Volume 62 — Georgia Reports

Prescription. Charge of Court. New trial. Before Judge Crisp. Dougherty Superior Court. April Term, 1878. On April 20th, 1869, John H. Newton brought ejectment against James O. Boyd for lot 212 in the first district of originally Early but now Dougherty county. The defendant was served on the 27th of April thereafter, but subsequently died, and Amos Mayo, the then tenant in possession, was served on September 21st, 1872.

Parent and child. Contracts. Levy and sale. New trial. Before Judge Eioe. Gwinnett Superior Court. March Term, 1878. An execution from the justice court of the 407th district, G. M., in favor of Wilson & Hamilton, proceeding for the use of William H. Wilson, against George McMillan, was levied upon one bale of cotton as the property of the defendant. A claim thereto was interposed by Louisa McMillan, a minor daughter of the defendant.

<p>A decree foreclosing a mortgage is conclusive upon the defendant in the hill, and upon any purchaser from him who purchased after the decree was rendered. Hence, in a contest with either, by a purchaser at a judicial sale under the decree, the complainant’s title to the mortgage is not an open question, whether the decree was had in a state court or in a circuit court of the United States. Title to the mortgage was essential to the decree rendered, and was necessarily adjudicated as a part of the case then before the court. If the title was pretended or colorable, and therefore fraudulent, the fraud was no less open to discovery before, than since the decree was rendered. All the privies of the mortgagor were represented by and in him, and his failure to defend is their failure.</p>

Contracts. Insurance. New trial. Before Judge Hall. Newton Superior Court. September Term, 1877. Brand & Hammons brought trover against Clark, Eosser & Company for sixteen bales of cotton. The defendants were warehousemen with whom cotton had been stored by plaintiffs. The sole issue upon the trial was as to the propriety of certain charges made by defendants for insurance on the cotton.

<p>Bankrupt. Composition. Fraud. Evidence. Before Judge Hillyee. Fulton Superior Court. April Term, 1878.</p> <p>Tliurber & Company brought complaint against Lewin, doing business under the name of Lewin & Company, for balance, on account, of $816.90. The defendant pleaded the general issue and discharge by composition in bankruptcy.</p> <p>The only evidence of fraud in the purchase of the goods, the basis of the account sued on, was that of George W. Venable, the credit clerk of plaintiffs. He testified, in substance, as follows:</p> <p>In the summer of 1875 witness made a sale of goods to defendant, amounting to about $2,500.00, for which he paid cash. Continued to make other sales to him during that year, amounting to $9,721.22. Did not sell goods to him during the entire year of 1876, because he did not pay his bills when they became due. On May 10, 1876, sent a bill on him to an attorney for collection. The amount due was paid, and I declined to extend any further credit. On September 9, 1876, defendant called at plaintiff’s store, saw witness at his desk, and inquired of him why he (defendant) could not buy goods from plaintiffs on credit? Witness replied that he could if he (witness) was satisfied that he was responsible and able to pay for what he might purchase. He thereupon stated to witness that he was worth fully $10,000.00 over and above all of his debts and liabilities ; that his stock then in his store was worth $10,000.00, and consisted of goods in merchantable order, which would easily sell for that amount; that he had due him in- good accounts from $10,000.00 to $15,000.00, and that his whole indebtedness did not amount to $1,500.00. This statement -witness entered in a hook kept for that purpose, and believing it to be true, told him that he could have a continuing credit to the extent of $1,000.00 at a time. On the faith of these representations witness sold to him the goods now sued for.</p> <p>The following facts were not disputed : Defendant filed his petition in bankruptcy on February 21, 1877; meeting of creditors for purpose of composition, was held on March 12th, 1877; a composition was had, the proceedings anterior and posterior thereto all being regular, the plaintiffs being notified, etc.; plaintiffs did not vote for the composition, nor did they participate in any way in the meeting of creditors held in connection therewith.</p> <p>Subsequently plaintiffs’ proportion under the composition was paid to them, and the following receipt given:</p> <p>“Atlanta, Ga., May 11,1877.</p> <p> “In re A. M. Lewin & Go. </p> <p>Received of A. M. Lewin & Co., at the hands of Samuel Weil, $282.80, this being twenty-five per cent, of the amount of our claim against him, and being the amount of the composition carried through by the creditors of said Lewin & Co., under the 43d section of the bankrupt act of the 12th of March, 1877, in office of register Black, in the United States district court for the northern district of Georgia, we not having favored or voted for said composition, and we insisting that our claim is of such a character that said Lewin is not released therefrom by said composition, and the said Lewin insisting that this is a full settlement of our demand against him, by virtue of said composition. (Signed) H. K. Thurber & Co.,</p> <p>By D. F. & W. R. Hammond, Attorneys.”</p> <p>The jury found for the plaintiffs. The defendant moved for a new trial upon the following grounds:</p> <p>1. Because the court erred in admitting the testimony of Tenable as to the statements made to him by the defendant before the goods were bought, as to his solvency, etc., such evidence, under the pleadings and the agreed facts, being irrelevant.</p> <p>2. Because the court erred in holding that a debt created by the fraud or embezzlement of the bankrupt, was not satisfied by a composition in bankruptcy.</p> <p>3. Because the court erred in charging that if the jury believed, from the evidence, that possession of the goods was procured from plaintiffs by the fraud of Lewin, the title to the goods would remain in plaintiffs; that a discharge by composition in bankruptcy would not bar the action.</p> <p>4. Because the court erred in charging as follows: “ If the jury believed, under the evidence and the pleadings, that suspicion was cast upon the truth of defendant’s statement as to his solvency, they would have a right to infer that it was untrue, unless the defendant relieved it from that suspicion by evidence explanatory thereof,” although the court added that nothing could be inferred against the defendant from the fact that he did not himself go on the stand as a witness to explain it.</p> <p>5. Because the verdict is without evidence to support it.</p> <p>The motion was overruled, and defendant excepted.</p> <p>cited, on discharge by composition, 11 N. B. Reg., 164; 16 lb., 205 ; 12 B. R., 201; 17 11., 116; 18 II., 74; 5 Reporter, 489 ; 6 lb., 491; Cent. L. J., July 5, 1; 3 Southern Law Rev., N. S., 524. Use of word “ suspicion ” in charge was error. 2 Bouv. L. D., 567; 1 Gr’l’f Ev., §§1, 13.</p> <p>cited, on effect of composition, Rev. Stats. U. S., §5117; 12 B. R., 201; 17 lb., 468; 2 Woods, 173; 122 Hass., 498 ; 5 Reporter, 15; 6 lb., 204. Effect of false representations, Code, §4587.</p>

Jurisdiction. Patents. Injunction and receiver. Before Judge Hillybr. At Chambers. Fulton County. July 20 th, 1878. Merrell filed his bill against Pemberton, making, in brief, this case: In the years 1870, 1871 and 1872, Pemberton obtained letters patent for the Globe Flower Cough Syrup, the Extract of Stillingia, and trade-marks covering these medical compounds.

<p>LWabheb, Chief Justice, was providentially prevented from presiding in tins case.l</p> <p>That the county judge, before suit was brought in the county court, was the plaintiff’s attorney to collect the note, and that as such attorney he brought suit thereon in the superior court and withdrew the same, did not so disqualify him to render judgment on the note in the county court as to make his judgment void, it not appearing that he had any concern with the note or with tkeplaintiff, as attorney or counsel, at or after the commencement of proceedings in the county court. The objection to his competency is not available by affidavit of illegality, if at all..</p>

<p>Principal and security. Lien. Partnership. Before Judge Cjrisp.' Sumter Superior Court. October Adjourned Term, 1877.</p> <p>Taylor brought complaint against Scott and Small on eleven promissory notes, aggregating in amount $935.75, all dated January 8, 1874, signed by David Bagley, J. B. Scott and S. W. Small, and containing the ordinary factors’ crop lien. The defendants pleaded the general issue, payment, and that they were securities for Bagley and had been discharged by the plaintiff’s failure to apply the cotton crop delivered by their principal to him, to the satisfaction of this indebtedness. Upon the issues thus forme’d Scott testified, in brief, as follows : Defendants were securities for Bagley; witness told plaintiff he would not sign as security except upon condition that the latter would apply the cotton crop to be raised'by Bagley during the year 1874 to the payment of the notes. Plaintiff so agreed, and witness signed. Witness would not have become security had it not been for this agreement. Plaintiff knew that defendants were only securities. Bagley delivered enough cotton to pay the notes.</p> <p>Bagley testified as follows: After the notes sued on were signed, he made arrangements witli Taylor & Co. (of which firm plaintiff was a member) to furnish him supplies, giving to them crop liens. They advanced to him $1,500.00. He delivered to Taylor & Co. about thirty bales of cotton of the crop of 1874. He consented that this cotton should be applied to the last liens, but this was without the knowledge or consent of the defendants. These liens were thus discharged in full, and a surplus of $200.00 remained which was applied to the notes on which the defendants were securities.</p> <p>Small testified that he would never have signed as security except for the agreement between Scott and plaintiff, which the former communicated to him before he signed.</p> <p>Plaintiff denied any such agreement, but testified that the notes were given in renewal of others upon which Scott was already security. That he had' no' personal connection with the transactions between Taylor & Co. and Bagley except as a partner; the cotton was delivered to the other members, and the surplus, after paying Bagley’s indebtedness to the firm, was turned over to him, and duly applied to the notes upon which defendants' were securities.</p> <p>The court, in its charge, made the liability of defendants turn upon the fact as to whether there was any such agreement as that testified to by Scott and denied by plaintiff ; it instructed the jury that if there was such an agreement, the fact that Taylor & Co. subsequently advanced supplies and took crop liens, and that the cotton was delivered by Bagley to the firm, and not to plaintiff individually, would not prevent their discharge.</p> <p>The jury found for the defendants. ' The plaintiff moved for a new trial upon several grounds, of which it is only necessary to mention thé one that the court erred in the charge as above set forth. The motion was overruled and the plaintiff excepted.</p> <p>cited 33 Oa., 491; 36 IK, 508 ; 44 IK, 11; 46 IK, 426; 55 IK, 376, 664; 58 IK, 363.</p> <p>cited Code, §2154.</p>

Evidence. Practice in the Superior Court. Admissions. New trial. Before Judge McCutohen. Bartow Superior Court. November Adjourned Term, 1877. On September 25, 1871, Northcutt recovered a judgment against Sciple for $750.00 principal, with interest and costs. Sciple held Hooper’s receipt, who was the plaintiff’s attorney, for $650.00 on this claim, dated on the day after the judgment.

Parties. Pleadings. Partnership. Amendment. Principal and agent. Presumptions. Evidence. Before Judge Hall. Newton Superior Court. September Term, 1876. On August 31, 1875, Pollard & Co. brought complaint against Anderson as executor of Baker, deceased, and Mayfield, under the name and style of Mayfield & Baker, for $2,816.07, besides interest, on an account.

<p>Ejectment. Grants. Deeds. Evidence. Prescription. New trial. Before Judge Underwood. Walker Superior Court. February Term, 1878.</p> <p>On August 7, 1876, John Doe, on the demise of Clements, as administrator of Christopher Day, of Silva, of Solomons, of Cotting, executrix of David G. Cotting, and of Bryant, brought ejectment against Richard Roe, and Wheeler, tenant in possession, for lot of land 263, in 8th district and 4th section of Walker county. The defendant pleaded the general issue and title by prescription.</p> <p>The evidence for the plaintiffs, so far as material, was as follows:</p> <p>1. Grant covering lot 263, 8th district and 4th section of Cherokee county, to Christopher Day, dated July 22, 1839.</p> <p>. 2. Deed from Clements, administrator of Day, to Silva, covering same lot, dated November 5, 1872, recorded October 20, 1873.</p> <p>3. Deed from Silva to Solomons, covering one undivided half interest in said lot, describing it as originally in Cherokee but now Walker county, dated June 24, 1873.</p> <p>4. Deed from Solomons to Cotting, covering such half interest, dated October 15, 1873.</p> <p>5. Appointment of Frances G. Cotting as executrix of her deceased husband, David G. Cotting, November 5, 1874.</p> <p>6. Deed from Silva to Jane Wallace Bryant, covering half interest in said lot, dated in July, 1875.</p> <p>7. R. S. Nealey, who testified, in substance, as follows: Defendant, Wheeler, went into possession of the lot in controversy about four years ago ; witness had possession for one year under a man by the name of Lawrence; he was followed by Scoggins, a son-in-law of defendant, who held under defendant. Witness built a cabin on the place and cleared out the wild growth, which required considerable work. When Wheeler took possession through his son-in-law, some four years since, he cleared some fifteen acres, and added to the house by building a shed. The lot was vacant and uncultivated until witness took it in hand. He held under Lawrence, and not under Minis.</p> <p>8. Thomas P. Harris, who testified substantially as the preceding witness.</p> <p>9. Declaration in complaint for same lot in favor of Silva and David G. Cotting, against John B. Wheeler, filed in office July 15, 1874, and dismissed July 29, 1876.</p> <p>The defendant introduced, in substance, the following testimony:</p> <p>1. The same grant as was offered by the plaintiffs, which had been produced by him under notice.</p> <p>2. Deed from Christopher P. Day to Sarah Beggs, covering said lot, dated May 27, 1839; recorded August 31, 1840.</p> <p>3. .Deed from Sarah Beggs to Philip Minis, dated April 6, 1840.</p> <p>4. Deed from the heirs-at-law of Philip Minis to Calvin C. and John B. Wheeler, dated November 30, 1872.</p> <p>5. Deed from Calvin O. to John B. Wheeler, covering undivided half interest, dated March 1, 1873.</p> <p>6. William Harris, who testified, in brief, as follows: More than ten years before the war, a man by the name of King-went into possession of the lot. While in possession, King said that he went in under one Edwards who stated that he was the agent of Dr. Minis. He remained in possession some two or three years, built a cabin and cleared some land. He was followed by one Spangler. Do not know how long he remained in possession, nor who he held under. Spangler was followed by Edwards, who said, while in possession, that he held under Dr. Minis. Think he remained in possession one or two years. The possession of King, Spangler and Edwards did not cover more than six years. The place became vacant, and so remained until Nealey took possession after the war. It was unoccupied for four or five years before the war; the fences and houses were taken off. Edwards died about the commencement of the war.</p> <p>1. William Wheeler testified, in brief, as follows : As to possession of King, substantially as preceding witness. King was succeeded by Spangler, who said, while in possession, that he held under Dr. Minis. He was followed by one Bird, who went in under Spangler to fill out the time which the latter claimed to be entitled to under Minis; he remained one year. Bird was followed by Edwards, who said, while in possession, that he held under Minis. He cultivated the place two or three years, and then moved off the fence-rails and cabins, stating that Minis had instructed him to do this to keep off intruders. A Mrs. Mitchell occupied a house on a different part of the land while Edwards was in possession, but do not know under whom she held.</p> <p>The remainder of the testimony of this witness was substantially as that of the preceding witness and Nealey.</p> <p>The jury found for the defendant. The plaintiffs moved for a new trial upon the following among other grounds :</p> <p>1. Because the court erred in charging the jury, after stating that a grant issues to a person and not to .a name, that “if Christopher Day and Christopher P. Day are one and the same person, the grant would apply to that person,” there being no evidence to authorize such charge.</p> <p>2. Because the court erred in charging that “if the two names belong to one person, then the oldest deed from Day would convey the title,” there being no evidence to authorize the charge, if it were otherwise correct.</p> <p>3. Because the court erred in allowing Harris and Wheeler, witnesses for the defendant, to testify to the sayings of King as to how and under whom he held possession, giving therein the declarations of Edwards as to his agency, as detailed in the testimony.</p> <p>4. Because they have discovered since the trial, that they can prove by Harrison Dalton, that he moved King (about whom Harris and Wheeler testified) on said lot in 1846 or 1847; that Edwards objected to King’s going on said land and tried to get him off, which he finally succeeded in doing ; that Edwards told him several times that lie (Edwards) had no authority from Minis, or any one else, to rent or control said land, and that he was not agent of said Minis for that purpose.</p> <p>This last grouud was supported by the usual affidavits.</p> <p>The motion was overruled, and plaintiffs excepted.</p>

<p>1. The nephew of a county commissioner is not a competent juror, if the uncle has taken part officially in promoting the prosecution, by voting county funds to pay a reward for the prisoner’s apprehension, by aiding to employ counsel to prosecute, and by aiding in the preparation of the case, the indictment being a special presentment of the grand jury. The uncle is to be considered as a volunteer prosecutor, no law requiring him to perform that function as a county commissioner.</p> <p>2. That declarations offered in evidence as dying declarations were made under the belief that the wound was mortal and death impending, may be inferred from the nature of the wound, and other circumstances, though nothing direct was said respecting death or danger. The court must judge of the preliminary evidence, in the first instance, and deeming it prima facie sufficient, should admit the declarations to the jury, instructing the jury afterwards to pass finally for themselves on the question, whether or not the declarations were conscious utterances in the apprehension and immediate • prospect of death.</p> <p>3. The prisoner’s admission in open court, made as a part of his statement on the trial, that he was present at the homicide, is direct evidence that he was present, and the circumstance of his presence need not be otherwise established.</p> <p>4. Though to warrant a conviction for murder, the evidence must not leave the venue of the crime doubtful, the requisite certainty may be attained by circumstantial as well as by direct evidence. And such certainty is attained when the testimony shows that the mortal wound was given whilst the deceased was passing upon a wagon-road between'two points, some eight miles apart, both in the same county, and that he left the one point late in the afternoon and arrived at the other during the early part of the night; there being no testimony tending to show that the road along which he traveled crossed the county line, or that he left the county, entered another, received the wound in the latter, and then returned to the former.</p> <p>5. When two persons are charged in the same indictment with the offense of murder by shooting, (.both as principals in the first degree,) the conviction of one is no obstacle to a subsequent conviction of the other; nor does the guilt of one render the guilt of the other in equal degree impossible, though only a single shot was fired. If both were present in pursuance of a conspiracy to murder, or in the prosecution of a common felonious intent, and one of them shot in behalf of both, and with the sanction and in the immediate presence of his fellow, the shooting was not the act of one only, but the act of each.</p> <p>6. The evidence of the prisoner’s actual participation in the criminal transaction being wholly circumstantial, and the court having committed an error in pronouncing one of the jurors competent, and the prisoner being under sentence of death, a new trial is directed.</p>

Criminal law. Evidence. Threats. Witness. Experts. Charge of Court. New trial. Before Judge Crisp. Macon Superior Court. 'December Term, 1877. Everett was placed on trial for the murder of Antoinette Eelton, alleged to have been committed on August 25th, 1877. .He- pleaded not guilty. The evidence against him was purely circumstantial.

Negotiable instruments. Indorsement. Principal and security. Contribution. Evidence. Before Judge Rice. Gwinnett Superior Court. March Term, 1878. An execution in favor of the executors of William Maltbie, proceeding for the use of -Merit Camp, against the Gwinnett Manufacturing Company as principal, and Enoch Steadman, Merit Camp, and James P. Simmons as indorsers, was levied upon certain land as the property of the defendant Simmons.

Equity. Debtor and creditor. Husband and wife. Principal and agent. Deeds. Usury. Jury. Yerdict. Before A. 8. Giles, Esq., Judge fro hao vice. Houston Superior Court. November Term, 1877.

Claim. Judgment. lies Adjudicatei. Evidence. Before Judge Ojrisp. Lee Superior Court. March Term, 1879. ; Maxwell & Yason foreclosed a mortgage against Gilbert; the fi.fa. was levied, and Stokes claimed. The property was found subject. Afterwards, Pace, who was Stoke’s vendor, claimed. On the trial, the plaintiffs offered in evidence the record in the case in which Stokes was claimant; claimant objected, but it was admitted. The jury found the property subject.

<p>New trial. Before Judge Kiddoo. Muscogee Superior Court. November Term, 1877.</p> <p>Eeport unnecessary.</p>

Evidence. New trial. Before Judge Hillyer. Fulton Superior Court. October Term, 1877. McDaniel sued out an attachment against Pearson & Co. for the purchase money of eggs shipped by him to them at New York. On the trial, the condition of the eggs was a disputed question.

<p>Claim. Husband and wife. Before Judge Bice. Gwinnett Superior Court. March Term, 1878.</p> <p>Beported in the opinion.</p> <p>cited as follows : Sale of wife’s property void, Code, §1783; 54 Ga., 543; 57 II)., 207. Claimant not bound to show notice, 1 Chit. PL, 222, 223. Equitable interest of claimant, Code, §§2316, 3082, 3562; 30 Ga., 96; ITill on Trustees, 92; Code, §3194. Fonb. Eq., 340; Adam’s Eq , 151-2; 55 Ga., 445 ; Code, §3119 ; 2 Story’s Eq. Jur., §788-9 ; 54 Ga., 690 ; 48 II)., 559-60 ; 1 Bright on Hus. and W., 233-4.</p> <p>cited 56 Ga., 22; Code, §3586.</p>

<p>■ Practice in the Supreme Court. Bankrupt. Judgment. Amendment. Statute of Limitations. Illegality. Executions. Before Judge Crawford. Chattahoochee Superior Court. March Term, 1878.</p> <p>An execution in favor of King against Pollard was levied and illegality filed as set forth in the 5th head-note. When the issue thus formed came on for trial, plaintiff petitioned the court, in substance, as follows :</p> <p>At the March term, 1867, he commenced suit against defendant on a note for $220.00. At the following September term a verdict was rendered for the plaintiff. Within four days after the adjournment of said term, Mr. Raiford, of counsel for plaintiff, entered up a formal judgment, but, by inadvertence or neglect, failed to sign the same. This, judgment was never recorded. An execution was issued returnable to the March term, 1868, and levied on certain lands. A claim thereto was filed by John Pollard, the brother of defendant. Upon the trial of the claim the property was found subject. Petitioner, therefore, prays for leave to amend by having the judgment signed by his attorneys nunc jpro tunc, and that it may be recorded upon the minutes as entéred of record on September 30, 1867.</p> <p>To this application the following objections were filed :</p> <p>1. That no judgment was rendered in said case as alleged.</p> <p>2. That more than ten years have elapsed since the rendition of the verdict upon which it is now sought to enter judgment.</p> <p>3. Because defendant was discharged in bankruptcy on December 8, 1870.</p> <p>Evidence was introduced to show that the facts stated in the application were true.</p> <p>The court ordered that the plaintiff have leave to enter up judgment on the verdict rendered at the September term, 1867, now for then. To this defendant excepted.</p> <p>The affidavit of illegality was then overruled.</p> <p>Error is assigned upon the above exceptions.</p> <p>When this case was called, a motion to dismiss the writ of error was made because the bill of exceptions was not certified by the clerk. Counsel for plaintiff proposed to withdraw the paper, have the necessary certificate attached, under the act of February 26, 1877, and it returned before the call of the cases of the eiicuit to which it belonged was concluded. Upon intimation from the court that this would be permitted, the defect was waived.</p> <p>cited 57 Ga., 600; 5 lb., 437; Bankrupt Act of 1867, §32.</p> <p>cited 1 Ga., 463.</p>

Equity. Auditor. Evidence. Practice in the Supreme Court. Wills. Dower. Before Judge Kiddoo. Dougherty Superior Court. April Term, 1877. Held: issued from the decree rendered by Judge Yason, in March, 1868, in which she charged Peter McLaren and Mrs. McLaren with colluding and confederating together in the mismanagement of the estate of Pace, wasting it in various ways and using the moneys for their own purposes, and not paying the debts; and alleging that there- were large…

Administrators and executors. Compromise and settlement. Sales. Evidence. Before Judge Pottle. Hancock Superior Court. October Adjourned Term, 1877.

Statute of limitations. Minors. Practice in the Superior Court. Before Judge Crisp. ' Sumter Superior Court. April Adjourned Term, 1878. Reported in the opinion. argued that infants were as much within the operation of the act of March 16,1869, as other persons; 45 Ga., 478, and 57 lb., 459, not authority on question. See Code, §§1812, 1816, 1819 ; 44 Ga., 449.

Torts, Contracts. Compromise and settlement. Consideration. Evidence. Before Judge McCutchen. Whitfield Superior Court. April Term, 1878. Dodson & Payne brought suit in the justice court of the 1049th dist., G. M., on a note made by McCauley on March 24th, 1869, due by the 25th of the next ensuing December, for $75.00, payable to plaintiffs or bearer, “ for professional services rendered by them.”. Judgment was rendered for the plaintiff and defendant appealed.

Practice in the Supreme Court. Parties. Amendment. Administrators and executors. Distribution. Attorney and client. Fees. Before Judge MoCutci-ien. Whitfield County. At Chambers. January 10th, 1878. This case arose upon a bill-filed by Pruden as administrator of Haddock, against the creditors of the intestate to marshal the assets, and praying direction as to the payment of the debts. By agreement, the case was heard in vacation.

Trusts. Estates. Husband and wife. Wills. Before Judge Harden. City Court of Savannah. February Term, 1878. Walker brought complaint against Wetter as trustee for his children, for materials furnished to, and work done on, the trust property (real estate), in November, 1872, and in November and December, 1873. The bill amounted to $116.05, besides interest. The defendant pleaded the general issue, and specially that no such trust existed.

<p>Judgments. Misnomer. Machinist’s lieu. Verdict. Bankrupt. Liens. New trial. Practice in the Superior Court. Argument. Eees. Before Judge Crawford. Muscogee Superior Court. May Term, 1878.</p> <p>In May, 1872, several attachments and. an execution, based on the foreclosure of a machinist’s lien, were levied upon the property of the Empire Cotton Seed Huller and Oil Company, a foreign corporation. The levy was np>on personalty, of a perishable nature, all of which was sold, under order of the judge of the superior court, on June 14, 1872, producing the net sum of $5,125.00. Conflicting claims on this fund were presented, and it was, by order of court, June 22, 1872, deposited with John Ring, banker. King became an involuntary bankrupt. Blandford & Garrard, attorneys, in behalf of Fontaine, a judgment creditor of the Huller and Oil Company, whose judgment has since been transferred to them, and in behalf of Mary S. Smith, a creditor by distress warrant, petitioned, May, 1874, for the appointment of a receiver to collect from the estate of King the amount so deposited, and to bring it before the court. Coleman was appointed such receiver. Blandford & Garrard represented him in the bankrupt court. There was awarded to him a sum which, after deducting his charges, leaves in his hands $1,869.00 for distribution.</p> <p>In July, 1872, the Huller and Oil Company was adjudicated a bankrupt in the U. S. district court for the southern district of New York, and in the following September John London was appointed assignee.</p> <p>The following claims were presented as liens on said fund :</p> <p>1. Blandford & Garrard, attorneys, for professional services rendered in having the receiver appointed, and for services rendered for the receiver in bringing the fund into court, $300.00.</p> <p>2. The Columbus Iron Works Company, which alleges as follows : It is a machinist, and as such did, from November 4, 1871, to April 4,1872, furnish, and put up, and repair, for said Huller and Oil Company, certain machinery, to-wit: One steam engine, fixtures, shafting, etc.; did repair the oil presses, etc. For these services said company became indebted to it on May 4, 1872, $1,870.26. It recorded its lien upon the machinery and premises within three months from the time the work was completed. Within twelve months from the time said debt matured, an attachment was levied at its instance upon said machinery and fixtures ; the property was sold under order of the judge, and is represented by the fund now in court for distribution.</p> <p>3. "Distress warrant in favor of Mary S. Smith for rent, $550.00, which was levied upon a part of the property subsequently sold under order of the judge.</p> <p>John Loudon, as assignee in bankruptcy, claimed the entire fund, and filed, objections to every assertion of lien thereon except the third above set forth. He was successful as against all except the above three. As to them, the following verdict was returned :</p> <p>‘‘We, the jury, find in favor of Blandford & Garrard $200.00, the amount claimed by them. We further find for the Columbus Iron Works, $1,119.01, and for Mary S. Smith, $550.00.”</p> <p>Whereupon the court adjudged that the receiver first pay all the costs, and then the parties mentioned in the verdict in the order named. This judgment was subsequently changed by requiring that the cost» be paid by the parties in proportion to the amount recovered by each.</p> <p>Loudon, assignee, moved in arrest of judgment upon the following grounds:</p> <p>1. Because at the November term 1877, the Columbus Iron Works Company, certain judgment creditors, Blandford & Garrard, and Mary S. Smith, presented their claims of lien on this fund, to all of which movant objected except the last. Upon the trial of the issues thus formed, the whole fund was found subject to the lien of the Iron Works Company. To this finding all of the claimants submitted except movant and Mary S. Smith. They moved for anew trial, which being refused, they appealed to the supreme court. That tribunal held that the only necessary parties to said motion, the others not contesting the verdict, were the movants, the Iron Works Company, and the receiver. A new trial was ordered. (59 Get., 653.) Upon the new trial, Blandford & Garrard again claimed for fees, when the verdict and judgment were rendered as above stated.</p> <p>2. Because there is no such case shown by the records of this court as that of Blandford & Garrard, partners, etc., vs. Charles Coleman, receiver, Columbus Iron Works, Mary S. Smith, John Loudon, et. al. (This is the heading which precedes the judgment of the court.)</p> <p>3. Because the finding of the jury in favor of the Iron Works, even if based on a machinist’s lien for furnishing and repairing machinery to the amount of $1,119.01, does not authorize a judgment requiring the receiver to pay that amount out of the fund in his hands, until an execution shall first be ordered against the premises to which said machinery was attached.</p> <p>4. Because the fund was not subject to the amount found by the jury unless the verdict had gone further and declared that the Iron Works Company had a lien on all the property which produced the fund, or else stated wba.t portion of said fund was the proceeds of property upon which said company had a lien.</p> <p>5. Because the mere finding of $1,119.01 in favor of the Iron Works Company, without more, did not authorize a judgment requiring the receiver to pay out of a fund in his hands; nor did it authorize the court to postpone one creditor to another.</p> <p>6. Because as the verdict gives no preferences, neither can the judgment.</p> <p>7. Because the record discloses that the Iiuller and Oil Company was adjudicated a bankrupt in July, 1872, the receiver was appointed in May, 1874, and the services of Blandford & Garrard were rendered without notice to the assignee, and two years after the adjudication.</p> <p>8. Because the distress warrant in favor of Mary S. Smith was levied in part upon property upon which the Iron Works claimed no lien, and it is impossible to tell from the verdict what part of the property levied upon by the distress warrant was found to be subject to the lien of said Iron Works, and yet the judgment gives it its whole debt out of the fund, although a portion thereof must be the proceeds of property on which Mary S. Smith had a specific lien, and on which it had no lien.</p> <p>9. Because the fund arises from the sale of the whole property, and neither Mary S. Smith nor the Iron Works claimed any lien on a great and valuable part of the property, to the proceeds of which movant is entitled,</p> <p>10. Because the whole fund arises from the sale of personal property which was perishable, and the lien of the machinist only extends to such machinery as he delivers, which is attached to the realty, and to the realty itself, of which the machinery becomes a part.</p> <p>The motion in arrest was overruled, and movant excepted.</p> <p>He then moved for a new trial upon the following grounds:</p> <p>1. Because the court erred in ruling that the arguments should be made in the order in which the parties came into court and in which the evidence was introduced; that is, that Blandford & Garrard should open, counsel for other creditors follow, then counsel for movant, then counsel for said creditors in reply to movant, then Blandford & Garrard in conclusion.</p> <p>2. Because the court erred in entering the following judgment on the verdict. (Then follows the judgment as originally rendered, not as subsequently changed.)</p> <p>3. Because the verdict does not specify whether the jury found a lien in favor of the Iron Works Co. for construction of an engine, for repairs, or for what repairs.</p> <p>4. Because the court erred in charging as follows in reference to the claim of Blandford & Garrard: “ Whenever counsel represent a party in a court, and perform service for him, such counsel would be entitled to compensation for such service, if such party accepted the service. Blandford & Garrard claim that they brought this money into the hands of the receiver, and therefore are entitled to pay. If they have brought themselves within these rules of law, then they are entitled to such fee as they may have proven their services to have been worth.” It is insisted that this charge was calculated to mislead the jury.</p> <p>5. Because the court erred in postponing the lien of Mary S. Smith to the costs and the liens of Blandford & Garrard and the Columbus Iron Works.</p> <p>6. Because there was no evidence to show what part of the fund in the hands of the receiver was the proceeds of the property on which a lien attached for the sum found in favor of the Iron Works.</p> <p>7. Because the verdict was contrary to law and to evidence.</p> <p>8. Because the court erred in failing to state in its charge any right which, under any circumstances, movant might have to the fund.</p> <p>9. Because the court erred in its charge as a whole, and in various parts.</p> <p>In reference to the last ground, it is only necessary to state that the court charged, in substance, the principles of law, so far as applicable, enunciated by this court when the case was here before — 59 Ga., 653.</p> <p>The evidence on the claim of Blandford- & Garrard showed that they had Coleman appointed receiver, proved his claim' as receiver against the estate of King, bankrupt, and after some litigation, collected his pro rata of the fund in the bankrupt court; that their services were worth $200.00.</p> <p>The question as to their claim, upon the evidence, arose from the fact that in rendering these professional services their motive was to get the fund into the hands of the receiver in order that they might collect from it a judgment against the Huller and Oil Company held by them They induced the receiver to consent to act, promised compensation, etc. But this judgment could not be enforced, and hence their professional services would have been lost unless they were entitled to their fee on account of having brought the money into court for distribution.</p> <p>The claim of the Iron Works was based upon a draft for $850.00, and an open account for $1,020.20, commencing November 4th, 1871, and ending April 4th, 1872. The draft was given in part payment for a steam engine built by the Iron Works. The price was $1-,350.00. The Iluller and Oil Company gave two drafts for this amount, dated January 1st, 1872, the first for $850.00, due at four months, the second for $500.00, due at six months. The last draft was paid by turning over to the Iron Works a smaller engine. The first is still due and unpaid. The larger engine was “set up” the last of December, 1871, and was in position ready for use sometime between January 19th and February 1st following. “ Setting up ”. an engine is putting it up on wood-work, and then building the brick-work, attaching the chimney, and making the proper connection of steam and water. It was stipulated that the engine was to be put in position ready for running, though the expense of this was to be paid for in addition to the $1,350.00 for the engine. The charges for this work were entered in the open account, making the engine in position, ready for work, with all necessary attachments, cost about $1,500.00. The remaining items of the account are for such articles as an iron works company would naturally furnish to a huller and oil company, and for repairs on the same. The claim of lien of the Iron Works was recorded on April 5th, 1872, and covered about one-fourth in value of the property sold by the shei'iff on June 14th.</p> <p>No question was made on the amount allowed to Mary S. King.</p> <p>The motion was overruled, and movant excepted. Error is assigned upon the refusal to arrest the judgment, and the refusal to grant a new trial.</p> <p>Motion for new trial not maintainable after motion in arrest, 2 Tidd’s Prac., 913 ; 23 Ga., 496. Order of argument, 56 Ga., 152; Code, §3718.</p>

<p>On the 14th September, 1877, Meyerhardt applied again to the commissioners of the county, reciting the first order and his compliance therewith, and that Allen & Jones, after notice, refused to put up the gates, and again prayed that the obstructions be removed. The facts alleged were traversed by Allen & Jones, and it was denied that the road had been put in good order, but insisted that a new road in some material points had been laid out and worked by Meyerhardt. On this point issue was joined, and the road commissioners of the county found against Meyerhardt, and ordered the road closed. From this judgment of the commissioners, Meyerhardt appealed by certiorari to the superior court on the 11th of December, 1877, when that court sustained the certiora/ri, and passed the following order: “Upon hearing the certiora/ri, it is ordered and adjudged that the cw'lioraA'i be sustained, the judgment closing the road be set aside, and the commissioners direct the way to be opened as a private way, with the right of defendants to erect gates where the fences now are. If the road is not on the old road-bed, that Meyerhardt work it on the old road-bed within ninety days from the date of their order following this judgment, as per terms of the order of June 4th, 1877, — the said Jones & Allen to point out and stake the old roadbed for Meyerhardt or his agent, and if they refuse to do so, that the road remain open as now worked.” To this judgment exception is taken, and the question is the legality thereof.</p>

<p>At the February term, 1878, of Cherokee superior court the board of education of the county preferred charges before the grand jury against Hudson, the county school .commissioner, and asked for his removal from office. He filed an elaborate reply. The grand jury recommended his removal, and the judge of the superior court so ordered. To this judgment and the proceedings leading thereto, Hudson excepted.</p>

<p>cited for reversal: 55 Ga., 191; 58 lb., 546; 38 lb., 117; 1 Bish. O. P., 378, 379, 677, 833; 2 Green Or. Law Rep., 91, 250, 251, 748; 1 Ohit. O. L., 643; Hopkins P. L., 5L8; 28 Ga., 367; 3 lb., 417; 31 lb., 206; 32 lb., 251; Code, various sections.</p> <p>cited for affirmance : Code §4369; 51 Ga., 144; 25 lb., 396.</p>

This was an action of debt by Colquitt, governor, for use of Lackey, on a sheriff’s bond executed by Ivey and his securities.

<p>Where a bill praying for an injunction is based upon trespass to real estate in cutting down and sawing up the timber thereon, and it is alleged that the chief value of the land consists in the timber, it being quite poor and of little value for agriculture, and that the complainant apprehended that the defendant would fell and destroy all the timber, and leave the tops and limbs unsuited for lumber to rot on the ground and generate malaria and produce sickness in defendant’s family, he living on adjoining lands and cultivating them, having bought this lot for its timber; but where complainant failed to allege insolvency in the defendant, and while he set up title alleged to be perfect in himself, yet disclosed the fact that the defendant also claimed under title, though charged to be fraudulent, and did not charge that his own was older than defendant’s, and where the bill disclosed the fact that defendant had .erected a saw-mill on the land, and was regularly and openly sawing the timber, but failed to allege when this was done, whether before or after complainant’s purchase, which purchase was only a short while, some two years, before the bill was brought for enjoining the trespass:</p>

<p>3. That the prisoner said to some one “lam going to carry some ladies to your house,” was not relevant testimony.</p> <p>4. The charge of the court on the subject of explaining the prisoner’s possession of the stolen goods, was not error, on the facts contained in the record.</p>

<p>Held 1. That the settlement was good against the attorney unless he gave notice of fees due him to the defendant in fi. fa.</p>

<p>Where W. purchased a homestead which was set apart for a widow and minors out of the lands of a deceased father and husband, and sold to P., and where W’s title from the widow made no reference to homestead, and where some of the heirs at law of the deceased husband and father were of full age when the homestead was set apart, and W. recovering judgment and issuing execution thereon for the purchase money levied upon the land, and E. filed a hill to restrain its sale until the equities of all parties could he settled, alleging W’s insolvency, and the cloud upon the title, and the fact that he had already paid the purchase money in part and was in danger of losing what he had already paid, and where the answer disputes the insolvency but shows no available property in W.:</p>

Judgments. Trusts. Money rule. Lien. Equity. Before Judge Hall. Monroe Superior Court. February Term, 1878. The sheriff of Monroe county sold certain land under two fi.fas., one in favor of Sharp, guardian, the other in favor of Willingham & Dunn, both against Stone, trustee. Yarious other fi. fas. claimed the proceeds. A rule was brought by Sharp, guardian, and the other claimants became parties. There were three classes of contestants for the fund. (1.) Fi.fas. for taxes.

Pleadings. Practice in the Superior Court. Amendment. Continuance. New trial. Insurance. Before Judge Hillyer. Fulton Superior Court. October Term, 1877. At the trial of this case, Mrs. Mary Stanton (who became Mrs. Mary Sparks by a second marriage) was plaintiff, and the Insurance Company defendant.

<p>Western and Atlantic Railroad. Actions. Contracts. Before Judge PIillyer. Fulton Superior Court. March Term, 1878.</p> <p>Reported in the decision.</p> <p>cited Code, §971. Presumption that officer did his duty, 1 Kelly, 3-5 ; 1 Gr. Ev., §40 ; 12 Wheat., 69-70 ; 1 Kelly, 279 ; 6 Ga., 188 ; 32 II., 114; 39 II., 22 45 II., 414.</p> <p>cited as follows : W. & A. R. R. no corporation when contract made, legislation as to it, Cobb’s Dig., 401, 402, 404, 100-114; 92 D. S. R., 665 ; 37 Oa., 240 ; 23 II., 436 ; 19 II., 543 ; Code, §§968-986, 1002. No authority in superintendent to make this contract, 56 Oa., 577 ; 2 Hill (N. Y.), 174; 8 Paige, 526 ; 7 Wallace, 676-677 ; 12 Wheaton, 559 ; 23 La. An., 267 ; 15 Peters, 377 ; 46 Oa., 350 ; V) lb., 418; 9 Cush., 343 ; 8 Wend., 496 ; 23 Pick., 302 ; 8 Met., 456 ; 3 Head, 619, 229 ; 4 Sneed, 53-55 ; 1 lb., 69 ; 12 Ala., 252; 1 Taunt., 346; 7 Mees, ¿a Weis., 595; 1 Dan. on Neg. Ins., 262-271, 373, and cases cited ; 2 Ala., 718 ; 60 xOa., 277; 31 lb., 371. Strict construction, Byles on Bills, 22 (marg.); Story on Ag., §§62-67, 307 a; 1 Dan. on Neg. In., 440; 1 N. IT., 270; 4 Wheaton, 636 ; 62 Me., 338 ; 26 lb., 306; 20 Md., 1; 2 Nott & ITun., 144; 10 Wis., 518; 12 Iowa, 142: 1 Nott & ITun., 270; 52 Mo., 578; 5 Nott & Hun., 71. Innocent holder, 1 Dan. on Neg. In., 377; 2 Haw., 441; 12 Kan., 186 ; 14 Wall., 282; 1 lb., 83, 175; 5 lb., 772; 35 N. Y., 505; 52 Oa., 211; 18 Grat., 750 ; 8 Paige, CL, 750, 526. Ultra Vires, 101 Mass., 57 ; 22 N. Y., 290 ; 97 Mass., 494; 10 Wall., 682; 2 Hill, 174; Story on Ag., §307 a\ 55 Oa., 672; Field on Corp., §384 ; 7 Man. Grang. & Scott, 101; 9 Crunch, 213; Code, §1982; 37 Oa., 24:0; 34 lb., 543. No answer to say there is now no superintendent, acts 1871-2, p. 79 ; 59 Oa., 446.</p>

Administrators and executors. Notice. Courts. Jurisdiction. Principal and agent. Equity. Before Judge Htllyee. Fulton Superior Court. March Term, 1878. It is only necessary to add to the report contained in the opinion the following: The sixth ground of motion for new trial (mentioned in the fifth division) was that the verdict was contrary to the charge of the court.

<p>Practice in the Supreme Court. August Term, 1878.</p> <p>Report unnecessary.</p>

Ejectment. Title. Equity. Deeds. Witness. Non-suit. Principal and surety. . Contraéis. New trial. Before Judge IIillyer. Clayton Superior Court. March Term, 1878. Mansfield et al. brought ejectment (in the short or statutory form) against Phipps et al. Mrs. Phipps filed her bill to enjoin the ejectment suit and to enforce a specific performance of an agreement on the part of defendants to cancel the deed on which their suit was founded. The two cases were tried together.

Contracts. Principal and agent. Charge of Court. Before Judge Hillyer. Fulton Superior Court. March Term, 18Y8. Lawshe sued Irby, alleging that Irby employed him to sell the “Glade Mine,” in Hall county, Ga., in May, 1876, agreeing to allow him as compensation, all he received over $40,000.00, and afterwards, in July, the contract was changed so as to allow him all he could get over $30,000.00.

<p>jThis case was argued at the last term and the decision reserved. Jackson, Justice, being disqualified, Judge McCutchen, of the Cherokee circuit, was designated by the governor to preside in his place.]</p> <p>1. Where by order of the chancellor a reference of matters in an equity cause had been -made to a master in equity, and the master having failed to act, the chancellor, at a subsequent term, passed an order withdrawing the reference from the master, and referring the same j matters to a different person named in the oi'der and styled “ Master pro hac vice,” this latter order- is not void. The chancellor may, j in the exercise of a sound discretion, change a reference from one j master to another, or from a master to an auditor. J</p> <p>2. Where the chancellor passing such interlocutory order, did not pre- , side on the final trial, and no objection to the passage of the order j appears to have been made at the time — no exception thereto ap- ¡ pearing in the record — this court cannot review such action of the ' chancellor.</p> <p>3. Where the order of reference to an auditor requires that exceptions to his report shall be filed within twenty days after notice of the filing of the report in the clerk’s office, a party duly notified cannot file exceptions after the time limited without leave of the court.</p> <p>4.. If a party has been prevented by good cause from filing his exceptions within the time limited, he should apply to the court without unreasonable delay for an extension of time to file his exceptions, and upon his failure to do so during four successive terms of the court thereafter, without showing any excuse for this delay, this court will not interfere with the discretion of the chancellor in refusing the application, and in striking the exceptions on the ground that they had been filed without leave of the court after the time limited had expired — especially where no very satisfactory excuse is shown why the exceptions wex’e not filed within the time limited.</p> <p>5. Where an auditor’s report Fas been received and allowed by the court, and the report is not excepted to, there is no issue for the jury to try as to any matter covered by the report, and the chancellor will pronounce judgment thereon without the intervention of a jury. Article YI, section XVIII, paragraph I, of the constitution, which declares that “the right of trial by juxy, except where it is othei'wise provided in this constitution, shall remain inviolate,” is not in conflict with the principle above enunciated.</p> <p>6 Where the statute of limitations is pleaded and insisted on at the trial, and the facts on which it is based, together with the action of the auditor in relation thereto, appear in the report, the court must, in its final decree, pass upon the question of law thus raised, though no written exceptions to the auditor’s report he on file, the ruling of the court on the statute of limitations being excepted to.</p> <p>7. Four years after the accrual of the cause of action is the period of limitation within which, in general; a suit upon an account must be brought by a county to recover money illegally drawn from its treasury on false accounts. Yet where a sheriff — while in office as such — draws divers sums of money, at different times, from the treasurer of the county on false and fraudulent accounts and vouchers for insolvent costs claimed as due him, and for official services claimed to have been rendered — some of the payments having been made to him within less than,and others more than, four years before suit was commenced, the statute of limitations does 'not commence to run in favor of the sheriff during his continuance in office.</p>

<p>An execution was issued from the 733d district of Campbell county. A constable in and for the 1134th district levied the execution on a cow in the 1204th district, where defendant in fi.fa., the owner of the cow, resided, and advertised and sold the cow there. At the time there was a lawful constable in office in the 1204th district, and not absent therefrom. Trover was brought by defendant in execution to recover the cow from the purchaser at the constable’s sale:</p> <p>Held, that the sale was illegal, the purchaser obtained no title, and the defendant in fi.fa. could recover in trover.</p>

<p>Where prope1 ty was levied on and a claim interposed covering one-half of certain lots, without stating which half, the claim might have been demurrable, but a verdict in favor of claimant should not be set aside for uncertainty.</p>

<p>Contracts. Sales. New trial. Before Judge Hillyer. Fulton Superior Court. September Term, 1878.</p> <p>Pool et al. sued Porter & Butler for breach of warranty. The declaration alleged, in brief, as follows : Plaintiffs were interested with one Griffin in the ownership of a waterwheel. Griffin had bought it from defendants, who warranted it to be suited for the purpose for which it was bought! It was defective. Plaintiffs purposed buying out the interest of Griffin. Before purchasing, plaintiffs went to defendants, informed them of the defect and the intended purchase, and asked if the warranty of the wheel would continue. Defendants agreed that it should do so; said they would repair the wheel; if it still would not work properly, they would replace it with a new one, and if that did not work properly, they would refund the purchase money ($350.00). Relying on these promises, plaintiffs bought the wheel, and gave an order to defendant for certain castings'to be used in connection with it. Defendants have failed and refused to comply with their promises, or make good their warranty, to the damage of plaintiffs, etc.</p> <p>Defendants moved to dismiss this declaration because it contained no cause of action. The motion was overruled. They pleaded the general issue. . ’</p> <p>The evidence was conflicting as to the main facts of the case (warranty, breach and damage). Defendants showed that plaintiffs had never paid for the castings which they had made; that they had been sued for the amount, and a verdict had been rendered in their favor.</p> <p>The jury found for plaintiffs $364.50. Defendants moved for a new trial, on the following, among other grounds:</p> <p>1. Because the court overruled defendants’ motion to dismiss the action.</p> <p>2. Because the court charged that the measure of damages would be the difference in value between the wheel as warranted and as sold.</p> <p>3. Because the verdict was contrary to law and evidence.</p> <p>The motion was overruled, and defendants excepted.</p> <p>cited, on measure of damages, 1 Ga., 592; 23 lb., 17; 30 lb., 421, 948; 46 lb., 261; 26 lb., 704 ; 56 lb., 90; 60 lb., 149. Warranty not assignable, 27 Ga., 457-464; 4 lb., 593; 1 lb., 75. No consideration, Benj. on Sales, 492.</p> <p>cited, on right of action, Code, §2244; 10 Mass., 316; 5 Peters, 597; 2 Barb., 349.</p>

<p>1. The plea of the general issue should not he stricken on demurrer.</p> <p>2. Contracts made in Georgia to he performed in New York are governed by the law.'of the latter state. Hence, in a suit on drafts indorsed in blank, payable in New York, parol evidence was not admissible to explain the indorsement, such being the law of that state ; and pleas setting up a parol agreement or understanding as to the indorsement were properly stricken.</p>

<p>Criminal law. Guardian and ward. Practice in the Superior Court. Before Judge Bartlett. Greene Superior Court. September Term, 1878.</p> <p>Reported in the opinion.</p> <p>cited Code, §§4467, 2926, 2927.</p> <p>cited Code, §§3577, 3721, 3719, 3587; acts 1874, p. 28; 59 Ga., 185,</p>

<p>1. That an accusation in a city court charged the defendant with an assault, without specifying any act or acts constituting the same, is not good ground of arresting judgment.</p> <p>2. That the charge was of an assault shows jurisdiction in a court competent to try crimes less than felonies.</p>

<p>Where the policy contained a stipulation, that unless the cash premiums were paid quarterly on the day named, the policy should be null and void; and during four years the party insured had paid sixteen premiums, some before and some after the days named in the policy, but none on those days ; and the insured was sick of the disease of which she died for the last twelve months preceding her death, of which sickness the company was ignorant; and paid the last premium on the 17th of May, 1875, the same having been due by the terms of the policy on the 3rd of May, and died on the 20th of July following ; and where the last'seven premiums had been paid subsequently to the days when due by the policy, varying from fourteen to three days subsequently thereto ; and the company, through the home agent and secretary, added to the usual words in countersigning the last receipt, the words, “and policy-holder in good health,” said words having been inserted in no prior receipt, but the money had been received without comment theretofore, and the last premium was retained by the company until the death of the insured, and is still retained :</p> <p>Meld, that the conduct of the company in its habit of receiving premiums at other times than on the days fixed in the policy, operated as a waiver of time as of the essence of this contract with the insured ; and that payment of the last premium within a reasonable time, according to custom, after due by the policy, was equivalent to payment on the day due by the policy, and that the policy is valid and binding, notwithstanding the sickness of the insured at the date of the last payment, and the insertion of the words in respect to her health by the home agent and secretary in the last receipt.</p>

<p>Wills. Estates. Evidence. Before Judge Hillyer. Fulton Superior Court. October Term, 1878.</p> <p>In addition to the report contained in the decision, it is only necessary to state that two of the grounds of plaintiffs’ motion for new trial were as follows:</p> <p>(1) . Because the court erred in rejecting evidence of Hulsey, a witness for plaintiffs, tending to show that the third item of the will of Collier conveyed a life estate with remainder over. [The immediate fact to which the evidence was directed, and from which it was sought to interpret the third item of the will, was a system of equal distri ■ bution on the part of the testator.]</p> <p>(2) . Because the court erred in charging as set out in the decision.</p> <p>The motion was overruled, and plaintiffs excepted.</p> <p>cited as follows : On construction of wills, 2 Ga., 307-312 8 Ik, 34 ; 40 Ik, 18 ; 12 Ik, 361; 15 Ik, 141; 58 Ik, 33-34. Parol evidence to explain ambiguity, 8 Ga., 34; 33 lb., supplement, 79; 2 Redfield on Wills, 764-765, On “children”, 12 Ga,, 360; 29 Ik, 403, 545; 35 Ik, 40; 36 Ik, 275, 977; 28 Ik, 270 ; 6 Coke’s R., 17 ; 3 Ga., 564; 4 Ik, 383-384 ; 17 Ik, 84-85 ; 30 Ik, 16S, 641 ; 32 Ik, 361; 36 Ik, 274-275 ; 30 Ik, 638; 15 Ik, 145 : 16 Ik, 555 ; 17 Ik, 283 ; 28 Ik, 270 ; 31 Ik, 734-5.</p> <p>cited as follows: Construction of instruments, Code, §2754. On ambiguities, Code §§2757, 2457, 3801; 3 Kelly, 556 ; 8 Ga., 36 ; 47 Ik, 463 ; 30 Ik, 167 ; 4 Ik, 461; Code, §2456. On “children”, 4 Ga.,4§\\ 15 75., 202 ; 36 Ik, 276 ; 43 Ik, 327; 4 Paige, Ch., 47-53; 2 McCord, Ch., 440, 256 ; 2 Yesey, 690; 1 Hill, Ch., 322; 1 Yesey, 405 ; 11 Ik, 238 ; 15 Ik, 125 ; 10 Ik, 152 ; 1 Atk., 509; 2 Ik, 329 ; 6 Coke, 17; 7 Ga., 76; 8 Ik, 146; 15 Ik, 509; 145 ; 20 Ik, 699 ; 21 lb., 377-378 ; 24 Ik, 424 ; 28 75., 378, 541; 4 Ik, 61; Code, §2250; 33 Ga., 72; 29 75., 403 ; 35 lb., 40. Estate vested at death of testator, 15 Ga., 205 ; 43 75., 327 ; 36 Ik, 454.</p>

<p>Res.gestee. Evidence. Dower. Election. Before Judge Underwood. Fannin Superior Court. May Adjourned Term, 1878.</p> <p>Reported in the opinion.</p>

Trover. Title. Evidence. Practice in the Superior Court. New trial. Before Judge Hall. Clayton Superior Court. September Term, 1878. James brought trover against Sims for a mule. It appeared from the evidence that plaintiff had sold the mule to Dye and others, and- taken their notes for the purchase money, in which it was stipulated that the title to the mule should remain in the plaintiff until it was paid for.

<p>Bankruptcy. Mortgage. Continuance. Practice in the Superior Court. Before Judge Crawford.. Harris Superior Court. October Term, 1878.</p> <p>Reported in the opinion.</p> <p>cited 61 Ga., 58 ; Bump on Bankruptcy, 72-73, 129 ; 49 Ga., 361.</p>

Equity. Wills. Estates. Before Judge McCutchen Murray Superior Court. August Term, 1878. Lewis et al., children of Theophilus Lewis by a second marriage, filed their bill against John O. Lewis, the only surviving son by his first marriage, to compel him to share with them a legacy received under the second item of their grand-father’s will. The defendant demurred to the bill for the want of equity; the demurrer was overruled, and he excepted pendente lite.

<p>Bail. Sheriff. Deputy. Before Judge Underwood. Gilmer Superior Court. October Term, 1878.</p> <p>Reported iu the Opinion.</p>

<p>Homestead. Jurisdiction. United States Courts. Before’ Judge Grice. Bibb Superior Court. October Term, 1878;.</p> <p>Reported in the decision.</p> <p>cited 61 Ga., 223.</p>

<p>1. The credibility of witnesses and the weighing of conflicting testimony are questions peculiarly within the province of the jury, and where the presiding judge is satisfied with the verdict thereon, this court will not interfere except in case of abuse of discretion by him.</p> <p>2. Where bonds with coupons for the interest are converted, a verdict for the value of the bonds and of the mature coupons at the time of the demand, with interest on such aggregate value from the date of the demand, is not excessive.</p> <p>3. Where bonds are hypothecated to secure a loan to one Arm, and such debt is settled, and the firm being changed a new debt is created, notice of the title of the true owner of the bonds before such new. debt or loan is created, will operate to prevent the holder of the bonds as collateral security from acquiring title against such true owner; and such notice may he proven by circumstances as well as by direct proof.</p> <p>4. Possession alone of a security negotiable by delivery before due, is presumptive evidence of title thereto; but when such security is proven to have been stolen or otherwise appropriated in fraud of the rights of the owner, then the onus is upon the possessor to show that he took it bona fide and for value; and upon his showing that, then the owner must show mala fides — that is, that the possessor has notice, actual or constructive, of the title of the true owner.</p> <p>5. That perjury should not be imputed, if avoidable, and that a witness is to he believed unless impeached in some of the modes known to the law, is good law as far as it goes; and if a party desires that the difEerent modes of impeachment should be specified by the court, he should request that it be done.</p> <p>6. When bonds are taken as collateral security for a debt, when the debt is paid for which they were hypothecated, the holder of them as collateral cannot retain them after such payment; and a charge to that effect is not erroneous in the case of a long account current between the parties of moneys borrowed and paid, running through several years, by a firm which changed its members, and where there was evidence going to show that the debt for which the bonds were originally hypothecated was paid, and new debts made by a changed firm, and circumstances tending to show notice to the holder of the true owner of the bonds between the payment of the old and the creation of the new debt by a changed firm.</p> <p>1. There being no material error in the rulings of the court on the trial, and no abuse of discretion in overruling the motion for a new trial on the ground that the verdict is decidedly and strongly against the weight of evidence, the judgment must be affirmed.</p>

<p>Where final judgment was rendered in favor of a plaintiff' and defendant excepted, the plaintiff could not also bring the case to this court by a distinct and separate bill of exceptions, filed after the overruling of the defendant’s motion for a new trial, to rulings of the court made pending the trial. If plaintiff was dissatisfied with such rulings, exceptions pendente lite should have been filed.</p>

Claim. Executions. Practice in the Superior Court. Evidence. Practice in the Supreme Court. Before Judge LIillyer. Pulton Superior Court. September Term, 1878. Clark, as the indorser who had paid off an execution against J. T. Lewis, principal, and T. M. Clark, indorser, in favor of Chandler, caused the same to be levied on certain land as belonging to tiie principal. Bosworth claimed. The case was submitted to the court without a jury, by agreement.

<p>Statute of limitations. Administrators and executors. Before Judge Crisp. Schley Superior Court. October Term, 1878.</p> <p>Reported in the decision.</p> <p>cited Code, §3132; 12 Qa., 594.</p>

Municipal corporations. Officers. Damages. Evidence. Practice in the Supreme Court. Before Judge Hillyer. Fulton Superior Court. April Term, 1878. Harris brought case for false imprisonment against the City of Atlanta, one of its policemen, and its two guardhouse keepers. On the trial, the evidence for plaintiff was, in brief, as follows : 1.

<p>Where three witnesses swore positively that defendant was present and committed the offense, newly discovered evidence of two witnesses that he had left previously to the time alleged and had not returned, would not probably change the result, and therefore does not necessitate a new trial.</p>

Bankruptcy. Promissory notes. Statute of frauds. Contracts. Before Judge Hood. Terrell Superior Court. November Term, 1878. Ross brought assumpsit against Jordan, alleging that the latter had made a promissory note to him which was due and unpaid ; that defendant had, since the giving of such note, been through bankruptcy and been discharged ; but since his discharge, he had made a payment on the note and promised to pay the balance, which he had failed to do.

Criminal law. Yenue. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1878. The only evidence as to venue was that defendant lived with Turner in Oglethorpe county, that on the road between two points in that county he admitted the forgery, and that “ he said he wrote it going on to the depot.” [Whether the saying or the writing is located c' on the road to the depot,” is doubtful.] Eor the other facts, see the decision. cited as follows: On venue, 2 Bish. Or.

<p>1. Where, under section 3541 of the Code, the garnishment is dissolved by a claimant’s giving bond and security in terms of said section, and claiming a certain fund which arose from the sale of land and is in the hands of the garnishee, and where the claim rests upon the ground that the land was not the property of defendant in^. fa., but of the claimant as the homestead of himself and family, and therefore the money arising from the sale of the land and in the garnishee’s hands is not the money of defendant in execution, but the money of claimant as head of the family :</p> <p>Reid, that a claim affidavit by the claimant in which he sets out that he is the head of a family, and that the money is not the money of defendant in fi. fa., but is money arising from the sale of land which had' been set apart as a homestead of the family of claimant and is not subject to the individual debts of said claimant, is sufficient without further allegation either of the character or names of the members of the family —the homestead having been set apart in the land to the claimant as the head of his family.</p> <p>2. The homestead papers should have been admitted in evidence to the jury, the same having been granted by the ordinary in the year 1868, and under the constitution and act then of force and referred to therein.</p>

<p>The dismissal of an action of ejectment because of the failure of the plaintiffs to answer interrogatories filed by defendants, is within the discretion of the court below, which will not be controlled un. less abused.</p>

Evidence. Practice in the Superior Court. Yerdict. Before Judge Hall. Henry Superior Court. October Term, 1813.

Equity. Injunction. Interest and usury. Corporations. Before Judge Simmons. At Chambers. Bibb county. February 22, 18T9.

<p>Certiorari. Jurisdiction. Liens. Laws. Before Judge Harris. Wayne Superior Court. September Term, 1878.</p> <p>Glover foreclosed a laborer’s lien against Colquitt; fi. fa. issued, and was levied on a saw-mill. Dexter, who had bought the mill from Colquitt, filed a counter-affidavit, and issue was thus formed. The affidavit of foreclosure alleged that Colquitt, as owner of the mill, was “ indebted to deponent in the sum of $50.00 for work and labor done by him for the said W. W. Colquitt at and about said steam saw-mill, in the capacity of inspector of lumber at said steam saw-mill, for and during the month of February 1878, at the price of $50.00; but if did not affirmatively appear that the contract of hire had been completed. The counter-affidavit, among other things, set up want of jurisdiction in the justice who took the affidavit and issued execution thereon, to perform such acts.</p> <p>The justice found for plaintiff. Dexter carried the case ■ to the superior court by eertíorari. Plaintiff moved to dismiss the oertiorari because the amount involved, principal and interest, was more than $50.00 ; the motion was overruled. The court then overruled the oertiorari. Defendant excepted; plaintiff also joined in the bill of exceptions because of the refusal to dismiss the oertiorari.</p> <p>cited, on jurisdiction, acts 1868, p. 135 ; acts 1873, pp. 12, 43 ; Code, §5056, 5066. Contract must be completed, 60 Ga., 439.</p> <p>cited as follows: On motion to dismiss, Code, §4157 ; 53 Ga., 568 ; 58 lb., 77 ; Code, §§2054, 2055,1976; acts 1877, pp. 83-84. On jurisdiction of justice, Code, §1974,1975, 1984; acts 1877, pp. 83, 84.</p>

<p>Where the evidence as to a material fact in a criminal case was conflicting, it was error for the court to charge that “ a wilful and intentional introduction of a falsehood into a defense would tend to strengthen a hypothesis of guilt, should such hypothesis exist in the case, springing out of other parts of the testimony.” Such a charge did not submit the evidence for the defense and that for the state upon equal terms.</p>

<p>1. When the verdict of the jury is written on the wrong declaration and read in court, it is competent for the court to direct that the same be transferred to the proper declaration and signed thereon by the foreman, the jury being present in court.</p> <p>2. A letter of defendant containing internal evidence that it refers to the notes sued on, is admissible in evidence, though the notes be not accurately described by amounts or dates or consideration therein— • especially where the defendant is a witness on the stand and testifies that he wrote the letter, and does not state in his evidence for himself that it had reference to a different matter than the notes.</p> <p>3. There being ample evidence to sustain the verdict, the motion for a new trial was properly overruled.</p>

Jurisdiction. Courts. Roads and bridges. Before Judge Gibson. Richmond Superior Court. October Term, 1878.

Contracts. Pleadings. Evidence. New trial. Before •Judge Tompkins. McIntosh Superior Court. April Term, 1878. Wambaeker & Weil sued Schmidt on an open account including a variety of articles, cash, household necessaries, ■etc., leaving, after deducting credits, a balance of $1,036.42. Defendant pleaded the general issue and set-off.

Municipal corporations. Levy and sale. Garnishments. Debtor and creditor. Before Judge Hillyer. Clayton County. At Chambers. Held: committees appointed, etc., etc. It was finally understood that if all the tax was paid the debts could be discharged, or at least much reduced, and the policy turned over to some proper person to be collected and the proceeds applied to rebuilding the school, the trustees of the high school being suggested for the purpose; but this…

New trial. Before Judge Harden. City Court of Savannah. July Term, 1878. In addition to the report contained in the opinion, it is only necessary to add the following : Eerrill sued the Association in attachment for $200.00 for breach of a contract for his services as agent.

Evidence. lies adjudicate. Equity. Estates. Before-Judge Hillyee. Eulton Superior Court. April Term, 1878.. Mrs. Anna Rhuman filed her bill against Muller, Breitenbucher and others, to recover certain realty in the city of' Atlanta.

<p>'1. Where the evidence was that blood was traced to defendant’s house, and found in a pool covered up in his yard, and the hair of a hog was found in a pot where water was heated apparently, and also on the hearth of defendant’s house, covered up in the ashes and partly consumed; and all this was discovered the day following the night in which a stolen hog was missed out of a pen, and no truthful, satisfactory and consistent explanation was made of these circumstances, in the judgment of the jury and of the presiding judge:</p> <p>.Held, that this court will not control the discretion of the presiding judge in overruling the motion for a new trial, the evidence unexplained being sufficient to convict the defendant.</p> <p>' 3. Where the court is requested to give in charge a particular decision of this court, it is not the duty of the judge to read the entire case to the jury; it is enough that the principles of the decision are fully explained to the jury in the general charge, and such parts are read as bear upon the points at issue, the substance of the entire case having been given in the general charge.</p>

Railroads. Negligence. Damages. Evidence. Practice in the Supreme Court. Before Judge Bartlett. Greene Superior Court. September Term, 1878. To the report contained in the decision, it is only necessary to add, that two of the grounds of the motion for new trial were as follows : 1.

<p>Administrators and executors. Title. New trial. Before Judge Underwood. Lumpkin Superior Court. September Term, 1878.</p> <p>Reported in the decision.</p> <p>cited, on private sale, Code, §§2567, 2569; 40 Ga., 363, 370; 50 II., 553; 58 II., 581.</p> <p>cited 1 Ga., 324; 58 lb., 581.</p>

<p>Gertiorcm. Practice in the Superior Court, Justice Courts. Jurisdiction. Constitutional law. Waiver. Tort. Actions. Before Judge McCutchen. Forsyth Superior Court. August Term, 1878.</p> <p>Reported in the opinion.</p> <p>cited as follows r On jurisdiction', 39 Ga., 107 : Code, §3401. Waivei; of tort’ 1 Hilliard on Contracts, 75 ; 2 Gr. onEv., §120 ; 7 Ga., 191; 38 lb., 207, 220 ; 57 lb., 218. On the pleadings, Code, §§4067, 4139, 3332; 21 Ga., 546, 548; Code, §§218, 4284-</p>

<p>passenger who purchased a through ticket from Savannah, Georgia to Jacksonville, Florida, of the agent of the Atlantic and Gulf Kail road, and had his trunk checked accordingly, could recover of such road for its loss, allhough it showed that there were three connecting roads between the two places mentioned, that it was the first, and that it had safely delivered the trunk to the second.</p>

Garnishment. Judgment. Practice in the Superior Court. Before Judge Harden. City Court of Savannah. July Term, 1878. The facts of this case are set out in the head-note and opinion. Branch & Cooper were plaintiffs, Cabaniss defendant, and Lawton garnishee. Judgment was rendered against Lawton; he moved to set it aside; the motion was overruled, and he excepted.

<p>Husband and wife. Homestead. Before Judge Hood.. Terrell Superior Court. November Adjourned Term, 1878-</p> <p>Reported in the decision.</p> <p>cited Code, §§2010, 5135, 1803, 2018, 1785 ; 26 Ga., 380.</p>

Homestead. Evidence. Yerdict. Before Judge Tompkins. Bulloch Superior Court. March Term, 1878. Mrs. Driggers and her children filed their bill against Brown.

<p>It is error for the court simultaneously to try two separate cases before-separate juries; but objection to such a practice should be made at the time, otherwise this court will not reverse on that ground.</p>

Practice in the Superior Court. New trial. Before Judge Grice. Bibb Superior Court. October Term, 1878. Craig brought case for injuries to his person against the Southwestern Railroad, and recovered judgment. A motion was made for a new trial, which was refused, and a writ of •error taken. The Cential Railroad leased the Southwestern Railroad, and was really the principal party in interest, though a distinct corporation and not a party on the record.

<p>Practice in the Superior Court. New trial. Before-Judge Grice. Crawford Superior Court. September Term, 1878.</p> <p>For the facts see the opinion.</p> <p>cited on continuance, Code, §3522; 44 Oa., 449;</p>

<p>Charge of Court. Before Judge Clark. City Court of Atlanta. June Term, 1878.</p> <p>Eeported in the decision.</p> <p>cited (on intimation in charge of court), Code, §3284: 39 Ga., 597; 30 II., 324.</p> <p>cited 60 Ga., 264.</p>

<p>Jurors. Laws. Constitutional law. Practice in the Superior Court. Before Judge Tompkins. Bulloch Superior Court. March Term, 1878.</p> <p>Eeported iu the decision.</p> <p>cited Code, §3909 ; const. 1877, par. 2, sec. 18.</p> <p>cited Code, §§3907, 3909 ; 42 0a., 9.</p>

<p>1. Notice to the defendant is not necessary in a proceeding to issue an alias fi. fa. upon loss of the original; and though the defendant be notified, the establishing of the alias fi. fa. will not preclude him from showing on an issue of illegality that the judgment has been paid ofiE, and was paid off before the alias was issued. The judgment is the debt of record; the fi. fa., whether original or alias, is merely the process to enforce this debt of record. If the judgment has been paid, the process is functus officio.</p> <p>2. The evidence is clear that one of the two fi. fas. — that for $15.00 had been satisfied — -and the certíora/H should have been sustained as to that, at least.</p>

Jurors. New trial. Before Judge Hall. Newton Superior Court. September Term, 1878. Smith sued Lovejoy on a note. The jury found for the plaintiff. Defendant moved for a new trial, among other grounds, because the plaintiff held a conversation with two of the jurors in the case, and detailed to them his side of the case, pending its progress — which fact defendant did not know until afterwards. Both parties presented affidavits in regard to this ground.

Mortgage. Homestead. Equity. Injunction. Husband and wife. Before Judge Lawson. ■ Greene County. At Chambers. March 15, 1879. Mrs. Johnson filed her bill against Poullain et al. The principal facts set up were as follows : Her husband refusing, she applied for and obtained a.homestead in a house and lot belonging to him.

<p>The act of 1809 provides that “ Whenever the existing or future laws of any other state of the United States shall require of insurance companies incorporated by this state, and having agencies in snch other state, or of the agents thereof, any deposit of securities in such state for the protection of policy-holders, or otherwise, or any payment for taxes, penalties, certificates of authority, license fees, or otherwise, greater than the amounts required for such purposes from similar companies of other states, by the then existing laws of this state, then, and in every such case, all companies of states establishing, or having heretofore established, an agency or agencies in this state, shall be, and are hereby, required to make the same deposit for a like purpose with the comptroller-general of this state, and to pay to said comptroller-general for taxes, fines, penalties, certificates of authority, license fees, and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such state upon companies of this'state and agents thereof.”</p> <p>Held, that this act has no connection with the general tax laws of the state, but simply imposes upon foreign companies as a condition upon which they may do business here, the same burdens in the way of license taxes, etc., as the stales of their incorporation may have imposed upon Georgia companies as a condition of their doing business there. Thus construed, the act is a valid, constitutional law, and has not been repealed by the general tax acts passed since.</p>

<p>Where suit was brought ou a bond against a principal and two sureties, and a demurrer to the declaration was filed by one of the sure" ties, which was overruled, and an amendment offered by plaintiff allowed, this was not such a final adjudication as could be brought to this court by bill of exceptions.. The proper remedy would have been by exceptions pendente lite.</p>

New trial. Before Judge Bottle. Wilkes Superior Court. November Adjourned Term, 1877. Dillard et al., as heirs at law of Yiolet B. Ellington, filed their bill against Ellington, her administrator, for account and settlement. The case made by the pleadings and evidence is fully reported in 57 Ga., 567. A new trial was there granted. Since the case was returned to the superior court, complainants added the following exceptions to the report- of the master in chancery : 12.

<p>One from whose hands property of an estate has been wrongfully taken, may bring trover for its recovery against the tortious holder, although there has been no administration.</p>

Criminal law. Practice in the Superior Court. City Courts. Constitutional law. Witness. Evidence. Before Judge Clark. City Court of Atlanta. June Term, 1878. Kneeland, Cody and Bronk wTere respectively tried for keeping a faro table. They demanded jury trials. The usual jury in the city court was empaneled, viz: twelve jurors, from whom the state and defendant struck until five were left as a traverse jury.

<p>The admission by defendant in his testimony, that he bought of plaintiffs the articles set forth in the account sued on, the price being attached to each article, establishes prima facie the correctness of the account. If the amount sued for is too large by reason of payments made, the burden of proving the same is on the defendant.</p>

Ejectment. Pleadings. Infancy. Evidence. Administrators and executors. Trusts. New trial. Before Judge Hillvee. DeKalb Superior Court. September Term, 1878. Morgan brought complaint for land against Marshall. The last deed in his chain of title was from Jno. N. Pate to him. S. J. Marshall and two minors named Buse were made defendants on their own motion, and a guardian ad litem appointed for the latter.

<p>In a trial for fornication and adulter}r, for a witness to state that he knows defendant is a married man by reputation, and that he has a family of children, without more on that point, is not sufficient to support a verdict of guilty.</p>

Trover. Title. Evidence. Husband and wife. Presumptions. New trial. Before Judge Harden. City Court of Savannah. November Term, 1878. Cassidy, as administrator of Mary E. Shaffer, brought bail trover against Clark for certain described personalty. Defendant maintained that the deceased was his wife; that she died intestate and without debts, in 1877, leaving him sole heir; and that he therefore had title to the property.

Husband and wife. Actions. Before Judge Tompkins. Chatham Superior Court.' October Term, 1878. . Cassidy, administrator of Mary E. Shaffer, proceeded by possessory warrant to evict Clark, as a tenant by sufferance, írom a certain described lot. Defendant filed a counter-•affidavit. The facts sufficiently appear from the head-note. ■On the trial the jury found for the plaintiff. Defendant moved for a new trial.

<p>■ Contracts.. Equity. Before Judge Grice. Bibb Superior Court. April Adjourned Term, 1878.</p> <p>Reported in the decision.</p> <p>cited 2 Story’s Eq., 1020, §§1026, 1030; Mylne'&K, 417; 9 Ves., 117; 5 Wheaton, 284; Code, §3100 ; 15 Ga., 466-; 1 Kelly, 404,. 405; Code, §2138; 38 Ga., 402; Story on B., 286, 288,; 6 Ga., 628; 17 lb., 177; 1 Story’s Eq., 64(g); 3 Atk, 687, 534; Code, §3122; 46 Ga.;450 ; 11 lb., 159, 172 ; 30 lb., 191, 202 ; 16 lb., 49 ; 42 lb., 506 ; 28 lb., 74.</p> <p>cited Code, §2138 ; . 3 Heisk, 362; 5 Sneed, 88 ;' 4 lb., 465 ; 25 Miss., 58 ; 8 B. Monroe, 435, 437; 3 Penn. St., 234; 31 Vt., 501; Story’s Eq. Jur., (5th Ed.), §§1020 and notes, 114, 120, and notes, ■137, 138; 20 Ga., 242; 12 Peters, 55, 56; m Ga., 500; Code, §§1954, 1961, 2690, 3083, 3121.</p>

<p>Statute of limitations. Promissory notes. Before JudgePottle. Hart Superior Court. September Term, 1878.</p> <p>Reported in the opinion..</p> <p>cited acts-1869, pp. 133-134; 34 Ga., 246; 47 lb., 340, 342; 3 Gill & John., 394; 1 Peters, 360; 3 lb., 270; 5 lb., 407;. 8 Cranch, 84, 98 ; 2 Wheaton, 25; 46 Ga., 126.</p>

<p>Roads and bridges. Certiorari. Courts. County matters. Before Judge Buchanan. Douglas Superior Court: July Adjourued Term, 1878.</p> <p>Leathers filed a petition before the county commissioners to cause Furr to remove obstructions from a private way claimed by petitioner. The prayer was granted. Furr carried the case to the superior court by certiorari. Leathers moved to dismiss on the ground that certiorari would not lie directly from the decision of the county commissioners, but a bill of exceptions should have been filed; the motion was overruled. The certiorari was sustained, and Leathers excepted.</p> <p>cited Code, §§2235, 5012, 4050-4052, 730-738.</p> <p>cited as follows: On certiorari, §§739, 4052. On private ways, Code, §§720-727, 2235, 5012 ; 41 Ga., 30; 61 II., 28.</p>

Municipal corporations. Powers. Taxe. Onus prolandi. Constitutional law. Before Judge Buchanan-Douglas Superior Court. July Adjourned Term, 1879. Johns brought suit against the town of Douglasville to recover $225.00 with interest, alleging that he had paid that amount for license to retail liquor in the town, and that the latter had no authority to exact it. Defendant pleaded the general issue.

Husband and wife. Title. Jurisdiction. Estates. Judgments. lies adjudícala. Before Judge Gibson. Richmond Superior Court. April Term, 1878. . Reported in the opinion. cited as follows : Assent of executor inured in favor ofall complainants, Code, §2270; 50 Ga., 362; foreign will title in Georgia, 31 Ga., 593.

<p>Criminal law. Indictment. Corporations. Stockholder. Before Judge Underwood. Lumpkin Superior Court. September Term, 1878.</p> <p>Reported in the opinion.</p> <p>cited’ Code, §§742, 753, 4611, 4683 ; acts of 1872, p. 317.</p>

<p>1. A levy “upon the life interest of Mrs. Ann E. Walton in 600 acres of land, more or less, lying in the county of Morgan, adjoining land of J. A. Broughton, J. J. Clack, and others,” was not a sufficient description, where there was a body of land from which, by decree, she had been allowed 600 acres.</p> <p>3. Where arbitrators in a pending case, set apart certain land to a widow and family in lieu-of dower, homestead, etc., the part so assigned did not, without more, become a homestead estate.</p>

<p>Criminal law. Contracts. Sabbath. Bonds. Bail. Non-suit. Practice in the Superior Court'. Commitment. Waiver. Before Judge Pottle. Hart Superior Court. September Term, 1878.</p> <p>Reported, in the opinion.</p>

Deeds. Estates. Easement. Levy and sale. Prescription. Stockholders. Trusts. Notice. Before Judge Ojrawford. Muscogee Superior Court. May Term, 1878. Held: none choosing to act under the corporate powers given under the charter, if the property itself were of such a nature as that each owner could hold it independently and adversely as against the rest, then they might, after the lapse of sufficient time, each get a good title individually.” 4.

Railroads. ' Corporations. Charters. Laws. Taxes. Before Judge Grice. Fulton Superior Court. April Term, 1878. In addition to the report contained in tbe decision, it is only necessary to add that the fi.fas. were issued and levied under the act of Í 874 (p. 107), and that the grounds of illegality set up by defendant were as follows: 1.

<p>Constitutional law. Laws. Railroad. Charters. Tax. Before Judge Grice. Fulton Superior Court. April Term, 1878.</p> <p>The comptroller-general issned two fi. fas. against the Augusta and Savannah Raihoad for taxes for 1876 and 1877, and penalties for default. Defendant filed affidavits of illegality, alleging that “ by the original act incorporating the Augusta and Waynesboro Railroad (afterwards changed to name of defendant), of 31st December, 1838, it is provided, in section 13, that the said railroad and its property shall not be subject to be taxed higher than one-half of one per eentum on its annual income;” that the present ad valorem, tax is illegal, and unconstitutional, as impairing the obligations of its charter contract; that defendant’s road was leased to the Central Railroad, and the latter had returned and paid all taxes that could be legally required of it under defendant’s charter; that this question had been adjudicated in favor of defendant (54 Ga., 501), etc.</p> <p>The cases were submitted to the court without a jury, on the following agreement:</p> <p>“ In the above entitled cases, it is admitted and agreed, that the charter of 1838 of the Augusta and Waynesboro Railroad is the charter of the Augusta and Savannah Railroad, with only a change of name.</p> <p>“ That the tax of one-half of one per cent, on its net annual income has been regularly paid to the state, in good faith, on returns made by its lessee, the Central Railroad Company.</p> <p>“ That the lease of this entire railroad and property to the Central Railroad, for the annual rental of $73,000, not to be increased or diminished by the amount of business done, or expenses incurred, was made in June, 1862, under the act of January 22, 1852, for the term of the charter of the Augusta and Savannah Railroad.</p> <p>“ That in the 13th section of the charter, as derived from the authorized printed pamphlet of the acts of 1838, these words occur, to-wit: ‘ Higher than one-half of one per centum on its annual income,’ and in the enrolled act, the word ‘one’ is left out before ‘per centum] and the original enrolled act may be exhibited by either party to this court, and to the supreme court.</p> <p>“That the judgment of the superior court of Fulton county, in a former case between these parties, on a tax fi. fa., was affirmed by the supreme court, and the records of these courts may be used as evidence by either party in these cases.</p> <p>“ That all acts oUthe legislature of Georgia, which may be read or referred to by either party, will be considered in evidence, without being copied in these proceedings, or for the supreme court, should these cases go up.</p> <p>“ That these two cases be tried together, and decided as one, by the presiding judge, without a jury, as to law and facts, with the right of either party to bill of exceptions and writ of error to the supreme court.”</p> <p>The presiding judge held that the objection made to the act of incorporation for vagueness was not good ; that the rental of defendant’s road ($73,000) was both its net and gross income, and, it being admitted that tax had been paid on the net income, that was all that could be required. He therefore sustained the illegalities.</p> <p>At the close of the evidence, counsel for the state moved to dismiss the affidavits of illegality on certain grounds, and, upon the sustaining of the illegalities, excepted, and based their assignments of error on the grounds of the motion, which were as follows:</p> <p>1. That defendant had not made a return of its gross income or receipts, nor paid the tax upon the same, as required by the act of March 30, 1875, as a condition precedent to the right to contest the payment of the tax upon its property.</p> <p>2. That section 13 of the act incorporating said defendant is too vague, ambiguous and uncertain to constitute a contract between it and the state in relation to taxation.</p> <p>3. That said section contains matter different from what is expressed in the title, and is unconstitutional and void.</p> <p>4. That if said defendant ever had any valid claim to a limited rate of taxation, it lost the same by its lease to the Central Railroad.</p>

Constitutional law. Railroads. Corporations. Tax. Before Judge Lester. Fulton Superior Court. October Term, 1877. Goldsmith, comptroller-general, issued an execution against the Rome Railroad for $564.75, as its tax for the year 1875, assessed against it upon a return of property made by the president.

Constitutional law. Corporations. Tax. Illegality. Injunction. Before Judge Gjrice. Fulton Superior Court. April Term, 1878. Goldsmith, comptroller-general, issued three executions against the Georgia Railroad for tax claimed to be due for the years 1875, 1876 and 1877. These executions differed from each other only in dates and amounts.

Tax. Railroads. Jurisdiction.- Laws. Before Judge Grice. Fulton. Superior Court. April Term, 1S78.

Constitutional law. Tax. Laws. Jurisdiction. Before Judge Grice. Fulton Superior Court. April Term, 1878. The comptroller general issued two fi. fas. for tax for 1876 and 1877, and penalties for default, against the Central Railroad.

Insurance. Contracts. -Title. Lien. Parties. Yer-dict. Before Judge Grice. Bibb Superior Court. April Term, 1878.

Contracts. New trial. Evidence. Mechanic’s lien. Charge of Court. Before Judge Grice. Bibb Superior Court. April Term, 1878. Wilder & Son brought two suits against Porter, as the installments matured, for balance due for the erection of a livery stable, and also for the enforcement of their mechanic’s lien as against the stable and the land upon which it was built. The actions were consolidated and tried together.

Statute of limitations. Prescription. Title. Deeds. Presumption. New trial. Before Judge Underwood.' Polk Superior Court. February Term, 1877. In November, 1858, Hutchings, administrator of Barry, recovered judgment against Johns. Execution issued, and in November, 1878, was levied on certain land which was claimed by Patterson.

<p>1. Map by the county surveyor not evidence, under the circumstances, as an official document or as an admission by district road commissioners. It might go to the jury as a mere diagram to illustrate other testimony. District road commissioners have no power to bind by their admissions either the public or a land-owner.</p> <p>2. Official transactions of county commissioners are presumed to be recorded, and cannot be proved by parol without accounting for the absence of the better evidence. A survey ordered by the board to find the route of an old road is not, simply because made in pursuance of the order, binding in its results. Nor will any presumption arise that the results are correct.</p> <p>3. Recorded proceedings of district road commissioners showing efforts to ascertain and fix the route of an old road, are no evidence on the question of where the true route is. These commissioners have only executive functions in locating roads, and their mere deliberative acts, not followed by any actual opening or occupation of the route, are without force.</p> <p>4. When one distinct issue is carved out of a case by consent and reduced to writing, and the trial is to be had solely upon it, the charge of the court should not go beyond it, and enter into other issues, treating the whole original case as open to the jury.</p> <p>■5. In tracing boundaries, courses and distances yield to permanent physical monuments, natural or artificial.</p> <p>6. Changes in the route of a public road, or substantial changes even in the marginal line, when that line is the boundary of a tract of land, will work no change in the boundary. The road may shift to other ground, but the boundary will remain where it was.</p> <p>7. Facts conceded may be characterized a^ conceded facts in charging the jury; and if the charge so denominates them, such will be considered tlieir true character, unless the contrary affirmatively appears.</p> <p>8. The scope of the controversy and the limits of the agreed issue compared, and a new trial ordered.</p>

License. Tax, Municipal Corporations. Before Judge Gibson. McDuffie Superior Court. September Term, 1878. Norris sued the commissioners of Thomson to recover $220.00 alleged to have been illegally paid as a license tax upon him as a retailer of spirituous liquors for 1876 and 1877. Defendants pleaded the general issue, and also that the tax could not be recovered, having been voluntarily paid.

Judgments. Amendment. Practice in the Superior Court. ' Before Judge Geioe. Fulton Superior Court. April Term, 1878. The comptroller-general issued execution against the Georgia Railroad for $23,802.07, as its tax for the year 1874. A levy was made and affidavit of illegality filed.

Charge of Court. Contracts. Equity. Before Judge Hansell. Berrien Superior Court. September Term, 1878. John Lindsey filed his bill against his son, Benj. F. Lindsey, alleging, in brief, as follows: In 1860 he was stricken with paralysis. It caused him much suffering, made his mind give way, and induced a fear that his property would all be lost because of his inability to attend to his business.

Levy and sale. Sheriff. Estates. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1878. Willingham filed his petition against Young, sheriff, making, in substance, the following case : On October 3,1876, a tract of land containing one hundred and fifty acres was sold at sheriff’s sale, and was purchased by petitioner and one McEae for $63.00.

<p>Husband and wife. Contracts. Before Judge Grice. Bibb Superior Court. April Term, 1878.</p> <p>Reported in the opinion.</p> <p>cited Code, §§1758, 1754, 1757; Sehouler on Horn. Rel., 77 ; 39 Ga., 41.</p> <p>cited 39 Ga., 41; acts 1872, p. 39; Code, §1774; 54 Ga., 500; Code, §4286.</p>

Criminal law. Rape. Before Judge Hillyer. Fulton Superior Court. April Term, 1878. Kelsey was placed upon trial for the offense of rape alleged to have been committed upon the person of Alice Kennedy. He pleaded not guilty. The evidence showed that intercourse was had between the parties, the points of contest being whether the defendant used force, or whether the transaction was with the consent of Miss Kennedy.

Crimina] law. New trial. Before Judge Bartlett. Jones Superior Court. October Term, 1878. Joiner was indicted for the rape of Emma Anderson, a girl eleven years and three months old. The evidence for the'state consisted in the testimony of the girl and her mother.

Homestead. Income. Charge of Court. New trial. Before Judge Tompkins. Pierce Superior Court. March Term, 1878. This case arose upon the levy of an execution in favor of Weslow & Co. against Wade, as surviving partner of S. H. W ade & Co., upon one hundred and fifty sheep, and a claim filed thereto by Wade upon the ground that such sheep constituted a part of his exemption under the homestead law. The jury found the property subject.

<p>Railroads. Negligence. Damages. New trial. Before Judge Bartlett. Greene Superior Court. September Term, 1878.</p> <p>Crawford brought case against the railroad for damages resulting to him from an accident on its passenger train. On the question of negligence the evidence was somewhat conflicting. Under the charge of the court the jury found for defendant. Plaintiff moved for a new trial which was refused, and he excepted. For the other facts see the opinion.</p> <p>cited as follows : Extraordinary diligence required, 56 Ga., 322 ; 58 II)., 461. Yer-dict not required, 48 Ga., 339.</p> <p>cited (on negligence) Code, §3033 ; 56 Ga., 322; 30 lb., 22 ; 31 lb., 330; 58 lb., 79; 60 75., 319.</p>

Injunction. Homestead. Administrators and executors. Debtor and creditor. Equity. Before Judge Hillyer. Fulton Superior Court. October Term, 1878. Susan Long filed her bill against Mapp, as administrator of her deceased husband, Frank Long, making, in brief, this case: In January, 1878, her said husband was adjudged a lunatic and sent to the asylum, where he died May 28, 1878.

<p>1. It must appear affirmatively that evidence was objected to in the court below, before this court will grant anew trial on account of its admission.</p> <p>2. The evidence being conflicting, this court will not control the discretion of the court below in refusing a new trial.</p>

<p>[Tliis ease was argued at tile last term, and the decision reserved.]</p> <p>1. In an action of debt, commenced in 1875, on the bond of an administrator with, the will annexed, appointed in 1860, brought by the ordinary for the use of a pecuniary legatee, the declaration alleged that the legatee was an infant until the 35th of September, 1871, that he had a guardian who was appointed in i860, at the same time the administrator with the will annexed was appointed, that the guardian was ever ready and willing to receive the legacy, that the said administrator refused, failed and neglected to pay it, and that he had had sufficient time to have wound up the testator’s estate and to have paid over the legacy by the 3d of April, 1861:</p> <p>Held, that under these allegations the action was barred by the limitation act of 1869.</p> <p>3. A further cause of action alleged in the same declaration was, that a like legacy was bequeathed by the same will to a brother of the usee of the plaintiff, who was also a ward of the same guardian, that the sai’d ward died during his minority, leaving the usee of the plaintiff his sole heir at law, that the guardian was ever ready and willing to receive said legacy, but the administrator refused, failed and neglected to pay it, that the administrator had had sufficient time to have wound up the testator’s estate and to have paid over the legacy by the 3d of April, 1861, a nd that the guardian, since the death of his ward, has expressed unwillingness to collect in the assets, and absolutely refuses to collect this legacy. The guardian, who bylaw (Code, §1851,) is charged with administering his deceased ward's estate, and consequently takes the legal title to the personalty, was not made a party:</p> <p>Held, that as to this cause of action the declaration was properly dismissed on demurrer.</p>

New trial. Yerdict. Before Judge Tompkins. Chat-ham Superior Court. May Term, 1868, To the report contained in the decision it is only necessary to add, that one of the grounds of the motion for new-trial was newly discovered evidence, consisting of entries on plaintiffs’ books not previously discovered.

<p>Criminal law. County Courts. Affidavit and warrant. Indictment. New trial. Certiorari. Before Judge Pottle. Hancock County. At Chambers. November 16, 1878.</p> <p>Preston and Irwin Dickson presented their petition for certiorari making, in substance, the following case :</p> <p>On October 29, 1878, they were arraigned before the county court of Hancock county, on the charge of simple larceny. The affidavit upon which the warrant was based, was made by T. J. Warthen before the county judge, and simply alleged that “ to the best of deponent’s knowledge and belief, Sarah Dickson, Preston Dickson and Irwin Dickson, did commit the offense of simple larceny in said county, on or about the 6th day of October, 1878, and deponent makes this affidavit that a warrant may issue for her arrest.” The warrant, issued by the county judge, directed the proper officer “ to arrest the body of Sarah Dickson, Preston Dickson and Irwin Dickson, charged by T. J. Warthen with the offense of simple larceny, in said county, on or about the 6th day of October, 1878, against the laws of this state, and to bring him before me, or some other judicial officer, etc.” The petitioners waived indictment and trial by jury. The written accusation commenced as follows:</p> <p>“ Georgia — Hancock County.</p> <p>“The state of Georgia charges and accuses Sarah Dickson, Preston Dickson and Irwin Dickson, all persons of color, of said county, with the offense of simple larceny, etc.”</p> <p>The balance of the accusation, in proper language, charged the three defendants with the larceny in said county, on or about the sixth of October, 1878, of 1,500 pounds of seed cotton, of the value of $35.00, the property of David Dickson. It referred to both the affidavit and warrant as the basis of the accusation.</p> <p>At the conclusion of the testimony for the prosecution the petitioners moved that the warrant and accusation be quashed upon the following grounds:</p> <p>1. Because the accusation does not follow the warrant upon which it is founded.</p> <p>2. Because it does not follow the affidavit and warrant.</p> <p>3. Because neither the affidavit nor warrant sets forth the ownership of the property alleged to have been stolen, nor the person from whose possesssion it was taken.</p> <p>4. Because the warrant and affidavit fail to disclose the nature and character of the offense with which the defendants are charged, to-wit: whether a felony or a misdemeanor.</p> <p>5. Because the affidavit prays for the arrest of “ her,” and the warrant directs the arresting officer to bring “ him ” before a judicial officer for investigation, hence defendants say that no valid accusation can stand based upon a warrant so defective.</p> <p>6. Because the accusation alleges, that “the state of Georgia charges” the accused, instead of the prosecutor, “in the name and behalf of the citizens of Georgia.”</p> <p>The motion was overruled.</p> <p>Evidence for the defense was introduced. The court found the petitioners guilty. They moved in arrest of judgment upon the same grounds as are stated in the motion to quash. The court overruled the motion, and sentenced them to the chain-gang for twelve months.</p> <p>Petitioners ask the writ of certiorari because the court erred in overruling each of the motions above stated, and because the finding of the court was without evidence to sustain it.</p> <p>It is only necessary to state that there was abundant evidence to support the finding.</p> <p>Judge Pottle refused to sanction the petition, and petitioners excepted.</p> <p>cited 55 Ga., 380; 58 II., 397; Code, §§299, 4714.</p> <p>cited, by brief, Code, §§4715, 4716, 4629, 4639, 3587, etseq.; 22 Ga., 75, 499.</p>

New trial. Before Judge Harris. Glynn Superior Court. May Adjourned Term, 1878. Two cases were tried together. Holmes et al. were plaintiffs in fi.fa.\ Parker was defendant; Thurber & Co. et al. claimed money raised under plaintiffs’ fi. fas. These fi.fas. were founded on judgments in attachment in the usual form.

Guardian and ward. Judicial sale. Mortgage. Yendor and purchaser. Evidence. Yerdict. Before Judge Crisp. Sumter Superior Court. October Term, 1878. Turpin, as guardian, instituted proceedings to foreclose a mortgage made by Byrd to secure the payment of two promissory notes, one for $200.00, and the other for $100.00.

Contracts. Tender. Before Judge MoOutciien. Bar-tow Superior Court. January Term, 1878. In 1861, Chisolm recovered judgment against Field and Tumlin; the fi. fa. was transferred to Solomon. It was levied on property of Tumlin; he filed an affidavit of illegality. By agreement the proceedings were withdrawn ; Tumlin took the fi. fa. so as to make the money out of Field, and gave his written obligation to pay the amount in ninety days.

Habeas corpus. Judgments. Trover. Bail. Before Judge Pate. Laurens Superior Court. October Term, 1878.

<p>Foreign judgments. Evidence. Before Judge Harris. Wayne Superior Court. September Term, 1878.</p> <p>To the report contained in the decision it is only neces-. sary to add the following: Grimes sued Buck, administrator, et al., on a judgment from the superior court of Pitt county, North Carolina. He offered in evidence the record of the suit and judgment in that court. The cerlificate of the presiding judge was as follows:</p> <p>“ State oe North Carolina — Pitt county.</p> <p>I, Riley H. Cameron, judge of the superior court of the state afore-. said, holding the courts of the second judicial district of the state aforesaid, do hereby certify that Henry Sheppard, whose name is signed to the foregoing certificate, is now, and was at the time of signing the same, clerk of said court, and that his attestation is in due form.”</p> <p>The court admitted the exemplification, and this is the main ground of error alleged.</p> <p>cited 2 Minn., 313, 319 ; 12 Bush., (Ky.), 321: 41 Ga., 409; 1 N. II., 242; 1 Gr. on Ev., 504, 514, 540, 546; Freeman on Judgments, §413; 17 Ind., 423 ; Story on Conflict of Laws, §§539, 546, 547, 584, 586 ; 30 Conn., 190 ; 44 N. Y., 27.</p> <p>cited (on question decided), Code, §§672, 673 ; 54 Ga., 486; 47 Ik, 92; 50 Ik, 208;. 57 Ik, 153; 59 Ik, 506, 608; acts of N. C., 1868-9, p. 206; acts 1873 p. 147; Code Civil Procedure, p. 5.</p>

<p>Contracts. Nonsuit. Evidence. Before Judge Crisp. Sumter Superior Court. October -Term, 1878.</p> <p>Report unnecessary.</p>

Appeals. Jurisdiction. Justice Courts. Before Judge Buchanan. Fayette Superior Court. November Term, 1878. Executions in favor of Dykes against W. Martin, J. Martin and W. J. Gay, security, were levied on certain realty as the property of Gay. Woolsey et al. claimed. The case was submitted to tlie court without a jury. He found in favor of claimants, and plaintiff excepted.

* Contracts. Gifts. Account. Payment. Statute of limitations. • Before Judge Bartlett. Pike Superior Court. April Adjourned Term, 1878.

<p>A note given for guano contained the following provision : “It is expressly understood and covenanted, that said Edward Snowden sells said commercial manure as to its quality and effect on crops, on the analysis of the inspector whose brand is on every sack, said inspector is hereby constituted and recognized as my agent, and I agree to be hound by his inspection as made and indicated by his brand on each and every sack ”:</p> <p>Held, that in a suit thereon the defendant was not estopped from proving by parol that the s,ack was not branded, and that the fertilizer was worthless.</p>

<p>Practice in the Supreme Court. Sales. Warranty. Evidence. Before Judge Crawford. Talbot Superior Court. September Adjourned Term, 1878.</p> <p>Young brought complaint against Allen, in the statutory form, on two notes, payable to Pacific Guano Company, or bearer, one dated March 31,- 1877, for $70.00, the other dated May 16, 1877, for $35.00, both due on October 15, after date, given for “Pacific Guano.” The notes contained this stipulation : “It is further agreed that I purchase the fertilizer for which this writing is given in settlement, entirely upon the basis of the analytical standard guaranteed by the company, and will in no event hold it responsible beyond such standard, nor in anywise for practical results.”</p> <p>The defendant pleaded the general issue, and failure of consideration, in this that the analytical standard guaranteed by the Pacific Guano Company, constituted a good and valuable fertilizer, whilst the article sold to him did not come up to such standard, failed to contain the same ingredients, and in the like quantities and proportions as in such standard, and was defective and worthless as a fertilizer.</p> <p>Tie also pleaded partial failure of consideration in this, that Jenkins, the agent selling the fertilizer, falsely represented it to be equal to and like the said standard, whilst it was only one-fifth the value of that.</p> <p>The plaintiff introduced the notes sued on, and closed.</p> <p>The defendant introduced the admission of plaintiff that the two notes were given to him for “ Pacific Guano;” that the Pacific Guano Company had issued its guaranteed analytical analysis, and warranted the article to come up to that standard ; that that analysis constituted a good fertilizer.</p> <p>The defendant introduced James Allen, who testified that he was present when Jenkins, the agent of the Guano Company, sold to defendant the fertilizer for which the notes sued on were given.</p> <p>Defendant asked the witness what representations or warranty Jenkins made about the guano ? To this question objection was made, which was sustained by the court, and defendant excepted.</p> <p>Defendant asked if Jenkins warranted or represented the guano to be good ? A similar objection to this question was sustained, and defendant excepted. •</p> <p>Defendant then asked if witness knew the crop on which defendant placed the guano, and the effect it had on its production ? A similar objection to this question was sustained, and defendant again excepted.</p> <p>The jury found for the plaintiff. Error was assigned upon each of the above grounds of exception.</p> <p>When this case was called, counsel for defendant in error moved to dismiss it because the notes sued on and introduced in evidence were not embodied in the bill of exceptions. It will be observed that no motion for a new trial was made. Hence there could be no brief of evidence in the record. The bill of exceptions recited that “ the plaintiff read in evidence the two promissory notes sued on, copies of each of which are attached to the plaintiff’s declaration.” These copies, thus attached, were in the record.</p> <p>The court overruled the motion.</p> <p>cited 49 Qa., 620; 53 II)., 625.</p>

<p>1. Where pending suit against defendants in. the city court, summons of garnishment was sued out and served on the garnishees, who answered that they were indebted $180.00; and subsequently thereto suit was brought in the justice court against the same defendants and the same parties were served with summons of garnishment in said justice court and judgment was first had against the defendants in the justice court, and in answer to said summons of garnishment, the garnishees admitted the same indebtedness in that court, and under its order paid the judgments there rendered ; and when judgment was subsequently rendered in the city court the plaintiffs there moved to enter up judgment against the garnishees, and they amended their answer, setting up the fact of their payment of the older judgments in the justice court, under an order of that court:</p> <p>Held, that the garnishees were protected in their payment of the senior justice court judgments to the extent of those payments.</p> <p>2. Where prior to the service of the summons of garnishment on the garnishees in the justice court, an order was served on them from the defendants in execution to pay the plaintiffs in the city court their claim of $154.00 out of the $180.00 which the garnishees owed said defendants, and it was claimed that, on that ground and for that reason, the plaintiffs in the city court were entitled to judgment against said garnishees:</p> <p>Held, that as creditors of the defendants in fi. fa, seeking to have judgment against the garnishees on the ground of the indebtedness by the garnishees to those defendants, the said plaintiffs in the city court were not entitled to such judgment, whatever might be their legal rights on a suit for said fund or a claim entered therefor upon, the title acquired by said order.</p>

Heeds. Mortgage. Judgments. Registry. Levy and sale. Before Judge Hall. Newton Superior Court. March Term, 1878. Phinizy & Co., filed their bill against Clark, who resisted by answer, and at the trial the evidence made, in brief, the following case: On April 17, 1874, Henderson being indebted to complainants for borrowed money, to secure the debt, conveyed to them by absolute deed an undivided half interest in a certain tract of land situated in the town of Covington.

Injunction. Wills. Jurisdiction. Ordinary, Personalty. Deeds. Before Judge Lester. Fulton County. At Chambers. January 4, 1879. Held: and now hold, in Coweta county, certain property of his. It now belongs to his estate. The caveat of Hugh M. Arnold to the will in Coweta was introduced.

Witness. Statute of limitations. New promise. Evidence. Before Judge Hall. Newton Superior Court. September Term, 1878. On August 27, 1877, Hobson brought complaint against Hickson as administrator of Havid Dickson, deceased, on a note under seal, dated February 18, 1848, payable one day after date, to Josiah Dickson, or bearer, for $8,788.75.

Tax. Municipal corporations. Constitutional law. Roads and bridges. Before Judge Simmons. Bibb County. At Chambers, February 22, 1879. Johnston and some forty-five others, representing a variety of occupations and trades in the city of Macon, filed their bill against the mayor, etc., to enjoin the collection of certain taxes, alleged to be illegal, which were assessed by the tax ordinance of 1879.

<p>Where a claim case was tried involving two levies under different fi. fas. in favor of the same plaintiff, and the court, on an agreed statement of facts, held one of the fi. fas. operative against the 'property claimed, and the other not, and the claimant tendered a bill of exceptions alleging error in the decision as to the former fi. fa., which bill of exceptions was duly signed and certified; and then, upon the page next after the judge’s certificate, the plaintiff excepted to the decision as to the other fi.fa., and prayed “ that the same may be certified as required by law, that the errors complained of may be corrected,” but no certificate by the judge was added, and nothing appeared to show that the judge ever saw the plaintiff’s exceptions, or knew that they were taken, the plaintiff’s so-called bill of exceptions cannot be considered in the supreme court, but the review by this court will be confined to the rulings excepted to by the claimant. And, on the call of the case, if the claimant (the true and only plaintiff in error) declines to proceed for the purpose of obtaining a reversal, and at the same lime declines to withdraw the writ of error, the court will dismiss it.</p>

New trial. Practice in the Superior Court. Amendments. Before Judge Gjbson. Richmond Superior Court. October Term, 1878. Mrs. Girardey and her children, filed their bill against Bessman et al., to enjoin the sale of certain realty under a mortgage from Girardey to Moore, and for other purposes. The merits of the case depended upon setting up a certain trust deed from Girardey to Bessman, as trustee of complainants, which was alleged to have been lost.

Evidence. Practice in the Superior Court. Contracts. Deeds. Homestead. Claim. Before Judge Buchanan. Troup Superior Court. November Term, 1878. Wilson Allen was indebted to Erost. He desired to secure him, as he swears, by mortgage, as the latter testifies, by such instrument as would amply protect him.

Criminal law. New trial. Before Judge Hillyer. Fulton Superior Court. September Term, 1878. The facts set out in the head-note and opinion sufficiently report this case.

Vendor and purchaser. Evidence. Eescision. Charge of Court. Before Judge Underwood. Whitfield Superior Court. April Term, 1878. Fambro brought complaint against Todd on two notes, one for $2,000.00, dated December, 25, 1874, and due December 25, 1875; the other for the same amount, bearing the same date, and due December 25, 1876, both bearing interest from date at 10 per cent, per annum.

<p>Where- an issue' as to the existence of a lien on a saw-mill was found in favor of the plaintiffs, and a general judgment erroneously entered against the defendants and the sureties on-their replevy bond, which judgment was subsequently set aside, there was no error in allowing a special judgment against the property to be afterwards entered mmo pro tuno, the legal status of the sureties not being affected thereby.</p>

Practice in the Supreme Court. February Term, 1879. The motion for a new trial in this case was overruled on December 11, 1877, and the bill of exceptions to such judgment certified by the presiding judge on January 11, 1878. The bill of exceptions recited that it was presented within thirty days from the rendition of the judgment complained of. The certificate of the judge was in the usual form, and contained no explanation of the delay.

Equity.. Judgments. Exhibits, Before Judge Hood. Terrell Superior Court. November Term, 1878. Held: commenced with a deed from one James Delay, to whom the land was granted by the state on January 10, 1837. This deed was made soon after the date of the grant. The various persons through whom the title descended to the said Andrew have died, and their estates are now unrepresented.

Justice Courts. Pleadings. Railroads. Damages. Fence. Diligence. Before Judge Buchanan. Campbell Superior Court. August Term, 1878. Hudson brought complaint against the railroad for damages to personal property.

Railroads. Master and servant. Contracts. Evidence. Before Judge Grice. Bibb Superior Court. April Term, 1878. On October 5, 1875, Coggin commenced suit against the Central Railroad to recover $10,000.00 as damages for a personal injury.

<p>1. Permissive possession of land without the payment of rent, having been enjoyed by a son-in-law for about twenty years, and, in the meantime, the fa.ther-in-law having made his will and devised the premises to the son-in law absolutely, clogging the devise with no condition, burden or duty whatsoever ; and the father in law, after-resuming possession and holding it for a few months, having died without changing his will, the will, after probate, should be regarded as confirmatory of the implied or presumptive gift indicated by the long continued possession free of rent.</p> <p>2. A creditor of the devisee, upon a contract made before the testator resumed possession, having attached the land some two years after probate of the will the devisee, (the defendant in attachment) could not defeat the levy by a disclaimer of the devise, made by deed executed after the levy took place ; nor- could the executors defeat it by setting up their non-assent to the devise, there being, on the facts in evidence, no justification for withholding their assent, the land not being required for the payment of the testator’s debts, or the expenses of administration.</p> <p>8. Though to the ordinary issue in a claim case, to wit, that the property is subject, the plaintiff, superadded a specification of particular facts, such as that the property was devised, and that the executors, without good reason, withheld their assent, the evidence was not necessarily to be restricted to the particular facts alleged, but it might take as wide a range as if the ordinary issue had stood by itself.</p> <p>4. General reputation of title is not admissible.</p> <p>5. Slight errors in admitting or rejecting evidence, or immaterial errors in charging the jury, are not cause for a new trial, the verdict being in accordance with the law and the great controlling elements of fact.</p> <p>6 W ith or without the suggestion of counsel, the court may recall the jury while they are in the act of retiring, and correct or explain any part of the charge which the court apprehends may not have been delivered with due accuracy or clearness to convey the meaning intended.</p> <p>7. That the sheriff, whilst the jury were on a walk after being charged with the case, spoke to one of them in the presence and hearing of the others, respecting the health of a member of the sheriff’s family, is not cause for setting aside the verdict.</p> <p>8. That the, sheriff selected and summoned the tales jurors necessary to complete the panel, he being plaintiff in a like case pending in the court against the same defendant and the same claimant, involving, the same property, should have been urged as an objection to the talesmen before the trial was begun. It comes too late after verdict.</p> <p>9. In a claim case, a verdict finding the property subject need not specify why it is subject, whether there be one issue only or several issues.</p> <p>10. Newly discovered evidence which could not change the result is of no consequence.</p>

Equity. Wills. Estates. Income. Before Judge Pottle. Riebmond Superior Court. October Term, 1878.

Equity. Cloud on title. Deeds. Before Judge Gibson. Richmond Superior Court. October Term, 1878. On February 12th, 1836, Nelson conveyed to the defendant a certain lot of land. The deed thereto was recorded on the 25th of the following May. On March 4, of the next year, Nelson executed.two deeds, which together covered the same property — one to defendant, embracing a sti’ip forty feet in width; the other to George Jones, jr., covering the remaining portion of the lot.

<p>Judgments. Statute of . limitations. Executors and administrators. Execution. Levy and sale. Before Judge Bartlett. Wilkinson Superior Court. October Term, 1878.</p> <p>An execution dated February 1, 1875, wherein tbe sheriffs are directed to cause to be made of certain described lands $1,134.15 principal, besides interest and costs, which James Jackson, for the use of William C. Parker, lately recovered in Wilkinson superior court against Joseph T. Jones, was, on February 26,1878, levied upon the property therein named. To this process Jones filed an affidavit of illegality setting forth the following grounds :</p> <p>1. The execution was based upon a decree which was dormant at the date it issued, and dead at the time of the levy.</p> <p>2. The execution materially varies from the decree upon which it purports to be based, said decree being in favor of James Jackson, whilst the execution is in favor of said Jackson for the use of William C. Parker.</p> <p>The case was submitted to the court without the intervention of a jury. The decree referred to in the execution was based upon a bill filed by Jackson, formerly administrator of Rebecca Jones, against Joseph T. Jones, to subject certain land which had been turned over to him as the heir-at-law by said administrator, to the payment of certain judgments obtained against such administrator on a debt of his intestate. Upon this bill, cross-bill, answer, etc., the jury, on November 14, 1867, returned a verdict, in substance, as follows : We find that the Parker debt, on which judgments were rendered at the August term, 1866, of Wilkinson county court, against James Jackson as the administrator of Rebecca Jones, deceased, was a debt of said deceased, and that the same is still unpaid. We further find that certain land (describing that levied on) was originally the property of said deceased, and was turned over by James Jackson to Joseph T. Jones, heir-at-law, and is subject to the payment of the aforesaid Parker debt. We further find that said land be sold under the rules and regulations governing sheriffs’ sales, and that the proceeds thereof, or so much as may be necessary, be applied to the payment' of said debt, and the costs of this proceeding.</p> <p>The decree of the chancellor was entered on the same day, and was substantially a repetition of the last division of the verdict of the jury, with the direction that execution do issue.</p> <p>Jackson having died, Wall, his executor, was made a party in his stead.</p> <p>The court held that the judgment was dormant at the time the execution issued, sustained the illegality and dismissed the levy. To this ruling the plaintiff excepted.</p> <p>cited 7 Ga., 495 ; 40 II., 412; 8 lb., 32; 18 lb., 749; 33 lb., 151; Code, §§3639, 4217, 4219.</p> <p>cited 58 Ga., 278 ; 8 lb., 97,106,110,325; 7 lb., 154, 495; Code, §§2924, 2309, 2316, 3328, 3377, 3378, 3381, 3382, 4215, 4217, 4219 ; 56 Ga., 138, 640; Hill on Trustees, 247; Angelí on Linn, §178 ; 2 Par. on Con., 342.</p>

<p>One who purchases land; pays for it, and enters into possession, cannot, before eviction under title paramount, recover the money back in an action for money had and received, without surrendering the possession or offering to do so, though the seller refuses to exec utea conveyance in terms of the contract. To rescind the purchase and keep the land, is not allowable.</p>

Criminal law. Jury. Practice in the Superior Court. Before Judge Pottle. Jasper Superior Court. October Adjourned Term, 1878. Cochran was placed on trial for the murder of Greer, and convicted. He moved for a new trial upon the following, among others grounds: Because the court erred in permitting the second panel of jurors, twenty-four in number, to be put on defendant without having first given him an opportunity to challenge the same.

Trusts. Title. Husband and wife. Notice. Before Judge Tompkins. McIntosh Superior Court. May Term, 1878. Aiken as trustee for his wife, brought ejectment against Sutton for four acres of land.

Sheriffs. Pail. Damages. Before Judge Johnson. Washington Superior Court. September Term, 1878. Snell brought trover, with bail process attached, against Jackson. Mayo, the sheriff, served the defendant by leaving a copy at his most notorious place of abode. lie made no return as to the property sued for, or as to any arrest of the defendant. Subsequently the plaintiff recovered a verdict and judgment against the defendant for $40.00.

<p>1. A writ of error based on the denial of an injunction to restrain the making of a deed, will not be dismissed on a suggestion of the defendant’s counsel, supported by his affidavit, that the deed has been executed and delivered since the writ of error was brought.</p> <p>2. If a bill has equity in it, the equity cannot be lost by the denial of an injunction ad interim. An injunction properly moulded may still be granted on final decree. Acts of the defendant done pendente lite cannot obstruct the court in decreeing appropriate relief in tlie end. Such acts are at the peril of the defendant, and may be brought into the case by amendment to the bill, and their effects, so far as prejudicial to the complainant, may be canceled or compensated according to the requirements of sound equitable principles.</p> <p>3. Whatever may be the rights of the respective, parties on a final trial of this cause, the chancellor did not abuse his discretion in denying the ad interim injunction.</p>

Principal and agent. Charge of Court. Before Judge Clark. City Court of Atlanta. June Term, 1878. Hill brought complaint against Fleming on an account for liquors sold, amounting to $410.50. The defendant pleaded the general issue.

<p>1. While negotiable paper drawn, delivered and accepted on Sunday, is void between the parties, yet, if it is falsely dated as of another day, and comes to the hands of an innocent holder who takes it for value, without notice, and in the due course of trade, the acceptor is estopped in a suit against him by such holder.</p> <p>2. Where the pleadings make the issue of void or not void, and the plaintiff, claiming to be a bona fide holder, adduces evidence expressly in denial of notice, the defendant may insist on the general circumstances of the transaction as tending to prove notice, and the court may charge the jury on the subject, though there be no plea alleging notice in express terms, the plea of the general issue, besides several special pleas, being in.</p> <p>3. The Code, in section 3960 declares, “If there are several pleas filed by the defendant, a verdict for the defendant must show upon which of the pleas the verdict is rendered. The jury may render such verdict upon all the pleas if they see proper so to do.” There being four distinct pleas to the action, to-wit: the general issue, illegality in the instrument declared upon, in that it was made and negotiated on Sunday, fraud against the bankrupt law, and payment, the court charged the jury that if the instrument was made on Sunday and the plaintiff knew it, then they would proceed no further with their investigations, but their duty would be to find for the defendant. No plea was designated on which to render the verdict. In concluding the charge on the whole case, the court further instructed the jury that if they found for the defendant, they would simply say, “ We the jury find for the defendant,” and such was the finding, the verdict rendered being in that language.</p> <p>Held,, on a motion by the plaintiff for a new trial, that the verdict construed in the light of the charge of the court, was contrary to the above cited section of the Code.</p> <p>Held, also, that the charge was erroneous in directing the jury to proceed no further, whilst any of the pleas remained to be disposed of, and in not pointing out what plea to rest the verdict upon, in case the jury chose to restrict their investigations to the Sunday question alone, it being apparent from the conclusion of the charge that the court meant the same form of verdict to be used whether the finding for the defendant was upon that one question, or upon some or all of the other defenses pleaded.</p> <p>4. That the verdict fails to designate the plea on which it is found, or to declare expressly that it is found on all the pleas, is not cause for arresting judgment.</p>