</p> <p>Report unnecessary.</p>

<p>1. Upon affirmance by this court, the plaintiff has' his option either to enter up judgment against the principal and'sureties on the supersedeas bond, as in cases of appeal, or to cause execution to issue against them without, as in cases of bonds to stay execution.</p> <p>2. The security could at any time have caused execution to be issued, paid it off, taken control of it, and collected the amount due from the parties liable thereon, in the same manner as on an execution based on a stay-bond.</p>

<p>Witness. Evidence. Before Judge Hall. Bartow Superior Court. November Adjourned Term, 1877.</p> <p>Reported in the decision.</p>

<p>In order for a junior mortgage to take precedence of an unrecorded senior mortgage, tlie junior must be duly recorded within the time prescribed by law.</p>

<p>Evidence. Equity. Before Judge Bartlett. Pike Superior Court. April Adjourned Term, 1878.</p> <p>Reported in the decison.</p>

<p>Where, in a criminal case, the solicitor-general makes a motion, the object of which is to commit the defendant, or require him to give new bail, the decision of the court thereon is not reviewable by writ of error to this court at the instance of the state.</p>

Onus 'probandi. Set-off. Debtor and creditor. Practice in the Supreme Court. Before Judge Underwood. Floyd Superior Court, January Adjourned Term, 1878. Smith & Clifford brought complaint against Patillo on a due-bill. Defendant pleaded that the due-bill was given for family supplies, such as sugar, coffee, etc., which were sold by weights and measures which had never been tested as required by law.

<p>Sales. Equity. New trial. Before Judge Underwood. Floyd Superior Court. January Adjourned Term, 1878.</p> <p>Hargrove was appointed commissioner by the superior court of Floyd county to sell the property of the Ridge Yalley Iron Company, which was in litigation. He offered the land at cash sales in parcels. • The first was bid off by one Elliott, and the second was put up and bid off by Walters. Elliott, however, failed to pay the cash, and the eommissioner thought it best to re-sell the whole land, which he did. Walters objected and tendered the amount of his bid, but the commissioner nevertheless re-sold. On the second sale the lot brought more than on the first. Walters filed objections to the commissioner’s report of sale. The court sustained the sale, but offered to order a re-sale, if he would petition therefor. Fie declined to do so, and excepted.</p>

<p>Administrators and executors. Parties. Actions. Before Judge Buchanan. Coweta Superior Court. March Term, 1878.</p> <p>Dennis brought suit against Smith. He alleged that his father died leaving his mother and himself the only distributees of the estate; that his mother became the administratrix, and made the sale of personalty set out in the decision.</p> <p>Defendant demurred to the declaration, among other reasons, because of non-joinder of the administratrix, and because there was no allegation of insolvency. The demurrer was sustained, and plaintiff excepted.</p>

<p>Yendor and purchaser. Sales. Contracts. Evidence. Before Judge Underwood. Polk Superior Court. February Term, 1878.</p> <p>To the report contained in the opinion it is only necessary to add, that defendant tendered in evidence proceedings drawn by plaintiff as attorney for the common vendor, to take a homestead including the cotton now in controversy, filed after the alleged sale to him. This evidence was rejected by the court, and this is one of the errors complained of. The sale forming the basis of controversy was generally of one bale of cotton.</p>

<p>1. Where a constable was specially deputized by the sheriff, and sworn in, for the purpose of serving a particular writ, he became a de facto deputy sheriff, and service by him was legal.</p> <p>2. Where personal service has been effected, objections to the authority of the serving officer, after judgment, are not favored.</p>

Contracts. Interest and usury Before Judge MoCutohen. Bartow Superior Court. January Term, 1878. Marshall, trustee, (the assignee of the original payee) proceeded to foreclose a mortgage made to secure three notes all of the following form, and differing only in amounts and dates: “$9,000.00.

<p>Practice in the Superior Court. New trial. Before Judge Underwood. Floyd Superior Court. January Term, 1878.</p> <p>Reported in the decision.</p>

Bailroads. Negligence. Master and servant. Before Judge Hall. Spalding Superior Court. February Term, 1878. Mrs. Sears brought suit against the railroad for the homicide of her husband, who was a conductor of one of its freight trains. The substantial facts of the case will be found reported in 59 Ga., 136.

Practice in the Supreme Court. Fraud. Evidence. Before Judge Hall. Newton Superior Court. September Term, 1877. Adair & Bros, sued Smith on three guano notes, which contained a provision that the purchaser bought on his own judgment, and the vendor was relieved from responsibility in the sale. Defendant pleaded failure of consideration and fraud in procuring his signature to the notes.

<p>1. Where an action of trespass was brought against the ordinary and commissioners of roads and revenue of the county as individuals, and in their private character, and they pleaded that they acted officially and for the county, and the case was settled without having their plea passed upon or sustained by the jury; and where an order upon the county treasurer was passed by the said ordinary and approved by the said commissioners, that the county pay one hundred and twenty-five dollars fees for defending the suit, and upon the trial of a mandamus nisi to compel the county treasurer to pay the said order for the fees, no other evidence was adduced before the court, acting by consent as judge and jury:</p> <p>Held, that the mandamus ought not to have been absolute.</p> <p>2. Under the facts above detailed the ordinary and commissioners were disqualified to pass the order paying their counsel out of the county funds. (R.)</p>

<p>1. Whether a purchaser of land through which a gas company had run its pipes, by consent of a former owner, took subject to the easement or not, depends upon whether he had notice thereof at the time of purchase, or had notice of facts sufficient to put a reasonable man on inquiry.</p> <p>2. The decree in this case substantially corresponds with the verdict.</p>

<p>Bankruptcy. Judgments. Before Judge Hall. Up-son Superior Court. May Term, 1878.</p> <p>Reported in the opinion.</p>

Judgments. Practice in the Superior Court. Constitutional law. Before Judge Underwood. Richmond Superior Court. April Adjourned Term, 1878. Lockwood brought assumpsit against Dortic to the August term, 1872, of the city court of Augusta. The declaration contained two counts, one in the ordinary form, the other on the copy-note of which the original was alleged to have been lost.

Evidence. Practice in the Superior Court. Mortgage. Damages. Trespass. Before Judge Gibson. Richmond Superior Court. October Term, 1877. Mrs. Wilson sued Ashley for a trespass.

<p>1. To change the onus from the plaintiff in execution to the claimant in a claim case, the plaintiff must show either title in the defendant in fi. fa., or possession in him since the date of the judgment.</p> <p>2. It is not sufficient to show a deed from defendant to another since the judgment, or title out of him; it must be shown in him, if possession is not shown to have been in him or those holding under him since the judgment.</p> <p>3. To authorize the grant of a new trial on the ground of newly discovered testimony, the movant must show diligence; and when it appears that the levy was made in 1873, and the trial not had until 1878, and that the evidence newly discovered concerned only the possession of the land in the tenant of defendant after judgment — a thing in its nature notorious — and that this was discovered from three witnesses who lived in the county, and were always accessible, and that no reason or excuse is given for the want of preparation of the case and the not having these witnesses to testify on the trial:</p> <p>Held, that the diligence which the law requires has not been exercised, and a new trial on account of the discovery of such evidence from witnesses so accessible, should not have been granted.</p>

<p>Mortgages. Injunction. Attorney and client. Before Judge Harris. Glynn county. At Chambers.</p> <p>Reported in the opinion.</p>

<p>1. The second marriage of a bigamist is void, and does not render the woman incompetent to testify against him on a criminal trial.</p> <p>2. A witness may be impeached by proof of general bad character, but not by special acts of adultery.</p> <p>3. Statements made by a prisoner, in the nature of confessions, such as a declaration of intention to tell the truth about the matter, an inquiry as to his power to turn state’s evidence, and the like, though not direct confessions, were inadmissible on his trial for the offense spoken of, it appearing that the witness to whom they were made, told him that if he turned state’s evidence, and there were others implicated and he could prove it, he would “get clear.”</p> <p>4. The verdict was unsupported by the evidence.</p> <p>Bleckley, Justice, dissented.</p>

<p>1. The fact that the witness left the house at nine o’clock at night and returned at six o’clock next morning, on the 3rd of January, 1878, leaving the doors locked and everything safe, and found the doors broken open and the effects left at night gone on his return, are sufficient to show that the burglary was done at night.</p> <p>S. The fact that on the very next night the defendant, in company with another, offered for sale the identical effects stolen from the dwelling so broken and entered, and when a policeman, sent for without his knowledge, made his appearance, defendant ran, was shot at and fired in return, are enough to sustain a conviction that defendant was the burglar.</p> <p>3. A charge to the effect that while a mere naked possession of stolen property missed from a house burglariously entered would not he sufficient to convict, yet, the fact of the burglary being proven, if the possession be very recent and unexplained satisfactorily, such possession would authorize a conviction, is not objectionable — -the entire charge not having been sent up in the record, and the presumption being that all the law of the case, not inconsistent with said extract, was correctly given.</p>

<p>Mortgagees cannot set up title from the deceased mortgagor to a third person for the purpose of defeating the widow’s claim of dower and year’s support.</p> <p>2. Where a debtor, since deceased, gave to a creditor a deed, absolute upon its face, but remained in possession of the property; in a subsequent contest between other creditors and the widow claiming dower and year’s support, parol evidence was admissible to show that the conveyance was only intended to operate as a mortgage.</p> <p>3. The verdict was in accordance with the evidence.</p> <p>See concurrence of Bleckley, Justice.</p>

Practice in the Superior Court. Equity. Fraud. Landlord and tenant. Evidence. Charge of Court. Before Judge Tompkins. Glynn Superior Court. November Term, 1877. Tufts proceeded to dispossess DuBignon from a lot of land, as a tenant holding over, under Code, §4077. Defendant filed a counter-affidavit, to the effect that he did not hold under plaintiff, and this formed the issue. There were no equitable pleadings of any sort.

<p>Equity. Practice in the Superior Court. Levy and sale. Sheriffs. New trial. Before Judge Hall. Spalding Superior Court. February Term, 1878.</p> <p>Jones, Drumright & Co. filed their bill against Thacker & Co. et al., making, in brief, the following ease:</p> <p>One Sindall was largely engaged in business in Spalding county as a cotton buyer. He became indebted to complainants in the sum of about $11,000.00, and to others in large amounts, Reynolds & Sons among them. Sindall had but little visible property, but owned forty-eight shares of stock in the Sav. G. & N. A. R. R., which had been paid for. He suddenly absconded. Complainants sued out attachments on the debts due them and levied on the stock, the attachments being returnable to August term, 1871, of court. At February term, 1872, judgment was had in favor of complainants against the stock as well as other property of defendant. At the same term Reynolds & Sons obtained judgment for the amount of their claim.</p> <p>Reynolds & Sons have had their fi. fa. levied on said shares, they have been sold, and the proceeds is in the hands of the sheriff with notice to hold the same for distribution.</p> <p>Thacker & Co. pretended to be creditors, and instituted their suit in the United States court for the northern district of Georgia, to September term, 1871, for $5,000.00, and service was had at the late residence of Sindall long after he had left the state. Denies Sindall owed defendants. Charges there was a collusive agreement and arrangement between Sindall and Thacker & Co., by which Sindall suffered a judgment to go against him at first term of U. S. court, and thus placed Thacker & Co. in advance of other creditors as to the date of his judgment. Charges that the judgment was fraudulent and collusive, and it should not be allowed to claim proceeds of sale ; and as it is claiming proceeds, asks a decree vacating it and an injunction restraining its enforcement. Charges that on a fair settlement, Sindall would owe Thacker & Co. nothing. Asks that the sheriff may be enjoined from paying out said money, except costs and expense of sales.</p> <p>The answer of Thacker & Co. was substantially as follows :</p> <p>When their suit was brought in the U. S. court, Sindall’s family resided in the district, and legal service was had by leaving copy at Sin dall’s residence. The account was just and correct, and not false or fictitious. Sindall recognized it in writing, and there was no collusion or fraud in the procurement of the judgment, but all was done openly and fairly. This execution is of older date than all others, and is entitled to the money.</p> <p>Afterwards, defendants amended their answer by way of cross-bill, in which they charged substantially as follows :</p> <p>They are creditors of Sindall by judgment to the amount of $5,000.00 obtained inU. S. court, upon which fi. fa. has issued. It is of higher dignity than all others ; deny that said judgment is fraudulent or fictitious, but allege that it is valid and regular-; deny all fraud or collusion in obtaining it; allege that since the filing of their original answer in said case, the issues made by complainants in théir bill, and denied in the original answer of defendants, viz: that said judgment is void because obtained by reason of a fraudulent and collusive arrangement, etc., has been passed upon both in law and in equity, and the validity of said judgment in both trials sustained, and they plead said verdict and judgment in the trial of said issue, on the common law side of court, in bar to any inquiry into the validity of said judgment. Admit Sindall owned the shares of stock; it was levied on by Eeynolds & Sons, and sold on the first Tuesday in dune, 1872, for $2,400.00; but deny that said sum was paid to Gray, sheriff, subject to distribution ; but, on the contrary, charge that forty-four of said shares were bid off at the sale by Samuel Bailey, one of the firm of complainants, his bid, amounting to $2,200.00, being the highest bid. The proceeds of said sale was claimed by defendants on their IT. S. judgment, by Eeynolds & Sons, and also by complainants ; notice to hold said money was given to the sheriff ; but instead of collecting said money, Gray, sheriff, permitted Bailey to retain the amount, subject to be paid on demand when called for. Though the litigation had ended in favor of the defendants’ judgment, and said fund has to be paid to defendants, yet Gray fails to collect, and said complainants refuse to pay into court said $2,200.00, Bailey saying said stock has become worthless, and that he has been unable to obtain from Gray certificates of shares so purchased. Defendants charge that said certificates were tendered to complainants, and the money demanded before the stock became valueless, but complainants refused to accept the certificates and pay the money. Charge said amount cannot be made out of said Gray or his securities. By way of cross-bill, defendants claim they are entitled to said amount ($2,200.00) besides interest. That Gray is out of office and insolvent, and his securities also. That in answer to a rule, he says said fund is not in his hands, but in possession of Bailey. Charges that Gray refuses to proceed against Bailey. Fray for a decree against complainants for $2,200.00 with interest, to be applied to this debt.</p> <p>Jones, Drumright & Go. demurred to the cross-bill on the following grounds:</p> <p>1st. Because the answer by way of cross-bill is not such an answer as is allowable, according to-the rules and practice of the courts of equity, to the original bill filed by these defendants.</p> <p>2d. Because the original bill has been disposed of adversely to complainants, and the issue therein determined long before the filing of the cross-bill.</p> <p>3d. Because defendants have a full and ample remedy at law.</p> <p>They answered the cross-bill substantially as follows :</p> <p>Admit defendants claimed to be creditors of Sindall. These defendants did allege that judgment of plaintiffs was fraudulent and void ; but on application for injunction, both in the superior and supreme courts, it was refused, and defendants to cross-bill have long since abandoned the prosecution of their original bill. They plead that the proceedings under said bill, and issue at law made to set aside said judgment constitute a bar to their original bill; that its issues have been adjudicated, and Thacker & Go. are not entitled to file their cross-bill. Admit Sindall was owner of the shares ; they were sold, some bid off by defendants, some by Thacker & Co.’s attorney. Bid of defendants amounted to about $2,200.00 ; bought because they were judgment creditors, and believed Thacker & Oo.’s judgment collusive and fraudulent. Deny there was any agreement between the sheriff and themselves that they were to retain amount of sales to be paid on demand; on the contrary, they paid over to the sheriff some $300.00 or $400.00 on bid, and soon thereafter demanded of him to give them a certificate of sale of shares, that they might get a transfer on the books of the company, and proposed to give the sheriff a certificate of deposit for balance that might be due on bid, which said certificate was based on funds then in the Griffin Banking Company, a solvent bank, subject to their order. But Gray refused to receive said certificate. Defendants could get no transfer, and soon aftdr the shares declined in value and became worthless. Deny that there was any judgment appropriating amount of sale to Sindall’s judgment; but there is a rule vs. Gray now pending and undetermined. Know nothing of the insolvency of securities of Gray, or of his refusal to sue ; deny all charges of fraud or collusion. They have done nothing to induce Gray not to sue them.</p> <p>The jury found in favor of Thacker & C.o. for $2,026.00. Complainants moved for a new trial, on the following among other grounds:</p> <p>1. Because the court erred in not dismissing said cross-bill. [It appears in the bill of exceptions that complainants offered to dismiss their original bill and all the answers, etc. The court refused this, and stated that complainants could dismiss their own bill but not the cross-bill.]</p> <p>2. Because the court erred in charging that the admission by complainants in their bill of the existence of they?, fa. of Beynolds & Sons waived its being produced.</p> <p>3. Because the court erred in charging that until J ones, D. & Co. paid, or offered to pay, the purchase money of said stock, they could not require' the sheriff to issue a certificate of purchase.</p> <p>4. Because the court erred in excluding evidence from the jury as to present value of the stock.</p> <p>5. Because the verdict was contrary to law and evidence.</p> <p>The court overruled the motion, and complainants excepted.</p>

<p>To authorize the brief of evidence to be sent up as a part of the record under the certificate of the clerk, it must be expressly approved by the court. A recital in the bill of exceptions, that the brief of evidence is a part of the record, and that the testimony is correctly set forth in a certified copy thereof, which accompanies the bill of exceptions, is not sufficient, especially where it appears that the record was not certified by the clerk until seven days after the judge certified the bill of exceptions.</p>

Mortgage. Lien. Title. Before Judge Underwood. Eloyd Superior Court. January Term, 1878. McGuire had certain land levied on under a mortgage fi.fa. in favor of himself against Cleghorn, administrator of Scott; Barker- claimed.

<p>A person who took up hogs as estrays, had them appraised by two persons not freeholders, and sold, no cause, providential or otherwise, appearing for not complying with the statute, was liable to the penalty prescribed in the Code, §1436. Estray laws must be strictly construed.</p>

<p>Parties. Partnership. Practice in the Superior Court. Before Judge Bartlett. Greene Superior Court. March Term, 1878.</p> <p>Reported in the opinion.</p>

<p>Judgments. Before Judge Bartlett. Greene Superior Court. March Term, 1878.</p> <p>Reported in the opinion.</p>

<p>Homestead. Waiver. Mortgages. Husband and wife. Notice. Estoppel. Before Judge Clark. Fulton Superior Court. April Term, 1878.</p> <p>Reported in the decision.</p>

New trial. Before Judge Wright. Dougherty Superior Court. April adjourned Term, 1878.

<p>Guardian and ward. Statute of limitations. Fraud. Before Judge IIillyer. Fulton Superior Court. April Term, 1878.</p> <p>Reported in the decision.</p>

Criminal law. Practice in tbe Superior Court. Charge of court. New trial. Before Judge Clark. City Court of Atlanta. September Term, 1877. Harris was charged with an assault.

Judgments. Executions. Statute of limitations. Before Judge Wright. Decatur Superior Court. May Term, 1878. On November 4th, at the October term, 1861, of Decatur superior court, the railroad company obtained judgment against Ellis, upon which execution issued on the 8th; on the 23d of the same month the clerk and sheriff receipted to the plaintiff on they?, fa. for their costs.

<p>, Contracts. Estoppel. Pleadings. Practice in the Superior Court, Promissory notes. Before Judge Hillyer. DeKalb Superior Court. September Term, 1877.</p> <p>Reported in the decision.</p>

<p>Garnishment. Justice Courts. Jurisdiction. Before Judge Hillyer. Eulton Superior Court. October Term, 1877.</p> <p>Reported in the opinion.</p>

Husband and wife. Eraud. Evidence. New trial. Before Judge Wright. Decatur Superior Court. November Term, 1877. Two executions in favor of Ephraim H. Poole against Thomas E. Hampton, as administrator of Columbus C. King, were .levied upon a house and lot in the city of Bainbridge, as the property of the defendant. A claim was interposed by Mary A. King, the widow of the intestate.

<p>Officers. Costs. Liens. Laws. Before Judge Hillyer. Fulton Superior Court. October Term, 1877.</p> <p>Reported in the opinion.</p>

Criminal law. Evidence. New trial. Before Judge Hillyer. Fulton Superior Court. October Term, 1877. To the report contained in the decision, it is only necessary to add the following: Defendant moved for a new trial on the following, among other grounds : (1.) Because the verdict was contrary to law and the evidence.

Judgments. Evidence. Administrators and executors. Before Judge Buchanan. Troup Superior Court. May Term, 1878. John E. Wilkinson died leaving his son, Thomas W. Wilkinson, his executor.

Homestead. Appeal. Amendment. Before Judge Rice. Jackson Superior Court. February Term, 1878. Burns made application for a homestead. 'The case was set for a hearing on December 4th, 1875. Chandler, a creditor, objected on the ground that the land sought to be set apart was his property. On demurrer the objection was dismissed, and Chandler appealed.

Criminal law. Injunction. Before Judge ITillyer. DeKalb County. At Chambers. Phillips and other liquor dealers doing business in the town of Stone Mountain, filed their bill against the municipal authorities praying that they be restrained from trying, convicting and fining them for a violation of the provisions of an ordinance which the complainants alleged to be void.

<p>Where the summons commencing suit in. a justice court for a debt is duly issued and served, and specifies the time and place of trial, the case will not be dismissed in the .superior court on appeal, on the ground that there is no description whatever of the demand sought to be recovered — no amount, date or contract specified, no account, note, or other instrument mentioned, and no copy attached or set out. All these things, if necessary, may be supplied by amendment.</p>

<p>Practice in the Superior Court. Judgments. Before Judge Crisp. Lee Superior Court. March Term, 1868.</p> <p>A mortgage execution in favor of Haynes against Richardson, describing the property as set out in the second headnote, was levied upon certain personalty as the property of the defendant. The defendant filed an affidavit of illegality, and also claimed for his family. The two cases were consolidated by consent. The affidavit of illegality was, on motion, stricken, because returned to court without an order for that purpose, as required in §3976 of the Code.</p> <p>The defendant moved to supplement the judgment of dismissal with these words : “ with leave to the defendant to apply for such order.” This motion was allowed, and plaintiff excepted.</p> <p>The execution, in the claim case, was then, on motion of defendant, quashed, because it failed to specify the property sufficiently. To this plaintiff also excepted.</p> <p>Error is assigned upon each of the above grounds of exception.</p>

Sales. ’Warranty. Fertilizer. Evidence. Before Judge Rice. Jackson Superior Court. February Term, 1878. Langston & Crane brought suit in the justice court of the 243d district G. M., against Jackson, on a note for $53.00, given for commercial manure, known as Bradley’s Palmetto Acid.

<p>1. In a suit upon a warranty of title, an eviction is established when it is shown that the land was levied upon under a judgment against the person from whom the warrantor derived title, of older date than the warranty, that a elaim was interposed by the warrantee, of which claim the warrantor had notice whilst it was pending, that on the trial of the claim the land was found subject, that it was afterwards sold under the levy, and that the warrantee has yielded, or been turned out of possession.</p> <p>2. The date of the contract, not of the breach, is the material matter in a contest with the homestead right. A judgment or decree, resting on a covenant of warranty older than the constitution of 1808, will prevail over a home-tead right under that constitution, though the eviction took place long after the constitution was adopted.</p> <p>3. When one holding land with warranty of title, is adjudicated a bankrupt, and the land is set apart to him by the assignee as exempt in bankruptcy, his right fo avail himself of the covenant of warranty, upon a subsequent eviction, is unaffected. It makes no difference that the land, before it was set apart as exempt, was offered for sale by the assignee, and bid off by a third person for the bankrupt’s wife, the sale never having been consummated — no money paid, and no conveyance executed.</p>

Ejectment. Deeds. Title. Before Judge Crisp. Sumter Superior Court. October Term, 1877. Súber brought ejectment against Braswell for a tract of land in Sumter county. His title rested upon a deed ¡made by the defendant to him on December 4th, 1875.

Pleadings. New Trial. Practice in the Superior Court. Charge of Court. Before Judge Crisp. Sumter Superior Court. April Term, 1878.

Administrators and executors. Year’s support. Actions. Witness. New trial. Before Judge Rice. Habersham Superior Court. April Term, 1878. On May 4th, 1877, Mrs. Martin brought suit against Doyle, in the county court of Habersham county, on an account in favor of her deceased, husband, for twenty-six and a half days work, at $2.50 per day. A non-suit was rendered, and the case carried by appeal to the superior court.

<p>1. Where, in 1876, local trustees chosen by the teacher and his patrons (conformably to a system established by the county board of education) dismissed the teacher for cruel treatment to pupils, and thereupon the matter was brought by the teacher before the board, who, after hearing evidence on both sides, approved the action of the trustees and passed an order, not revoking his license, but suspending him indefinitely as a teacher at that particular place, the decision of the board was upon a matter of “ local controversy in reference to the construction or administration of the school law,” and not being appealed from, was binding upon all the parties. Code, §1259.</p> <p>2. For teaching done in defiance of such decision, and pending a possession of the school-house acquired by force, no right whatever accrued to compensation out of the public school fund.</p>

Criminal law. Carrying concealed weapons. Before Judge Eice. Clarke County. At Chambers. December 12, 1877. Williams was convicted in the county court of Clarke county of carrying a pistol concealed about his person. It was not disputed that he had a pistol concealed about him at the time charged, but it was shown that the main-spring of the lock was broken, rendering a discharge in the ordinary manner of firing a pistol impossible.

Administrators and executors. Ordinary. Title. Witness. Evidence. Prescription. Jurors. New trial. Practice in the Superior Court. Before Judge Hall. Pike Superior Court. April Term, 1875.

Criminal Law. New trial. Before Judge Lester. Cobb Superior Court. November Term, 1877. Rollins was placed on trial for the offense of assault with intent to murder, alleged to have been committed on the person of Moses Bacon. He pleaded not guilty. The evidence-made, in brief, this case: Bacon, with his wife and three other women, was coming from Roswell to Marietta, in a double-seated buggy, on the afternoon of Sunday, September 16th, 1877.

<p>1. It was libelous, per se, to publish in a newspaper tbe following : “To W. L. Tillman. You are hereby notified that I have made application for a homestead, and the same will come on for hearing at the ordinary’s office, December 15th, 1876. L. K. Willis. ÍT. B. Take notice, merchants and community generally, the thieves (meaning the plaintiff) are refusing to pay for rations, W. L. Ttllman.” A declaration by Willis against Tillman, alleging this publication as a cause of action, and claiming general damages only, was not demurrable.</p> <p>2. In the absence of all the evidence which was adduced at the trial, this court cannot pronounce that slight error in the charge to the jury, or in striking out one or two sentences in a special plea filed in mitigation of damages, ought to be followed by a new trial.</p>

Equity. Practice in the Superior Court. Receivers. Garnishment. Before Judge Buohanan. Upson Superior Court. November Term, 1877. Zorn filed his bill against Wheatley & Co., James P. Walker, and Respess, Swift & Co., making, in substance, this case: Complainant is the owner of a judgment in favór of Woodward against Nathaniel P. Walker, p.incipal, and James P. Walker, security, for about $10,000.00.

Equity. Landlord and tenant. Before Judge Grice. Bibb Superior Court. April Adjourned Term, 1878. Nelson filed his bill against Iglauer, of the county of Bibb, and Boehm, Bendheim & Co., of the county of Chatham, alleging the following facts : Complainant rented to said Iglauer his store, No. 72, on Cherry street, in the city of Macon. In the year 1873, the contract of rent was renewed, to commence on October 1st, 1873, and to terminate on October 1st, 1875.

<p>Pleadings. "Witness. Evidence. New Trial. Before Judge Crawford. Muscogee Superior Court. May Term, 1878.</p> <p>Welch brought case against the Eagle & Phenix Manufacturing Company for $10,000.00 damages, alleging the following facts:</p> <p>On August 19th, 1876, he was in the employment of defendant, blasting rock, the latter undertaking to furnish all the tools and materials necessary and proper for blasting. While performing the work for which he was employed, relying upon defendant to continue to furnish material customarily used for blasting, known as blasting powder, defendant, without his knowledge and consent, and contrary to its duty, caused tripple F blasting powder to be mixed with inferior blasting powder, and furnished the same to plaintiff. This composition was of an unusually explosive character, unfit for safe blasting and dangerous to use, of all of which defendant failed to inform plaintiff. While engaged in blasting, plaintiff had partially loaded an exeavation or drill hole, with the powder thus delivered to him by defendant, and while holding the tamping rod that it might be driven upon the tamping, using every care and precaution that might prevent an explosion, the rock, by reason of the explosive and inferior character of the powder aforesaid, burst, injuring plaintiff, etc.</p> <p>By amendment he added two counts to his declaration, which charged that defendant did supply good powder until the 15th of August, when it purchased an inferior article which proved entirely unfit for the use intended ; that for this reason, without the knowledge of plaintiff, on the 19th of August, it mixed with such inferior article a finer and more explosive quality of powder ; that plaintiff continued his work as had been his custom, and while holding the tamping rod that the same might be driven, the powder, on account of the mixture aforesaid, exploded, injuring him, etc.</p> <p>To this declaration and the amendment, the defendant demurred. The demurrer was overruled.</p> <p>The defendant pleaded the general issue, and satisfaction for the injury complained of.</p> <p>In the course of the trial, it appeared that plaintiff had, on December 12th, 1877, signed the following instrument:</p> <p>“The Eagle and Phenix Manufacturing Company, not admitting its liability in any amount, having paid the physician’s bill and the wages of Welch during his confinement on account of his wounds, pays him $100.00 and gives him a suit of clothes, which is accepted by Welch in full satisfaction of his injury and of all damage sustained.”</p> <p>It appeared further, that this settlement was made after notice from plaintiff’s counsel of their claims to one-half of what might be recovered for fees, and with the understanding with such attorneys that the litigation should proceed for the purpose of fixing the aznount to which they would be entitled.</p> <p>It also appeared that an agent of the defendant had accompanied the plaintiff to the depot of the Mobile and Girard Bailroad, had purchased for him a ticket to Mobile, and had seen him on the train ; that plaintiff, before supplied with the new clothes by defendant, was ragged and in a destitute condition; that he said he was going to the Black Hills, and liad not been seen or heard from since; that this occurred a few months before the trial, and at the time of the settlement.</p> <p>Under these circumstances, counsel proposed to prove by a witness what plaintiff had testified to on a former trial, upon the ground that he was inaccessible. To this objection was made, and the objection overruled.</p> <p>There was evidence to sustain the charges in the declaration ; also, to show that plaintiff had notice of the change made in the powder used, and of tho mixing of a more explosive article with that of inferior quality, which had not answered the purpose for which purchased; also, to show that the premature explosion was the result of plaintiff’s negligence; also, to show that the plaintiff was addicted to drinking and had admitted that the accident was as much his fault as anybody’s. The testimony was abundant and conflicting; it offered a fair field for the argument of counsel and the scrutiny of a jury.</p> <p>The jury returned a verdict for $250.00, “being one-half the damages awarded plaintiff.”</p> <p>The defendant moved for a new .trial, because the court erred in overruling the demurrer, in permitting proof of what the plaintiff swore on a former trial, and because the verdict was contrary to law and to evidence.</p> <p>The motion was overruled and the defendant excepted.</p>

Ejectment. Amendment. Pleadings. Homestead. Husband and wife. Estates. Before Judge Hall. Henry •Superior Court. April Term, 1878. Mrs. Smith brought complaint for land against Camp. No abstract of title was attached to the declaration. The defendant pleaded the general issue. After the jury was stricken, the plaintiff proposed to amend by adding such ■abstract. The amendment was allowed, anj defendant excepted.

Guardian and ward. Before Judge Bartlett. Houston Superior Court. May Term, 1878. Rainey, as guardian for certain minors, cited Cook, a former guardian, to appear before the ordinary for a settlement. The case was carried by appeal to the superior court.

County Courts. New Trial. Before Judge Hall. Newton Superior Court. March Term, 1878. The county judge ordered a new trial in a civil case tried in his court. His decision was carried for review to the superior court by writ of certiorari, where his judgment was reversed. To this ruling defendant in certiorari excepted.

Railroads. Roads and bridges. Before Judge Hall. Newton Superior Court. March Term, 1878. Cox brought case against the railroad company for damages resulting from the killing of a mule. The defendant pleaded the general issue.

<p>An absolute deed made by a debtor to his ereditor as security (the debt- or’s wife consenting thereto), is not void as title on account of usury, if at the time of its execution there was no law against usury or on the subject of usury.</p>

Practice in tbe Supreme Court. Wills. Presumption. Practice in the Superior Court. Non-suit. Before James EL GuERRYEsq., Judge pro hae vice. Olay Superior Court. March Term, 1878. The heirs-at-law of John Miller brought ejectment against Speight for land. The plaintiffs showed a complete chain of title from the state to John Miller. On the cross-examination of one of the plaintiffs, Joseph Miller, he testified that his father, John Miller, left a will at his death.

Justice Courts. Summons. Time. ' Judgments. Before Judge Grioe. Bibb Superior Court. October Adjourned Term, 1877. The Manufacturing Company brought suit against Wolff & Brother on an open account for $25.00, in the justice court of the 716th district, G. M. The summons was dated July 26th, 1877, and returnable on the 14th of the following m onth.

Equity. Corporations. Stockholders. Before Judge Lester. Lumpkin Superior Court. April Term, 1878. On September 9th, 1876, Croft, as executor of Cameron, and another, Stephenson, filed their bill against the Lump-kin Chestatee Mining Company, making, in 'brief, this case: The defendant was incorporated by the General Assembly in the year 1866, with a capital stock of $1000,000.00, of which complainants own 5,225 shares, of the par value of $104,500.00.

<p>Ejectment. Deeds. Notice. Yendor and purchaser. Before Judge Hall. Rockdale Superior Court. April Term, 1878.</p> <p>The ejectment suit of Cheney vs. Rogers, reported in 54 Ga., 168, was enjoined by a bill filed by Rosser, under whom Rogers held. The two cases were tried together, and resulted in a verdict for the defendant in ejectment. Mrs. Cheney moved for a new trial. The motion was sustained and Rosser excepted.</p> <p>It is only necessary to state that the court excluded all testimony tending to show .that those holding under Mrs. Cheney purchased without notice, that the land in controversy represented the proceeds of homestead property, and charged that they were all bound by the recitals in the deed .from Russell to Mr. and Mrs. Cheney, to the effect that the said sum of money invested in the land for which this deed is made, is the proceeds arising from the sale of a homestead set apart by the court of ordinary of Jasper county, Georgia, to William R. Cheney, his wife and children, by virtue of an order from said court.”</p> <p>The jury found in the teeth of these rulings, and hence the new trial was ordered.</p>

Continuance. Claim. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1877. An execution in favor of Thomas & Co. was levied upon certain realty and personalty as the property of the defendant, J. N. Hart. A claim was interposed by Mary E. Hart. The jury found the property subject. The claimant moved for a new trial upon the following grounds: 1. Because at the time this case was tried, January 31st, her leading counsel, Lanier & Anderson, were absent.

Mortgage. Usury. Contracts. Evidence. Before Judge 'Crisp. Lee Superior Court. March Term, 1878. Thomas instituted proceedings to foreclose a mortgage ■executed on March 15th, 1875, to secure the following notes: “$3,000.00. On or before the first day of January, 1873, I promise to pay to •G-. W. Thomas or bearer, $3,000.00, for value received. October 16th, 1871.

Evidence. Charge of Court. Contracts. Warranty. New trial. Before Judge IIillyer. DeKalb Superior Court. March Term, 1878. Parrott & Brother brought complaint against Johnson on a note for $195.75, dated April 4,1876, and due on or before November 1st next thereafter, given for guano sold.

<p>Administrators and executors. Sales. Rescisión. Before Judge Kiddoo. Miller Superior Court. April Term, 1878.</p> <p>Wade, as guardian of the heirs of Stafford, brought complaint against Kirkland, on a note dated May 9th, 1873, due by January 1st thereafter, for $1,492.00. ITe also commenced proceedings to foreclose a mortgage given to secure the payment of the note. The two cases were, by consent, tried together.</p> <p>The defendant pleaded that the note was given for lands purchased from Wade, as administrator of the estate of Stafford, the title to which the latter represented to be perfect ; that the purchase was made upon the faith of this representation; that no legal title had been made to him, and, therefore, the consideration had failed ; that he had expended money in making improvements, etc. He prayed rescission and general relief.</p> <p>The evidence presented the following facts : Wade, as administrator of Stafford, was, by order of the court of ordinary, authorized to sell the wild lands belonging to the estate at private sale. Under this authority, in the spring of 1872, he sold to Kirkland, taking note for purchase money, and giving bond for title. Kirkland having failed to meet his note in the fall of 1872, when it matured, Wade proposed to him to take up the bond, execute deed, and take note secured by mortgage for purchase money. This transaction took place on May 9th, 1873. The change was made for the purpose of enabling Wade to wind up the administration of the Stafford estate, and to transfer the note and mortgage to himself as guardian. He then told Kirkland that he did not have the other title papers, but thought they were in possession of his brother, the executor of his father’s estate, who was absent in Rome. He also stated that the title of the Stafford estate to the lands was good, and he still insists that such is the fact. He has, after thorough search, been unable to find the title papers. They have been lost or destroyed. Kirkland has male several propositions to rescind, based on his inability to pay, but not on defect of title. Kirkland’s possession had not been interfered with in any way. No suit had been commenced against him, nor was any threatened. The main reason why he feared an adverse claimant was the failure of Wade to furnish him with the title papers. In all these matters Wade acted solely in his capacity as administrator.</p> <p>The court charged substantially the principle enunciated in the head note. The jury found for the plaintiff. The defendant moved for a new trial upon numerous grounds, and amongst tliem, because of error in the charge above alluded to. The motion was overruled and the defendant excepted.</p>

Criminal law. Continuance. Evidence. Before Judge Crisr. Lee Superior Court. March Term, 1878. Newsome was placed on trial for carrying concealed weapons. He pleaded not guilty.

Master and servant. Contracts. Damages. Interest. Charge of court. Non-suit. Amendment. Parties. Appeal. New trial. Before Judge Crawford. Marion Superior Court. April Term, 1878.

Estoppel. Landlord and tenant. Title. Contracts. New Trial. Before Judge Hall. Clayton Superior Court. March Term, 1877. Certain justice court executions in favor of Sims against Yessels, and Yessels and Morris, were levied upon twenty-five acres of cotton in the field, 3,988 pounds of seed .cotton 'gathered, twenty-five acres of corn in the field, and six thousand bundles of fodder. A claim was interposed by Dorsey.

<p>Practice in the Supi-eme Ooui’t. New trial. Bill of exceptions. Exhibits. Scire facias. Before the Supreme Court. August Term, 1878.</p> <p>The bill of exceptions was, in substance, as follows: The case of Colquitt, govei’nor, against G. S. Solomon as pi’incipal, and Susan L. Solomon as security, came on to be heard, the same being a scire facias calling on said - defendants to show cause why judgment should not be entered against them for $2,000.00, on a forfeited recognizance. Plaintiff introduced in evidence the record of the proceedings against said O. S. Solomon as follows: The affidavit of Collins charging said Solomon with the offense of defacing a record, and the warrant issued for his arrest, true copies of which, with the entries thereon, are hereto attached, marked exhibits A and B ; the indictment found against said Solomon, which appears of record ; and the order of the superior court forfeiting the recognizance.</p> <p>Plaintiff then tendered the recognizance in evidence, and it was objected to upon the ground that there was a variance between the paper so offered and that described in the scire facias. The court sustained the'objection.</p> <p>Plaintiff then proposed to prove by parol that the parties thereto intended to give a bond to secure the attendance of said C. S. Solomon on the superior court of Fulton county, and to show that the words “ superior court now in session,” as used in said recognizance, were intended to apply, and did apply, to the superior court of Fulton county. The court rejected this evidence.</p> <p>A correct copy of the recognizance is hereto attached, marked exhibit O. The affidavit, warrant and bond copied in exhibits A, B, and C, were attached together, and were in the custody of the proper officer previous to, and up to the time of said trial.</p> <p>No other evidence being introduced, the court rendered judgment in favor of said Susan L. Solomon, the case having been submitted to it by consent.</p> <p>Plaintiff assigns error in the rulings of the court as follows:</p> <p>1. Because the court erred in refusing to admit said bond in evidence as hereinbefore stated.</p> <p>2. Because the court refused to .admit the parol evidence as above stated.</p> <p>3. Because the court erred in rendering judgment in favor of said Susan L. Solomon under the evidence in said case.</p> <p>The presiding judge certified “that the foregoing bill of exceptions is true, and together with exhibits A, B and 0, hereto attached, contains all the evidence material,” etc., continuing in the usual form.</p> <p>Following the certificate were the affidavit, warrant and bond, marked respectively exhibit A, B and O. Upon neither of these exhibits was there any identification, by signature or otherwise, of the judge.</p> <p>The transcript of the record was composed of copies of the affidavit, warrant, bond, indictment, order appointing B. F. Abbott Esq., solicitor-general for this case, the solicitor of the circuit being disqualified, the forfeiture of the bond, the scire facias, and the plea of Mrs. Solomon, all under the usual certificate of the clerk.</p> <p>When the case was called a motion was made to dismiss the writ of error upon the ground that the evidence offered upon the trial was not set forth in the bill of exceptions, nor sufficiently identified as exhibits attached thereto, by the presiding judge. The motion was sustained, the court enunciating the principles set forth in the opinion.</p>

<p>A landlord wlio enters upon his tenant by means of legal process, duly executed by a lawful officer, in the ordinary method of removing a tenant holding over, is not guilty of a forcible entry, though the affidavit upon which the warrant issued was false in alleging that the term had expired. The force .involved in the offense of forcible entry is private force unlawfully exerted. The public force of the state, lawfully exercised, cannot be the means of a criminal entry. Whoever, in the prescribed.mode, calls the law to his assistance instead of taking the law into his own hands, commits no breach of the peace, though in making the call he may commit perjury.</p>

Practice in the Superior Courts. Judgments. Pleadings. Before Judge Hillyeb. Fulton Superior Court. April Term, 1878. An execution in favor of Wallace against Willis, was levied upon certain personalty as the property of the defendant, to which a claim was interposed by Camp.

Bankruptcy. Judgments. Illegality. Before Judge Hillyer. Fulton Superior Court. October Term, 1877. On August 6th, 1874, Mayer & Go. commenced suit against Finney. On the 14th of the same month the latter filed his petition in bankruptcy. The process attached to the declaration was dated August 18th, and-defendant was served on the 26th. On the preceding day he was adjudged a bankrupt. At the spring term, 1875, of the superior court, the case was continued without an entry.

<p>Homestead. Presumption. Improvements. Before Judge Hillyek. Fulton Superior Court. April Term, 1878.</p> <p>Archer obtained five justice court judgments against Hardwick as principal, and Connally as security. Connally paid the judgments, took an assignment thereof, and had the executions based thereon levied upon certain real estate as the property of the defendant. Mrs. Hardwick claimed the land “as not the property of said F. Hardwick in his own right, as it had been set apart to her and her children on her own application, her husband refusing to apply for a homestead, under the homestead and exemption laws as contained in §§2010, 20J1 of the Code of 1873, and that it was not in any way subject to the payment of this debt.”</p> <p>Plaintiff moved to dismiss the claim upon the following grounds:</p> <p>1. Because there was no law authorizing the wife, over the husband’s refusal, to have his property set apart for her and her children as a homestead, under the law by which this, homestead w'as set apart.</p> <p>2. Because the claim showed on its face that the legal title was still in' claimant’s husband, and there was no valid law in this state authorizing the ordinary to divest said Hardwick’s title from him, and to vest it in his wife and children.</p> <p>3. Because the sections of the Code under which this homestead was set apart are unconstitutional, null and void as against this debt.</p> <p>The motion was overruled and plaintiff excepted.</p> <p>Claimant offered in evidence the homestead exemption which had been filed in the ordinary’s office, approved and recorded January 17th, 1876. The application showed the refusal of the husband to apply, the number of minor children, etc., and named as a part of the exemption claimed, this land, which was averred to be all that the husband owned and less than the amount allowed as exempt'from sale by the law, and therefore not requiring a plat, or survey. It also averred that the improvements thereon were not worth $200.00.</p> <p>Plaintiff objected to the admission of this paper upon substantially the same grounds as constituted the basis of his motion to dismiss the claim. The objection was overruled and plaintiff excepted.</p> <p>Connally was then introduced as a witness, and testified that the debt was originally created in 1872, and was proceeding to show that the money was expended in improvements and labor done on the place, when, ón motion of claimant’s counsel, he was stopped and the evidence excluded. Admissions of Hardwick to the same effect were also excluded. To all of which plaintiff excepted.</p> <p>The chai’ge of the court was in accord with his rulings made in the progress of the trial. To this the plaintiff also excepted.</p> <p>The jury found for the claimant. The plaintiff moved for a new trial upon each of the above grounds of exception. The motion was overruled, and he assigned error thereon.</p>

Torts. Druggist. New Trial. Before Judge Underwood. Polk Superior Court. February Term, 1878. Burbank & Jones, druggists, compounded for Eay a prescription for the “ scratches,” with which his horse was affected. They stated to him that it was a prescription prepared by one Mann, which he had used with success, and they recommended it to him.

Husband and wife. Judgments. Estoppel. Before Judge Hillyer. Fulton Superior Court. April Term, 1874. Mashburn, as a member of the firm of Jackson & Mash-burn, became indebted to West, Edwards & Co., $440.00, and being pressed for payment, borrowed from Smith the necessary funds, giving.to him as security the title to a lot in the city of Atlanta. This lot was the property of Mrs. Mashburn, though the deed to Smith was executed by both husband and wife.

<p>1. Neither in attachment nor in distress for rent can judgment, on mere motion, or on the trial of the main case, be rendered in favor of the plaintiff against the sureties upon a bond conditioned alone for the forthcoming of the property levied upon. In either proceeding, the replevy bond prescribed by statute is for the payment of the recovery, not for the production of the property. Code, §§8319, 4083.</p> <p>2. When, after the levy of an execution upon land, an affidavit of illegality setting forth grounds which, if true, show the judgment to be utterly void, is tendered by the proper party, and the sheriff refuses to receive and respect it, an injunction to arrest the sale may be invoked. 47 Oa., 400.</p> <p>3. A prior affidavit of illegality by another defendant whose property was not under seizure, and an adverse judgment thereon, will not bar a co-defendant from using the like remedy after a levy has been made upon his property.</p> <p>4. A bill is not multifarious because it seeks to resist two executions between the same parties, where both are levied upon the same property, and the relief prayed, and the grounds of relief as to both are identical.</p> <p>5. If to a bill at the instance of some of the defendants in a judgment, their co-defendants are proper parties in order to have the judgment declared void or perpetually enjoined, they can be brought in by amendment.</p> <p>6. There was no abuse of discretion in granting the ad interim injunction.</p>

Homestead. Before Judge Underwood. Richmond Superior Court. April Adjourned Term, 1878. In the year 1872, Dickinson, as the head of a family, applied to the ordinary of Richmond county for an exemption of personalty. Litigation ensued, and in December, 1873, the personalty was duly set apart, the ordinary then approving the application. At the time of said application the applicant owned no real estate.

Judgments. New trial. Practice in the Supreme Court. Before Judge Gibson. Richmond Superior Court. October Term, 1877. This case was before this court in 59 Ga., 537.

Evidence. Practice in the Superior Court. Fraudulent convéyance. New trial. Before Judge Underwood. Floyd Superior Court. January Adjourned Term, 1878. An execution in favor of Mitchell, based on a judgment against Cothran, obtained on July 21st, 1874, was levied upon certain lots in the city of Rome,' and a claim thereto interposed by Mary A. Pearson.

<p>After judgment in an action of trover, an execution was issued against principal and bail; tlie bail filed an affidavit of illegality on the following grounds: 1st, that the judgment was obtained on a forthcoming bond, without any service on the bail; that no writ, process, or summons ever issued against the bail; and that service was never waived, nor did said bail appear or plead; 2d, that the property, ex. cept two mules, mentioned in tha forthcoming bond, was, by the principal, delivered to the sheriff, and by the latter sold, and the proceeds applied to the judgment; that the two mules died before judgment, without any fault or negligence of the principal or the bail; 3d, that the verdict was taken by consent of the principal, for a larger sum than was recoverable in the action by reason of the death of the said mules, and that this was done without the knowledge or consent of tlie bail; that the judgment entered on the verdict was contrary to law, etc. The court did not err in dismissing the affidavit of illegality.</p>

<p>1. When the basis of a garnishment is a suit pending in, or a judgment rendered by, the superior court, the garnishment, if returnable to a justice court, is void. The latter court has no jurisdiction of the subject matter.</p> <p>2. If money be paid to a justice of the peace by the defendant in an execution issued from the justice court of the district in which said justice of the peace presides, the payment being induced by a void summons of garnishment, and a void judgment rendered thereon by the justice, he having no jurisdiction of the garnishment proceeding, the justice acts ministerially in receiving the money; and after the defendant in the execution has filed an affidavit of illegalty thereto, on the ground of such payment, thereby yielding his right to reclaim the money, the plaintiff in the execution may, by rule in the superior court, compel the justice of the peace to pay over said money to him as a collection made upon the fi. fa.; and that the justice has paid it over to the plaintiff in the void garnishment (a creditor of the plaintiff in the judgment) will not protect him.</p> <p>3. When, to a rule nisi against him in the superior court, a justice of the peace answers that he acted judicially in respect to the fund in controversy, and his answer is traversed, and the correctness of the answer depends solely upon a question of law arising upon the face of certain documents from his own court, produced by the justice in response to the rule, the traverse is for decision by the court, and not for trial by the jury.</p>

<p>An administrator having, upon a bill filed by him to marshal assets, enjoined the creditors to await a decree for direction, and having died pending the bill, and his administrator and the administrator de lords non of the original estate, both having been made parties complainant to the bill, and thereafter a decree in the cause having been rendered in favor of one of the enjoined creditors for a sum due upon a debt of the highest dignity, and execution having issued upon said decree and been returned nulla lona, and the administrator de lonis non and all the sureties upon his bond being insolvent, and he (the administrator de bonis non) being without any of the assets, his predecessor having wasted them, and he, moreover, having refused to call the estate of his predecessor to account, the creditor may sue upon the bond of the first administrator for the amount decreed, as above, to the creditor, joining in the action as parties defendant, the sureties on said bond with the administrator of the principal. The decree is the only judgment de bonis testatoris, in respect to the original estate, which the creditor has it in his power to procure, inasmuch as the administrator of an administrator does not represent the first intestate. As to the right of creditors to sue where there is an admistrator de bonis non, see 45 Oa., 616; 10 lb., 866; 11 lb., 658. And that resort to equity is optional, not compulsory, see Code, §8082.</p>

Guardian and ward. New trial. Interest. Before Judge Underwood. Floyd Superior Court. January Adjourned Term, 1878.

Contracts. Actions. Master and servant. Before Judge Gibson. Richmond Superior Court. October Term, 1877. Maher brought his action in a justice court against J. F. & L. J. Miller for $6.50, under the circumstances detailed in the head-notes. The magistrate rendered judgment for the plaintiff, stating that the evidence convinced him that the missing sacks were stolen by the drayman. On certiormi this judgment was reversed, whereupon the plaintiff excepted.

Ejectment. Parties. Demurrer. Landlord and tenant. Estoppel. Evidence. New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1877. Adams brought complaint against Lewis and others for lots 7 and 8 of the “Picquet farm,” and mesne profits. At tlie appearance term an order was passed appointing Duval guardian ad litem for three of the defendants, who were minors.

<p>1. A subscriber to the capital stock of a foreign corporation, whose subscription was induced by the false and fraudulent representations (material in their nature) of an agent employed and sent out by the corporation to solicit subscriptions, may, upon discovering the fraud, rescind or repudiate his contract, and proceed by attachment against the corporation, as for money had and received to his use, to recover back any payments which he may have made at the time of subscribing, or afterwards up to the date of discovering the fraud. If the fraud has been condoned by acquiescence or otherwise, or if such legal or equitable rights have attached in favor of creditors of the corporation as that the plaintiff cannot, on that account, recede from his subscription, these are matters for plea or answer, the same not appearing affirmatively on the face of the declaration.</p> <p>2. The declaration is sufficient, and the demurrer thereto was properly overruled.</p>

Eailroads. Torts. Jurisdiction. Yenue. Before Judge MoCul'chen. Whitfield Superior Court. April Term, 1878.

<p>Criminal law. Practice' in the Supreme Court. Corporations. OerUortvri. Before Judge Gibson. Richmond Superior Court. October Term, 1877.</p> <p>The facts are stated in the opinion.</p>

<p>Landlord and tenant. Lien. Judgment. Evidence. Before Judge Grioe. Houston Superior Court. May Term, 1878.</p> <p>Scott foreclosed a landlord’s lien against his tenant, Thornton, for provisions furnished with which to make a crop for the year 1876. The crop was levied on and sold, and a rule brought against Norwood, constable, to show cause why the proceeds should not be paid over to Scott. Lie answered that he had in his hands two justice court executions of prior date, in favor of Pound, which claimed the fund. An issue was thereupon formed as to whether the landlord’s lien or the justice court fi.fas., was entitled to the fund.</p> <p>Scott testified as follows : The money in controversy is the proceeds of the crop for the year 1876. Made arrangements with Day & Gordon for them to furnish Thornton provisions to the amount of $200.00, to enable him to make his crop in 1876. The two joint notes of $100.00 each were given because required by them, in order that Thornton might feel his obligation to pay, but the agreement was that Day & Gordon were to look to him. Witness selected the meat and other provisions as needed, and carried them to Thornton on his (witness’) wagon. Thornton is insolvent and out of the state. He agreed to, and did give witness a lien on his crop of 1876 for the provisions.</p> <p>He also proposed to show that the basis of the justice court fi. fas. was a gambling contract. This the court refused to permit.</p> <p>Day testified as follows : In the spring of 1876, Thornton came to him to buy supplies with which to make his crop being insolvent, witness refused to sell to him, but agreed that if Scott would stand for him he should have the goods. Scott and he returned together, and upon the credit of the former, witness agreed to let the latter have provisions to the amount of $200.00, taking their joint notes of $100.00 each therefor. Scott made the arrangement for the goods to be furnished Thornton ; heard nothing about any lien. Witness looks to Scott for payment and has sued the notes.</p> <p>The jury found in favor of the justice court fi. fas. Whereupon Scott moved for a new trial upon the following grounds:</p> <p>1. Because the court erred in charging, that unless Scott had actually paid the notes to Day & Gordon, he had no lien which he could enforce.</p> <p>2. Because the court erred in refusing to allow Scott to show that the basis of the Pound fi.fas. was a gambling debt.</p> <p>The motion was overruled, and Scott excepted.</p>

<p>1. Where the verdict is for a minor offense included in the offense charged, (as for an assault, when the offense charged was shooting at another,) errors which relate exclusively to the higher offense, and which could not have prejudiced the prisoner in respect to the minor offense, are immaterial on a motion for a new trial.</p> <p>2. To shoot at another with a gun at the distance of twenty steps, is an assault, even if the gun be loaded with powder only.</p> <p>3. An engineer, while running a train upon a railroad, was shot at by the prisoner, who was standing on the side of the road, about twenty steps from the engineer. The latter dodged when the gun fired, and was not hit. No shot struck the cab or the engine, and it did not appear with certainty whether the gun contained anything hut powder or not. The jury found the prisoner guilty of an assault. The verdict was warranted by the evidence, and was not contrary to law.</p>

Vendor and purchaser. Mortgage. 'Lien. Before Judge Hillyer. Fulton Superior Court. April Term, 3878. This was a contest upon a money rule in favor of Tanner against the sheriff, requiring him to show cause why he should not pay over certain funds in his hands, the proceeds of property of Pollock, trustee, sold under execution. Tanner held a mortgage fi. fa., and Bell and Jennings & Ashley, executions based on the foreclosure of liens of material-men.

<p>Railroads. Negligence. Master and servant. Before Judge Clark. Fulton Superior Court. April Term, 1878.</p> <p>Mrs. Webb recovered a verdict against the railroad company for $3,141.33, damages resulting from the homicide of her husband, who was an employee of the company. The facts, so far as material, appear in the head-note. The defendant moved for a new trial upon the following, among other grounds:</p> <p>The court was requested by defendant’s counsel to charge the jury, that if Webb was killed by the carelessness or negligence of the defendant or its agents, such as is charged in the declaration, still, if Webb was guilty of some degree, (a slight degree will do,) but of some degree of actual, real blame and fault, plaintiff cannot recover, if, at the time, he was an employee of the company engaged in the performance of the company’s work. The court refused so to charge, but on the contrary, on that subject, instructed the jury as follows:</p> <p>“You must then be satisfied that the cause of Webbs death was an act of negligence on the part of the company. To this extent his position as an employee may be considered, because if the company was not negligent in putting this projectile there, on .the water-tank, then the plaintiff would not be entitled to recover on account of the death of her husband. Negligence is a question of fact for your consideration, according to the decisions' of our supreme court. The circuit judge is a cypher when he comes to charge the jury upon that subject. It has frequently determined that negligence is exclusively a question of fact for the jury. Now, upon that question of negligence, as it respects this water-tank and the projectile to it, you are to determine whether it was a negligent act by the company. If you determine that it was not, then this man who was injured, being an employee, would not be entitled to recover. But if you believe, from the evidence, that this was an act of negligence by the company, you may then proceed to consider whether the plaintiff, on account of the homicide of her husband, is entitled to recover.</p> <p>“ If this was an act of negligence by the company, and not an act of negligence on the part of Webb, (and upon this side of the question you are the judges, as on the other — as to Webb’s acts, or what you believe he did, from the evidence — it being for you to say whether it was an act of negligence lie did or not), if you determine that the company was negligent, and that he was not negligent, his widow would be entitled to recover from the company the full amount and measure of damages, with regard to which I will charge you hereafter.</p> <p>“But if you find that he was negligent as well as the ■company, then you will apportion the damages; you will lessen the damages in his behalf; that is, in his widow’s behalf on this account, to the extent of this proportion of his negligence.</p> <p>“ For instance, if you find that his widow is entitled to $300, $200, $100per annum, if you find that he was equally negligent, find half of that amount; if you find that he was one-quarter negligent, take three-quarters of that amount. You will understand that in proportion as the negligence is — the proportion of negligence ascribed to Webb — you will assess it accordingly. If three-quarters, you will allow the widow one-quarter; if one-quarter, you will allow the widow three-quarters.</p> <p>“ Her right to recover depends upon his right; she is to be governed by his conduct, as if he were in life, and if the case is one in which he could not recover, she would not be entitled to recover. On the other hand, if he would be entitled to recover on suit brought by him, (supposing he had broken a limb and was in life,) she would be entitled to recover for herself such an amount as was necessary for her support.”</p> <p>The court erred in refusing to charge as requested, and in charging as it did as to the apportionment of damages in case Webb was also negligent as well as the defendant, because contributory negligence by Webb would bar a recovery by his widow in this case.</p> <p>The motion was overruled and defendant excepted.</p> <p>Judge Hillyer being disqualified, the Hon. Richard H. Clark, judge of the city court of Atlanta, presided in his place.</p>

Bailroads. Master and servant. Evidence. Witness. New trial. Before Judge Hileyer. Clayton Superior Court. March Term, 1878. Kenney brought case against the Central Bailroad for $25,000.00, alleging as follows: On January 7,1874, plaintiff was in the employ of defendant as |a section-master on its road.

<p>Indorsement. Promisory notes. Banks. Non-suit. Before Judge Tompkins. McIntosh Superior Court. October Term, 1877.</p> <p>Falk & Company brought complaint against Eva Rothschild as maker, and Henry Rothschild as indorser, of two promisory notes, one payable at the Merchants’ National Bank of Savannah, and the other at the Southern Bank of the State of Georgia. Across the' face of each note was written, “Noted and protested for non-payment. August 9th, 1871. (Signed) Jno. L. Hammond, Notary Public! The defendant pleaded non est factum.</p> <p>The plaintiffs proved the execution and indorsement of the notes, introduced the same in evidence and closed. Henry Rothschild moved a non-suit upon the ground that no notice of non-payment or of protest to him was shown.</p> <p>The plaintiffs then offered to prove the handwriting of John L. Hammond, which appeared on the face of the notes. The court stated that it would consider such proof in, but would nevertheless grant the non-suit, and so did as to the indorser. To this plaintiffs excepted.</p>

Qeritorari. Costs. Practice in the Superior Court. Judgment. Before Judge Tompkins. Chatham Superior Court. February Term, 1878. Seabrook foreclosed a laborer’s lien against Ryan, and a counter-affidavit was filed. The issue thus formed came on for trial before Abrams, a justice of the peace, who rendered judgment for the plaintiff for $16.05 and costs.

<p>Where a creditor claims, not under, but in opposition to, a deed of trust made by his debtor, and seeks to set the same aside on the ground that it is, as to him, fraudulent and void, he is at liberty to proceed against the fraudulent trustee who is the holder of the legal estate in the property, without joining the cestui que trust. 3 Paige, 379; Pomeroy on Remedies, §357. A decree setting aside the deed, or charging the property with the creditor’s demand, will, if fairly and honestly obtained, conclude the cestui que trust as being represented by the trustee, but it is subject to be impeached for fraud or collusion. 4 Barbour, 233.</p>

Executions. Administrators and executors. Debtor and creditor. Equity. Fraudulent conveyance. Parties. Before Judge Tompkins. Emanuel Superior Court. April Term, 1878. Held: that notwithstanding the facts alleged, equity would not interfere at the instance of the administrators, but that the creditors of the estate could enforce their demands against the land, notwithstanding the pretended claim of title under which the defendant Jones held.

Partition. Tenants in common. Title. Prescription. Notice. Deeds. Consideration. Before Judge IIillyer . Pulton Superior Court. .October Adjourned Term, 1877. On November 19, 1873, Holland, claiming to be tenant in common with Sewell of 145 acres of land in Fulton county, filed his petition for partition.

<p>Equity. Banks. Stockholders. Statute of limitations. Res adjucUoata. Assignment. Practice in the Supreme Court. Before <Iu->ge Tompkins. Chatham Superior Court. May Term, 1878.</p> <p>On the 2d day of April, 1870, George W. Anderson and Hugh W. Mercer, assignees of the Planters’ Bank of the State of Georgia, filed their bill in Chatham superior court against a number of persons, including Branch, Sons & Co., the plaintiffs in error, represented to be creditors of said bank, in which they alleged, in substance, as follows: That the president and cashier of the bank, under instructions from the stockholders, given because the bank was insolvent, had made a deed of assignment to them on July 9th, 1866, (a copy of which was attached) conveying to them all the property and assets of the corporation of every description, in trust, and with power to demand, receive and collect the same, and to distribute them among its creditors equally.</p> <p>That the bank had surrendered its charter, and that the surrender had been accepted by the legislature, by resolution approved March 18, 1869 ; that they, the said assignees, had proceeded to collect and convert the said assets; and had paid a dividend of 20 per cent, to creditors who had presented their claims under a notice published by the assignees.</p> <p>The bill prayed for instructions as to the distribution of the balance of the fund in various particulars, especially as to the rights of persons holding bills which had not been presented before January 1, 1870, it being alleged that all of the outstanding bills on which the bank was indebted had been issued before June 1, 1865.</p> <p>Branch, Sons & Co. having participated in the dividend of 20 per cent, above mentioned, and being parties to the bill, came forward as bill-holders, in response to the bill, and made their claim, and such proceedings were had that on July 14, 1871, a verdict and decree were rendered in which it was adjudged, among other things, that the assignees, after having converted all the assets, and made certain payments which were ratified by the decree, had in their hands ■a certain sum of money, and they were directed to distribute this sum according to instructions set forth in the decree, especially to certain holders of bills of the bank, including Branch, Sons & Co., allowance being made for what they had previously received.</p> <p>Neither the bank itself nor the stockholders were parties to the cause. The assignees set forth in their bill a list of the persons assumed to be creditors upon bills, which appears to have been accepted as correct without inquiry, and distribution was made accordingly.</p> <p>Branch, Sons & Co., being parties to the cause as above stated, came forward with their bills as parties, and received their portion of the fund distributed by the decree. And the whole fund having been paid out, the assignees were finally discharged from their trust on June 30, 1873.</p> <p>On April 14, 1877, Branch, Sons & Co. filed, in the same court, the bill now to be considered. In it they set forth the history of the cause above mentioned, and refer in terms to the record of it, making it a part of their bill, but praying to be excused from attaching it as an exhibit on account of its length. Then, acknowledging that as parties to that cause, they had shared in the distribution directed by the decree, they say there is still unpaid of the bills held by them $26,651.73, which they seek to recover of the defendants, with interest from July lé, 1871, the date of the decree in the former cause directing distribution. They say that these defendants were indebted to the bank at the time of the assignment, each in a certain sum of money for unpaid subscription for stock; and that these debts were assets which the assignees did not collect. That by the charter of the bank its stockholders are bound to redeem its bills in proportion to its stock, etc.; that there is a very large amount of its bills unpaid, including their claim; that the stock of the bank consisted of 10,000 shares of the par value of $100.00 each, of which each of these defendants held a cer tain number. They say that the bills held by them were issued while these defendants held stock, but they do not describe the bills in any manner whatsoever; that they were destroyed after the decree on the assignees’ bill, by some persons unknown to them, and they rely on that decree as a judgment in their favor against the bank on bills. The relief they pray for is a decree against the defendants for their said alleged unpaid subscriptions for stock, and also for the amount of their respective obligations to redeem the bills of the bank to satisfy the aforesaid claim.</p> <p>The provision of the charter of the bank in reference to the individual liability of the stockholders was as follows :</p> <p>“ The persons and property of stockholders for the time being, in said Planters’ Bank, shall be pledged and bound in proportion to the amount of the shares that each individual, or company, may hold in said bank, for the ultimate redemption of the bills or notes issued by or from said bank, during the time he, she or they may hold such stock, in the same manner as in ordinary commercial cases, or simple cases of debt.” Act of Dec. 5th, 1859.</p> <p>At the trial term the defendants moved to dismiss the bill for want of equity. The motion was sustained and complainants excepted.</p>

Equity. Trusts. Powers. Mortgage. Notice. Evidence. Before Judge Pate. Glynn Superior Court. May Term, 1878. Eliza E. Dart and eight children, all of age, filed their bill against Clarinda H. Colesbury and Urbanus Dart, Sr., trustee, to enjoin the foreclosure of a certain mortgage executed by the trustee to his co-defendant, and to decree its cancellation. Mrs. Colesbury demurred to the bill, but tbe demurrer was overruled. This judgment was affirmed by the supreme court.

New trial. Specific performance. Decree. Attachment for contempt. Before Judge Tompkins. McIntosh Superior Court. April Term, 1878. To the report contained in the decision it is only necessary to add the following: Defendant moved for a new trial on the following, among other grounds: 1. Because the verdict is contrary to law and the evidence. 2.

<p>Possession of land in the defendant in execution after the rendition o a judgment against him, casts the onus upon the claimant of showing a better title. A deed to the defendant in execution in trust for his wife, where he paid all the purchase money with his own property and where she paid nothing, is not a better title, because it is fraudulent and void as against this judgment creditor; and the claimant who holds a deed from the trustee and the wife is not protected, unless he be a bona fide purchaser for value without notice; and the question of notice is one, under the facts proven, for the jury, and the evidence in the record is sufficient to support their finding that he had notice.</p> <p>Bleckley, Justice, dissented.</p>

<p>Equity. Injunction. Practice in the Superior Court. Practice in the Supreme Court. Before Judge Grice. Bibb County. At Chambers.</p> <p>Reported in the decision.</p>

<p>1. While the indictment is loosely drawn and might have been bad on special demurrer, the objections are not such as to be good in arrest of judgment.</p> <p>2. Blanks being left, which were filled by the solicitor-general in pencil, but the insertions erased by order of court after the jury had been impaneled and before evidence was submitted, the solicitor stating that they were not made as alterations but as guides to himself, a motion in arrest based on the ground of alterations in the indictment was properly overruled.</p> <p>3. Defendant being charged with murder in causing deceased to fall or leap from a portico, it was error in the court to inquire of defendant’s counsel whether he objected to the jury’s examining the premises, and upon receiving a negative answer, sending them in charge of a bailiff to look at the scene of the alleged homicide.</p> <p>4. Whether or not the counts of an indictment are sufficient, is for the decision of the court, and not of the jury.</p> <p>5. It was error for the court to charge concerning a state of facts in respect to which there was no evidence.</p>

<p>Criminal law. Practice in the Supreme Court. Before Judge Tompkins. Chatham Superior Court. April Term, 1878.</p> <p>Reported in the decision.</p>

<p>Where, at a special term of the superior court, a defendant was convicted of voluntary manslaughter and the judgment was arrested on motion of the defendant, and after the adjournment of said special term the solicitor-general made a motion to annul the arrest of the judgment, in vacation, returnable to the next regular term of the court, and at said regular term the order arresting said judgment was annulled, different judges presiding at the special and the regular term:</p> <p>Held, that the court, at the regular term, had no legal authority to review and reverse the decision, at the special term, and to annul the order arresting the judgment.</p>

Equity. Mechanic’s lien. Levy and sale. Improvements. Before Judge Hillyer. Fulton Superior Court. April Term, 1878.

Administrators and executors. Estoppel. Mistake. Verdict. Practice in the Superior Court. Before Judge Pottle. Warren Superior Court. April Term, 1878. Thomas R. Rabun brought complaint against Susannah Rabun, as executrix of Zachariah Rabun, deceased, for $>367.83, besides interest from March 4th, 1873, alleged to be due him under the will of his father, the testator, from the proceeds of certain land sold by the defendant.

Practice in the Supreme Court. Witness. Evidence. Interrogatories. Practice in the Superior Court. Insurance. Principal and agent. Trusts. Parties. Before Judge Hall. Monroe Superior Court. March Term, 1878.

Husband and wife. Parties. Estoppel. Judgments. Principal and agent. Ratification. Before Judge Wright. Webster Superior Court. March Adjourned Term, 1878. Sarah J. Boyd brought complaint against Alexander Chappell for $600 00, alleged to have been paid him out of her funds by her husband, Uriah Boyd, in settlement of an individual debt of the latter. She charged that the defendant, at the time he received the money, knew that it was the property of plaintiff.

Husband and wife. Statute of limitations. Executors and administrators. Amendment. Before Judge Wright. Webster Superior Court. March Adjourned Term, 1878.

<p>1. Where there are undivided joint ownership and use of lands, and a joint enjoyment of the profits thereof, the owners are partners, and the lands are partnership property. This, however, does not interfere with the rule that the members of the firm are tenants in common, and that each member, for a debt of the partnership, can incumber his individeul Interest.</p> <p>2. Without previous 'authority from his copartner, or subsequent ratification by him, one member of the firm cannot bind, by mortgage, the interest of another member, in partnership lands, though the mortgage be made in the partnership name, and to a creditor of the partnership, to secure a pre-existing debt of the firm, contracted within the scope of the partnership business.</p> <p>3. While a mortgage on lands cannot be foreclosed as to the interest of any person who did not execute, assent to, or ratify the mortgage, it may be foreclosed as to the interest of the person who executed the mortgage, though in executing it he used a partnership name, reciting that he was a member of the firm. He cannot deny that he had an interest in the premises at the date of the mortgage.</p>

Equity. Negotiable'securities. Indorsement. Judgments. Practice in the Superior Court. Dockets. JRemittiiyior. Discovery. Before Judge Crisp. Sumter Superior Court. April Adjourned Term, 1878. Lewis filed his bill against Armstrong, administrator, and others, making, in brief, this case : In 1860 complainant became accommodation indorser for Hand & Bagley, on two notes to defendant’s intestate, James W. Armstrong.