Volume 63 — Georgia Reports

Injunction and receiver. Evidence. Argument. Practice in the Superior Court. Sales. Fraudulent conveyance. Before Judge Lawson. Bibb County. At Chambers. January 29, 1879.

<p>Homestead. Charge of Court. New trial. Before Judge Buchanan. Campbell Superior Court. August Term, 1878.</p> <p>Two executions in favor of Boyd against Torrance, were levied upon a mare and horse as the property of the defendant, and a claim filed by his wife, Mrs. Torrance. The evidence upon the issue thus formed presented the facts set forth in the opinion.</p> <p>The jury found the property subject. The claimant moved for a new trial upon the following grounds:</p> <p>1. Because the court erred in admitting in evidence the first homestead proceedings of the defendant.</p> <p>2. Because the court erred in charging the jury, that if they believed, from the evidence, that defendant had a homestead set apart to him in'1868, as the head of a family consisting of a wife and minor children, and that one member of that family, a female over twenty-one years of age, in indigent circumstances, was living with him, depending on him for a support, when the second homestead was set apart, the defendant, although he had married another wife, was not entitled to a second homestead. That it did not make any difference whether that female was of age when the first homestead was set apart or not.</p> <p>3. Because the court erred in charging, that if the jury believed the defendant had in his possession, at the time he made his last application for a homestead, or at the time he obtained the order of court setting off the property as exempt, any money or other personal property that he fraudulently concealed or did not deliver up for the benefit of his creditors, then all orders of court obtained by the fraudulent concealment of said property, or obtained, if defendant had personal property which he kept out of reach of the levying officer, or did not, in good faith, deliver up for the benefit of his creditors, are null and void, and they should find the property subject.</p> <p>The motion was overruled and claimant excepted.</p>

<p>1. The'homestead right in land to which the debtor has the legal title is, in equity as well as at law, superior to any right of a creditor whose claim is not within one of the exceptions embraced in the constitution. Hence, even in equity., to establish or assert the homestead right in opposition to a deed void for usury, neither payment nor tender of the debt which the deed was made to secure is necessary.</p> <p>2. An infected debt closed up whilst the usury laws stood repealed, and then reopened after they were restored, is still infected until purged. But if purged when reopened, an instrument then made renouncing title to land previously conveyed by a usurious deed, and recognizing title thereto in the creditor, and providing for a sale by him, will be upheld as a conveyance for security of the debt.</p> <p>3. Homestead is favored by the law, and usury is odious to che law. For reasons of public policy, no waiver of homestead can be effectual where the consideration has any taint of usury.</p> <p>4. Tenancy cannot arise between debtor and creditor by a contract for rent, if the title on which the so-called tenancy rests is void for usury. In such case there is no estoppel upon the debtor to deny that the creditor is his landlord. The like rule holds as to a hiring of personalty.</p> <p>5. To add to the principal interest thereon at an agreed lawful rate and give a vn-itten obligation for the aggregate, without expressing the rate itself, is a sufficient compliance with a statute which tolerates a limited conventional rate of interest on condition of the contract therefor being in writing.</p> <p>6. Though a judicial sale of personal property be void, if the owner, with full knowledge of the facts, hires the property from the purchaser, no usury or other illegal element being in the transaction, the contract of hiring is obligatory, and the consequences ensue which attend ordinary cases of bailment.</p> <p>7. Though in a proceeding to secure homestead, questions are made which are not appropriate to an ordinary proceeding for the like object, yet, if the parties agree specially to try them, and conduct the trial accordingly, the court should not in the end charge the jury in a way to leave the main controversy still open.</p> <p>8. A pending trial should be concluded before members of the jury are charged with another case. Hence, it is improper to withdraw a case after the evidence is all in, proceed to other business with some of the same jury, and afterwards resume and finish.</p>

Scaling ordina ice. Payment. Evidence. Attorney and client. Charge of Court. Actions. Before Judge Tompkins. Chatham Superior Court. May Term, 1878.

Contracts. Statute of frauds. Practice in the Supreme Court. Before Judge Clark. City Court of Atlanta. December Term, 1878. McGaughey Bros, brought complaint against Battle and Latham on an account which was headed as follows : “ John C. Battle, Jas.

<p>Pleas. Mortgage. Recoupment. Judgments. City-Courts. Before Judge Harden. City Court of Savannah. July Term, 1878.</p> <p>Boehm, Bendheim & Co. brought complaint against Juchter, commencing their action February 26, 1878, on two notes, each for the sum of $250.00, and dated February 21, 1877, one due three months, and the other twelve months, after date. The defendant pleaded in abatement the pendency of proceedings by execution, levy and counter-affidavit, in the superior court, had on the foreclosure of a mortgage of personalty, given to secure the notes sued on. He also pleaded in bar the following facts:</p> <p>On February 23d, 1877, the following written agreement was entered into for a good and valuable consideration :</p> <p>“ This is to certify that if Mr. Henry Juchter cannot meet his note of $250.00, due three months after February 21sc, 1877, we shall renew the same for one year, provided the balance of the notes are met at maturity. (Signed) Boehm, Bendheim & Co.”</p> <p>The notes referred to as the balance were the notes sued on, due at twelve months, and two others due at six and nine months, which latter were paid at maturity. Before and on the day the note sued on, due at three months, became due, the defendant called upon the plaintiffs to renew the same for one year, which renewal they agreed to make, and. informed the defendant that it was allowed, subject only to the condition of said agreement, with which condition he complied as to the six and nine months notes. The one due at twelve months was not met at maturity, because plaintiffs were secured by a mortgage upon a stock of groceries, liquors, etc. Plaintiffs, before the maturity of any of the notes aforesaid, commenced proceedings, in utter violation of the terms of said mortgage, in the superior court of Chatham county, to foreclose the same for the purpose of collecting said first and last notes, to-wit: the notes now sued on. Under these proceedings they seized and sold defendant’s stock of goods, and have not tendered to him any account of the proceeds of said sale. Said stock was worth more than double the amount due, or to become due, on the two notes referred to. The foreclosure proceedings aré still pending on an affidavit of illegality filed by the defendant. This issue will be determined at the May term, 1S78, of the superior court, and should it result favorably to the plaintiffs, the amount which has been realized from the sale of said stock must be credited on the debt sued for in this case, and will either wholly or partially pay it off. Defendant says that he was absolved from paying said last note at maturity by reason of the aforesaid conduct of the plaintiffs, the pendency of the litigation, and the undetermined issue in the superior court.</p> <p>He further pleaded total failure of consideration in this, that the plaintiffs foreclosed their mortgage in violation of their contract as above stated, thereby causing the whole of said stock, for which said notes were given, to be lost to defendant.</p> <p>Subsequently the defendant amended his pleas, that in abatement as well as those in bar, by setting up that the issue pending in the superior court upon whether said foreclosure was instituted before the maturity of the debt to secure which the mortgage was given, has been determined in favor of the defendant. To this judgment plaintiffs have excepted, and are preparing to take the ease to the next term of the supreme court.</p> <p>Upon motion of plaintiffs all of the above pleas were stricken, and though defendant had regularly filed his demand for jury trial, judgment was rendered by the court without the verdict of the jury, no defense of any kind being left upon the record. To all of which the defendant excepted and assigns error as follows :</p> <p>1. That the court struck the pleas as above stated.</p> <p>2. That judgment was rendered by the court- without the verdict of a jury.</p>

<p>1. In order for a settlement of admitted usury to be conclusive by way of accord and satisfaction, it must not leave tbe debtor in vineulis to the creditor. If the apparent object be to purge out the usury, and make new notes for principal and lawful interest only, a failure, unexplained, to purge it all out leaves the debt still tainted, and usury previously paid, whether on the same loan or a prior one, will be a defense pro temto against the new notes. It does not appear from the record that the plea came too late.</p> <p>2. Where the court has fixed no time for filing an auditor’s report, the report may be filed at any time before the trial. If necessary, a continuance will be granted to afford time for excepting, and preparing to try the exceptions.</p> <p>3. It would seem that the auditor’s fees in a case at law are to be paid, as costs by the party cast. But taxing them equally against each party is not cause for a new trial.</p>

Practice in the Supreme Court. New Judge Hillyer. Clayton Superior Court-. 1878. trial. Before March Term,. When this case was called, a motion to dismiss the writ of error was submitted, because properly returnable to the last August term of this court. The bill of exceptions disclosed that it was tendered to the presiding judge on June 8, 1878, and signed on the 18th of the following month, he certifying that the delay was unavoidable.

Criminal law. Burglary. Alibi. Before Judge Hillter. DeKalb Superior Court. September Term, 1878. Goldsmith was placed on trial for the offense of burglary in the night-time. The indictment charged that he 1‘ did break and enter the dwelling house of Edward B. Walker, with intent to commit a larceny, and after breaking and entering, was detected and prevented from committing the larceny.” He pleaded not guilty.

<p>Where the evidence is circumstantial, and not plainly insufficient, the verdict should stand. Weighing the evidence and finding the truth in an obscure or doubtful case, is work that can usually be well done, best clone, by a jury of the vicinage.</p>

Judgment. Claim. Principal and security. Levy and sale. Executions. Before Judge Crisp. Sumter County. At Chambers. February 24, 1879. Mitchell filed his bill against Toole to enjoin the sale of certain property under an execution against one Shealy, as guardian, and complainant as security on the claim bond. The bill was lengthy and embraced numerous matters entirely immaterial to the decision rendered.

Equity. Trusts. Debtor and creditor. Usury. Settlement. Evidence. Before Judge Crisp. Macon Superior Court. December Term, 1878. In 1839, Nixon bequeathed to his daughter Eliza and her children, to their separate use, etc., certain property. Eliza married McCaskill, by whom she had three children now living. To carry out the provisions of the will, McCaskill and wife petitioned the superior court of Bibb county to appoint John L. Parker as trustee.

<p>Injunction. Trusts. Mortgage. Contracts. Guaranty. Powers. Time. Before Judge Pottle. Richmond County. At Chambers. March 13, 1879.</p> <p>The Macon & Augusta Railroad Company filed its bill against Wm. M. Reese and the Georgia Railroad, presenting, in substance, the following facts :</p> <p>On June 16,1869, Hull & Co., of New York, contracted with complainant to complete and deliver its road from Milledgeville to Macon by July 1st, 1870. In this contract were the following provisions:</p> <p>“ The said parties of the second part (Hull & Co.) also agree to pay the debts now due by said company, and the accruing interest of the bonded debt, until the road be completed and delivered for use to Macon.</p> <p>“It is further agreed by said party of the first part (TheM. & A. R. R.), that said parties of the second part may, at their option, either take absolute possession and control of the' whole road, including the finished portions, to operate the same as they may deem best for their own interests, or they may permit the Georgia Railroad Company to work the finished portion as at present, reserving to themselves, however, the right to alter and amend the schedule and ratQS of freight and passage, and generally to control the working of the road in such manner and at such times as they may see proper so to do, until the expiration of their contract,”</p> <p>Hull & Co. failed to complete the road by July 1st, 1870, and it remained in such condition until November 12, 1872, when the following contact was entered into :</p> <p>“It is hereby agreed by and between M. K. Jessup & Co. and G. G. Hull & Co., of the one part, and the Geo. R. R. & B’kg Co. and the M. & A. R. R. Co., of the second part, that:</p> <p>“ 1. All claims by the M. & A. R. R Co. against G. G. Hull & Co. for non-execution or defective execution of their contract, shall be released to them, and the stock of said company issued to them shall be all .confirmed in the hands of the present holders.</p> <p>“ 2. All claims by G. G. Hull & Co. for work done on said road east of Milledgeville shall be released, and in like manner, all moneys advanced by M K. Jessup & Co. and the Georgia R. R. Co. for same purpose, to be released.</p> <p>“3. All advances made by the Geo. R. R. & B’kg Co. to G. G. Hull & Co., as contractors, shall be released.</p> <p>“4 All claims of the Geo. R. R. & B’kg Co. on the M. & A. R. R. Co., at date of the contract made by G. G. Hull & Co., say June, 1869, and for losses from working said rbad since the completion of said contract, say December 19, 1870, and also for coupons paid, to be released.</p> <p>“5. The bonds now held by the Geo. R R. & B’kg Co. as a special deposit of M. K. Jessup & Co. to be appropriated to the completion of the M. & A. R. R. according to the original contract and specifications made with G. G. Hull & Co., and all other work under said contract not by them fully performed.</p> <p>‘‘ 6. All suits now pending by or against any of the parties hereto and involving any of the matters herein provided for, to be dismissed upon the ratification and confirmation of the agreement by the boards of directors of the respective roads, or other proper authority, and in the meantime all action in the said suits to be stayed.”</p> <p>Preamble and resolution adopted by the board of directors of the Georgia Railroad and Banking Company, .February 11, 1873:</p> <p>“Whereas, Geo. G. Hull & Go,, of New York, on the lGth day of June, 1869, contracted with the Macon and Augusta Railroad Company to complete said road from Milledgeville to Macon, and deliver the same thus completed on or before the 1st day of July, 1870, as by reference to said contract will appear; and whereas the said Geo. G. Hull & Co. have failed to comply with their said contract, by which large advances and expenditures became necessary, which have been made by this company to the said Macon and Augusta Railroad and G. G. Hull & Go to prevent the suspension of the work on said road and the abandonment of the same; and whereas, in consequence of said default various subjects of controversy have arisen between Geo G. Hull & Co., M. K. Jessup & Co., the Macon and Augusta Railroad Company, and this company, which it is very desirable to settle amicably, and for which object this company propose* to make large sacrifices; therefore</p> <p>“Be it Besolmed, That without admitting the recitals and assumptions in a contract signed by the parties and dated the 12th day of November, 1872, this company wi'l agree to the same: Provided, however, and it is expressly understood, that except to the filling of the Ocmulgee swamp trestle, this company shall be allowed a reasonable time to finish the other unfinished sections of the road by the gradual reductions of the grades with the track raising force, or such other extra force as it may be deemed convenient to put upon the work; and provided, further, that the rolling stock now in use upon the road, and which has been paid for by this company, shall be recognized as its' own property.”</p> <p>Contract also ratified, without provisions, by board of directors of Macon and Augusta Railroad.</p> <p>Notwithstanding this solemn agreement of the Georgia Railroad to take the place of the contractors, Hull & Co., and to finish and deliver the road to complainant, the same has not been completed and returned according to the agreement as made and fully understood between the jiarties at the time. The bonds referred to in said contract as held by the Georgia Railroad under special deposit of Jessup & Co. were worth $85,000, or other large sum, and which were to be appropriated to the completion of the road, have never been so applied. During the whole time that the Georgia Railroad has held said road for completion, it has been using the same, and realizing a large income from its working, ample, for aught complainant knows, to fully pay up all accruing coupons and working expense, besides a handsome net earning. But the road lias never yet been fully finished, and there have been no statements made to, or accountings had with, complainant tending to show the actual business status between the two companies, and complainant insists that it is entitled to this, and hereby calls for it, as a necessary preliminary to a just settlement between them, provided its version of the contract of November 12,1872, is held tobe erroneous. If such version be sustained,then nothing remains to be done but to complete tbe road and turn it over to complainant. If this version be not sustained, then complainant insists that the Georgia Eailroad has taken possession of its road without any contract, and has worked it for its own use for the space of-years, and hence is liable for a fair rental therefor, which would be $100 per mile per annum.</p> <p>Notwithstanding these facts, the Georgia Eailroad now proposes to sell complainant’s road under a mortgage deed, wherein John P. King and William Hope Hull were trustees for certain purposes therein named, executed on July 1,1869, which is as follows :</p> <p>“ State oe Georgia — Richmond County.</p> <p>“ This deed of trust and mortgage made and executed this first day of July, A. D. eighteen hundred and sixty-nine, between the Macon and Augusta Railroad Company, of the first part, and John P. King and William II. Hull, both of said county, of the second part, witnesseth: That for and in consideration of the sum of ten dollars, by the said parties of the second part to the party of the first part in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and also for the better securing the due payment of the bonds and obligations hereinafter described, and for the indemnity of the guarantor thereof as hereinafter stated, the said Macon and Augusta Railroad Company, being authorized to do so by an act of the legislature of Georgia, approved February 25, 1869, as well by the charter of said company, doth hereby grant, bargain, sell and convey unto the said John P. King and William H. Hull, in trust for the purposes hereinafter mentioned, the entire real and personal property of the said company, including their railroad, finished and to be finished, extending from the point of junction with the Georgia Railroad to the city of Macon, lying and being in the counties of Warren, Hancock, Baldwin, Jones and Bibb, in said state of Georgia, including all real estate and buildings of every kind, rights-of way and other easements, railroad track, iron and superstructure, and also all locomotive engines, passenger, freight and other cars, whether now in possession or hereafter to be acquired.</p> <p>“And the said party of the first part doth likewise convey and assign unto said parties of the second part, upon the like trusts, all t-he-corporate privileges and franchises which have been or may be granted •to and are enjoyed by the said Macon and Augusta Railroad Company, t ó be used and enjoyed by said parties of the second part as fully as by said company.</p> <p>“In trust, nevertheless, and for the following purposes, hereby declared as the true intent of this conveyance:</p> <p>“That, whereas, the said Macon and Augusta Railroad Company have executed and are about to issue three hundred and seventy bonds, each for the payment of the sum of one thousand dollars, of even date with these presents, and payable ten years after their date, numbered-from 1 to 870, inclusive, being negotiable securities, and bearing interest at the rate of seven per cent, per annum, coupons for which, payable semi-annually, are attached to said bonds; and, whereas, the Georgia Railroad and Banking Company, under the authority of said-act of February 25, 1809, have guaranteed the payment of the principal and interest of said bonds. Now, therefore, the said trustees, so long, as the said Macon and Augusta Railroad Company shall promptly pay the interest semi-annually accruing on said bonds to those entitled to receive the same upon the lawful presentation of said coupons for payment, shall permit the said Macon and Augusta Railroad Company to possess, control and enjoy all the property, rights and franchises herein conveyed as fully as though this conveyance had not been made, until the time when the principal sum of said bonds shall be due and payable, and if then the said Macon and Augusta Railroad Company shall' fully pay off and discharge not only the interest as aforesaid, but also the said principal of all and each of said.bonds promptly on presentation thereof, according to the tenor and effect of said bonds, and shall hold the said Georgia Railroad and Banking Company harmless and free from all loss or damage by reason of said guaranty; then this deed of trust and mortgage shall be void and of no effect. But if at any time the said Macon and Augusta Railroad Company shall fail or refuse to pay any of said coupons when due and payment thereof lawfully demanded, or shall fail or refuse to pay the principal of any of said bonds when due and lawfully demanded, then the said parties-of the second part are hereby authorized and empowered, and upon the application of the said Georgia Railroad and Banking Company, or of the holders of one-third part of said bonds, it shall be their duty immediately to enter upon and take possession of the said road and of the property and franchises herein conveyed, and shall by officers and agents, to be by them employed for the purpose, use and work the said road for the benefit of the holders of said bonds and coupons, and shall devote the profits and earnings of the same, after paying the expenses of working and management, taxes, repairs, and other lawful charges, including prior liens thereon, to the discharge and payment of said bonds, and interest due and accruing thereon until the same shall be fully paid, principal and interest.</p> <p>“And said parties of the second part are also authorized, at their option, in the event of default in payment as above stated, upon the like application as aforesaid, by giving sixty days notice to said party of the first part of their intention so to do, and said default still continuing, to sell the property, rights and franchises herein conveyed, at public sale, to the highest bidder, in the city of Augusta, Georgia, having previously advertised said sale for sixty days in two of the public gazettes of said city of Augusta, and to convey the same in perpetuity to the purchaser; such sale may be for cash or on such other terms as said trustees may think fit, and shall be a complete bar to all claims or rights of the said Macon and Augusta Railroad Company to the property, rights and franchises herein conveyed, and the proceeds of said sale, after paying the expenses and charges thereof and all liens and claims having legal preference, shall be applied to the payment and discharge of said bonds, principal and interest, and for the reimbursement of said Georgia Railroad and Banking Company for all payments, and interest thereon, and for all losses, expenses and damages incurred by reason of the aforesaid guaranty, and the residue, if any, shall be paid to siiid Macon and Augusta Railroad Company.</p> <p>“And it is understood and declared that this deed of trust and mortgage is made subject to a mortgage heretofore executed by said parties of the first part to secure the payment of a former issue of bonds dated January 1, 1807, to the amount of four hundred thousand dollars.</p> <p>“And it is further provided that in case of the death, resignation 01 incapacity of any one of said trustees, the rights, powers and duties herein conveyed and imposed shall devolve on the survivor, and in case of the death, resignation or incapacity of both said trustees, then the said Georgia Railroad and Banking Company, or in case of their failure to do so within a reasonable time, then the holders of the majority of said bonds may appoint, by the approval of the judge of the superior court of either of the counties in which said road is located, one or more trustees, who shall be substituted to all the interests, rights, powers and duties of said parties of the second part, and said parties of the second part, or either of them, may resign this trust by signifying the same' in writing to the Georgia Railroad and Banking Company.”</p> <p>William Hope Hull has died and John Pi King has resigned his trusteeship under the mortgage, and William M. Reese was appointed sole trustee to fill the vacancy thus created. Complainant does not know whether said appointment has been legally made in conformity with the terms of the contract, and it asks that defendants be held to strict pn-oof thereof, Said Reese, as such trustee, at the instance of the Georgia Railroad, as the indorser and guarantor of the bonds, has taken possession of complainant’s road, its property and franchises, and for the indemnity and repayment of such indorser and guarantor, has advertised the same for sale on the first Tuesday in December next, the advertisement being dated September 3d,. 1878.</p> <p>Complainant believes that the whole procedure looking to a sale of its road is not only illegal and grossly inequitable, for the reasons already stated, but wholly violative of both the letter and spirit of the trust mortgage itself. The deed provides two methods in case of default to pay the accruing interest on the bonds guaranteed, and each method is distinct and independent of the other, and must be'pursued in the order set forth in the mortgage, to-wit: 1st. The taking possession of the road and receiving its income until said interest payment by the Georgia Railroad should be canceled and the principal debt paid. 2d. By a sale, should said default still continue after the first mode of redress had been tried in vain. This sale is to be preceded by demand, notice and advertisement. It will be seen that before either remedy can be resorted to, demand is a preliminary step, and that before the last can be resorted to, not only demand, as in the first case, but also sixty days’ notice to complainant, and sixty days’ advertisement in addition, must precede the second remedy. In this couneetion, complainant invites attention to the following letters :</p> <p>“ Augusta, June 7, 1878.</p> <p> “ W. J. Magrath, Exq., President M. & A. It. It. Co.: </p> <p>“ Dear Sik, — The Georgia Railroad and Banking Company desires to be immediately relieved from any further management or control or operation of the Macon and Augusta Railroad Company, and hereby requests you, as its President, to take entire charge of the same for your stockholders. If you think a conference desirable, I will be pleased to arrange it with you by telegraph. We also wish to have your company, or the South Carolina Railrotd Company, assume a proportion of the coupons of the bonds jointly guaranteed by the Georgia and South Carolina Railroad Companies, both those already paid by this company and those to fall due in future.</p> <p>“ Very respectfully yours,</p> <p>“E. P. Alexander, President."</p> <p>■ “Augusta, Ga., August 28, 1878.</p> <p>“ M. J. Magmth Esq., President M. & A. B. R. Oo.:</p> <p>“Dear SrR, — -On the part of the Georgia Railroad and Banking Company, I hereby demand of the Macon and Augusta Railroad Company the payment of the coupons of the bonds issued by the latter company, which have been paid by the former company. The amount is about $329,393.49 at the present time.</p> <p>“ Very respectfully yours,</p> <p>“ E. P. Alexander,</p> <p>“ President."</p> <p>It is quite evident that neither of these letters is the notice contemplated and required by the mortgage. Such notice was not to be given by the president of the Georgia Railroad at all, but by the trustee named in the deed, which has never been done at all.</p> <p>Again, this notice had to be served upon complainant sixty days before the advertisement, and had to state the intention of the trustees to sell in pursuance of the application of the Georgia Railroad, and no such notice has ever been served by anybody. The advertisement states that the trustee had taken possession of complainant’s road, but the Georgia Railroad had the possession already, and was then seeking to induce complainant to resume possession, but this it will refuse to do until the road is completed and a full accounting of all its incomes had. For the reasons stated, the advertisement of Reese is wholly without authority and illegal.</p> <p>The president of the Georgia Railroad in his letter above set forth, states the amount due to it by complainant, on account of coupons paid, to be $329,390.49. This claim is unfounded for two reasons : 1st. By the terms of the contract of June 16,1869, the contractors agreed to pay all the ncorning interest on said funded debt, and when they failed' to comply with their contract to complete the road, and the Georgia Railroad, in the contract of November 12,1872, assumed the completion thereof, it took the place of the contractors, Hull & Co. 2d. But there can be no question that the Georgia Railroad did, by the contract of November 12th, release complainant from liability on the coupons already paid, and no demand was made thereon until August 28, 1878, after a lapse of more than six years, and' after there had been a change in the administration of the Georgia Railroad.</p> <p>There have been but two issues of bonds by complainant,, first, one of $400,000.00 and, second, one of $370,000 00. The first runs for twenty years, and will not fall due until January, 1887. Only $300,000.00 of this issue were ever indorsed by the Georgia Railroad, and in this the South Carolina Railroad also joined. This indorsement was without authority of law, ultra vires and void. It is claimed that an act was obtained to authorize such action, but com- . plainant has been unable to find any except that of March, 1869, which authorized the indorsement of the second issue of bonds. There is a proviso in this act to the effect that-the mortgage which may be given the Georgia Railroad insecure its indorsement so authorized, shall in nowise affect a mortgage covering the $400,000.00 issue, and that the same is thereby recognized and confirmed. But this proviso introduces an entirely distinct subject-matter from anything contemplated or covered by the title to the act, and is therefore void.</p> <p>Complainant therefore charges: 1st. That there is nothing due iron! it on the coupon account, nor can there be until after the road is completed and turned over to complainant. 2d. That if there is any interest due at all, it could only be, in any view of the case, under the mortgage-under which the sale is proposed to be had, $155,400.00, and. not tbe amount named in the demand of the president of the Georgia Railroad already referred to. In view of these facts, it is absolutely certain that even if the Georgia Railroad ■should seek to elaim that complainant owes all the coupons that have matured upon the said last issue of bonds from the date of their issuance until now, still there could not be due the amount mentioned in said demand by over a hundred thousand dollars. But if the Georgia Railroad did release, in the contract of November, 1872, all coupons then paid, the amount first above named, to-wit, $155,400.00, is all that could now by any possibility be claimed, or said mortgage be foreclosed to enforce, and as already shown under the obvious and fair intendment of said contract of 1872, the Georgia Railroad was to pay said coupons as a part of their undertaking, and complainant was to be relieved therefrom as under the contract with Hull & Co.</p> <p>That Reese may be required to desist from all proceedings looking to the contemplated sale, and the Georgia Railroad be compelled by decree to fulfil its contract by completing complainant’s road, then to turn the same over to complainant free from all debt save the bonded debt and the future accruing interest, or in the event that complainant is held liable for the interest on the issue of $370,000.00 since the contract of 1872, that the Georgia Railroad be required to have a full and fair accounting with complainant, it prays the writs of injunction and subpcena, the first to restrain the sale, and the second to require the appearance ■of the defendants. Discovery was waived.</p> <p>The answer of the Georgia Railroad Company showed, by ■exhibits, the accounts of the operations of the Macon and Augusta Railroad fro .i l-iiifi down to the time the trustee took possession. These accounts were kept on this general plan, viz.: the Macon and Augusta Railroad was charged with the expense of keeping the road in repair and operating it, and was credited with its gross earnings from every ■source, and the application of any balance of net earnings from the operations of the road to the credit of the coupon account. These accounts showed a balance due on account of coupons taken up by the Georgia Railroad and' Banking Company to Now 12th, 1872, of $102,032.56, which, balance was at that date remitted. They also show a balance due to the Georgia Railroad, August 2Sth, 1878, on account of coupons of the bonds under the mortgage of July 1st, 1869, of $154,980.</p> <p>The answer of the Georgia Railroad also shows the demand for payment of these coupons at the principal office of the Macon and Augusta Railroad Company, to-wit: in the city of Augusta; that the trustee is proceeding to' sell in default of payment of these coupons. Also the death of one of the two trustees and the resignation of the other; the induction of the present trustee, by nomination of the Georgia Railroad, and the approval of Judge Pottle. Also, the demand of the Georgia Railroad and Banking Company to the trustee to take possession of the road and sell it; that complainant never objected, before the filing of the bill, to the actual relations between the two companies; that it never demanded the accounts between the two companies ;■ that the accounts were actually furnished complainant before the filing of the bill; that the books in> which accounts were kept were always accessible to complainant; and that the coupons taken up by the Georgia Railroad for complainant after No>-. 1'th, 1j7M, were always charged and held against complainant.</p> <p>An exhibit to the answer showed that from the- bonds deposited by Jessup & Co. with the Georgia Railroad the latter had realized in cash $54,898.00, which had been expended in the completion of complainant’s road, and that it still had on hand a portion of such bonds, of the estimated value, with uncollected coupons, of $19,817.50.</p> <p>The answer of W. M. Reese presented, in brief, the following facts:</p> <p>1. Admits the indorsement of the bonds of the M. & A. R. R. Co. by the Ga. R. R. & B. Co., — the execution of the two contracts 16th June, 1869, and 12th Nov., 18-72, and sots out the resolution of the board of directors of the two companies accepting the contract of 12th Nov., 1872, as therein amended.</p> <p>2. Charges that if the contract of 12th Nov., 1872, shonld be held to require the Ga. R. R. & B. Co. to complete the M. & A. R. R., it had a reasonable time in which to do the work and this time has not yet expired.</p> <p>3. Charges that what was the inducement to the contract of 12th Nov. 1872, is immaterial, as the contract is in plain terms and must be construed according to its own terms.</p> <p>4. Charges that the G. R. R. & B. Co. has run theM. & A. R. R. by the permission and consent of the latter company and has charged only a fair and reasonable compensation for machinery and expenses of running the road — has made a full and fair accounting to the M. & A. R. R. Co. for its share of the proceeds arising from all the business of the road —that the G. R. R. & B. Co. has not made any secret of the working and income of the M. &. A. R. R. — their books showing the same to have been open all the time to the inspection of the M. & A. R. R. Co. and a report of the same has been circulated annually in printed pamphlets, also published in daily papers of Augusta, Ga., in which city the M. & A. R. R. Co. had its principal office.</p> <p>5. Charges that the G. R. R. & B. Co. shonld not be held liable for any rent of the M. & A. R. R., but if any rent should be allowed, $800.00 per mile per annum is t^o much, the whole road not being worth more than $24,000.00 per annum.</p> <p>6. Charges that the construction of the contract of 12th Nov., 1872, set up by complainant,never was the construction held by the G. R. R. & B. Co., as charged in the bill— that the coupons -were always charged to the M. & A. R. R. on the books of the Ga. R. R. & B. Co. when paid by that company, and that this was done was known to Judge King, and defendant is informed and believes it was known to President McGrath, that the amount due for coupons so paid will appear from exhibit “A” to respondent’s answer which is prayed to be taken as a part hereof.</p> <p>7. Admits the appointment of Hull and King as original trustees — the death of one and the resignation of the other— shows the regular appointment of respondent and his acceptance of the trust.</p> <p>8. Charges that he was called upon by the Ga. R. R. & B. Co. to take possession of the M. & A. R. R. and sell the same — that lie took possession of the road, and, until the same could be sold, [eased the road for $2000.00 per month— that lie was proceeding to bring the property to sale when stopped by restraining order.</p> <p>9. Charges that he has fully complied with all the requirements of the trust deed as to notice of sale to the M. ■& A. R. R., and also as to advertisement of said sale, and was proceeding as said deed and the law requires to bring said property to sale when stopped.</p> <p>10. Charges that the construction of the trust deed set up by complainant requiring sixty days notice of the sale and then sixty additional days advertisement, is not. the true construction — that the notice and advertisement may cover the same period of time.</p> <p>11. Denies that the remedies named in the trust deed shall only be pursued in the order named — but shall be at the “ option” of the trustee.</p> <p>12. Charges that the M. & A. R. R. Co. is estopped from setting up that thu indorsement of the Ga. R. R. & B. Co. on the first issue of bonds of the M. & A. R. R. is illegal— having issued the bonds so indorsed and received value therefor, and the Ga. R. R. & B. Co. admitting its liability as such indorser, the M. & A. R. R. Co. cannot now dispute it — but if, however, the indorsement is illegal, the Ga. R. R. & B. Co. is entitled to compensation under said deed as the holder of said coupons.</p> <p>13. Respondent is proceeding to sell only to reimburse the Ga. R. R. & B. Co. for 2nd mortgage coupons paid by it, amounting to say $154,980.00 — payment of these coupons having been demanded of the M. & A. R. R. Co., and payment refused before the road was taken into possession.</p> <p>14. Great value of M. & A. R. R. as set out in the bill contrasted with tax return made by its president in 1878— copy of same attached to answer and here referred to— showing road to be worth less than 2d. mortgage coupons, paid by the Ga. R. R. & B. Oo.</p> <p>Judge Snead, of the Augusta circuit, being disqualified by reason of interest in the litigation, the application for injunction was heard before Judge Pottle of the Northern circuit. On March 13, 1879. he delivered his decision refusing the injunction prayed for, and directing that the sale proceed after such advertisement is given as is provided in the mortgage deed of trust. To this judgment complainant excepted, and assigns error as follows :</p> <p>1st. Because from the facts of record and the evidence submitted, complainant was entitled to the injunction prayed for.</p> <p>2d. Because defendants offered no evidence as to what had been done with the bonds transferred to the Georgia Railroad for the purpose of finishing the complainant’s road, unless the answer of the Georgia Railroad, with the exhibit thereto attached, be considered as evidence.</p> <p>3d. Because the chancellor failed to require, and defendants offered no evidence to explain, or interpret the contract of Nov. 12th, 1872, tending to exonerate the Georgia Railroad, from all the obligations assumed by Hull & Co. under their contract of June 1 Oth, 1869.</p> <p>4th. Because no evidence was offered showing that ~W. M. Reese, trustee under the mortgage, had given the required notice to complainant, unless Mr. Reese’s answer on that point and exhibit be considered as evidence.</p> <p>5th. Because there was no evidence of any legal demand, as required by the mortgage, being made by the holders of the coupons or by the Georgia Railroad upon complainant, for the payment of the coupons which had fallen due on the second mortgage bonds, unless the answers and exhibits are considered as such evidence.</p> <p>6th. Because under the contract of November 12th, 1872, the Georgia Railroad was bound to take up all the coupons of the second mortgage bonds, until said company had finished complainant’s road.</p> <p>7th. Because said second mortgage was executed to secure the bondholders, and as indemnity to the Georgia Railroad against liability on its indorsement, and so far as it was a mortgage to indemnify, it was to save such railroad harmless when the principal of such bonds matured, and not before.</p> <p>8th. Because the trustee was proceeding to foreclose said mortgage under neither of the two modes the-ein pointed out, but by a third mode improvised by himself, and not warranted by that instrument.</p> <p>9th. Because said trustee failed to enforce the payment of the coupons by the two modes designated in the mortgage in the order they therein appear.</p> <p>1 Oth. Because the decision of the chancellor not only erroneously refuses the injunction, but also allows the sale to proceed upon mere advertisement, without the previous notice required by the mortgage.</p> <p>11th. Because on the whole facts of the case complainant was entitled to the relief prayed for.</p>

<p>Husband and wife. Yen dor and purchaser. Sales. Mortgage. Notice. Deeds. "Witness. Evidence. Before Judge Tompkins. Chatham Superior Court. January Term, 1878.</p> <p>Reported in the opinion.</p>

Criminal law. Burglary. Indictment. Reasonable doubt. Before Judge Grice. Crawford Superior Court. September Adjourned Term, 1878. Aii indictment was found against Jones for the offense of burglary, alleged to have been committed upon, the storehouse of one Joha Jones, on May 14th, 1871. Whether-perpetrated in the day or night was not set forth. Upon this ground a demurrer was filed on arraignment.

<p>[The following case was argued at the last term* and* the decision reserved. Jackson, Justice, being disqualified on account of re’afionship to some of the plaintiffs in error,, did not preside, and Hon. George Htllteu, judge of the superior courts of the Atlanta circuit, was designated by the governor to take his place.]</p> <p>1. By the witness act of 1866 and those provisions of the Code relative to the attestation and probate of wills, no person is disqualified from being a subscribing witness by reason of interest. If a subscribing witness is also a legatee or a devisee under the will, the witness is competent, but the legacy or devise to him is void; the</p> <p>' other parts of the will stand. If the interest of a subscribing wit- , ness be indirect or consequential only — as that of a citizen who is rated for taxes, or a pew-holder in a church, or member of a society — where the will makes bequests for the benefit of the poor of the county, or to charitable uses of such church or society, and by reason of its indirectness and uncertainty, the precise interest of such subscribing witness cannot be measured or ascertained so as to lapse into the estate, then the interest of the witness still does not disqualify him, but goes to his credit only.</p> <p>2. Where the heirs at law of a testatrix are remote collateials, and the legal question as to which of two sets of contestants be next of kin, is involved under the state of the law and rulings on the subject in doubt and difficulty, the mere fact that the testatrix, though knowing both contestants and their relation to her, yet had the prevailing-doubts, or even was mistaken in the matter of law at issue, would; not make the will inoperative as executed under a mistake of fact touching the existence of the heirs at law within the meaning of section 2403 of the Code.</p> <p>3. Where a will in one of the clauses thereof contained this provision, to-wit: “Item sixteenth — I hereby give and bequeath to such persons as I may name and indicate on a list to be signed by me, and folded up with this my will, and in the proportions and of the classes therein set forth, all my silver ware and piale of every description, said list to be taken as part of this my will and testament, and said persons therein named to be legatees under this clause or item of my will,” and after the death of testatrix a paper answering the description contained in said item, except that it bore date previous to the date of the will, was produced and filed with the will when offered for probate; and upon caveat filed the finding was in favor of the propounders generally, the petition of the executors^ the citation issued thereon, the verdict and the judgment making no special mention of said collateral writing as included in the probate; and neither in the caveat, nor in a subsequent motion for new trial by caveators, nor in their bill of exceptions to this court, was. any question made touching the indentity of said collateral writing, nor as to whether the same in reality was propounded, or under the law and the facts could be propounded and proven and put to record as part of the will itself; it is too late to raise these questions for the first time on final argument in this court.</p> <p>4. A will written upon separate and detached sheets of paper mav still be a good will, if the -writing propounded taken as one entire document, is in all its parts the identical testament made by the decedent. Where the -whole will is in writing, and all the forms of law were fully complied with for its execution and attestation, and the question of the identiiy of the several sheets propounded, with those on which the will was thus executed and attested, was fully and fairly submitted to the jury, the finding should not be distuibed unless some rule of law has been violated.</p> <p>5. In this case the verdict is contrary neither to law nor the evidence, but plainly accords with both.</p>

<p>1. Where suit was brought on a note for thirty-four dollars fora mu-le-r and the defense was a latent defect or want of soundness in the mule, known to the vendor and not to the vendee, and not communicated to the vendee, such defense will not operate to reduce the recovery-in the absence of proof going to show how much the defect reduced! the value of the mule, especially where the vendee had no express-warranty of soundness, and kept the mule nearly a year to make his crop without complaint, and took out an exemption from the ordinary for him.</p> <p>2. Where there is no service at all there is no suit, and there having been thus, for want of service, no suit in certiorari for more than three months, there is nothing- to be renew-ed within six months. 58 ffa.,147.</p>

Railroads. Jurors. Evidence. Practice in the Superior Court. Charge of Court. Damages. Negligence. Master and servant. New trial. Before Judge Simmons. BibbSuperior Court. April Adjourned Term, 1879. Mitchell sued the Central Railroad for damages. It appeared that he was an engineer on defendant’s road.

<p>1. A church incorporated by the superior court cannot as a corporation engage in the sale of tickets to the public for an excursion on board a steamer which the church has chartered for the occasion. Expenses incurred with a view to profit, and profits lost, cannot he recovered from the owners of the vessel on their failure to make the stipulated voyage. Excursions, as matter of trade or business with the public, are not within the means or ends for which the church was incorporated. The measure of recovery in a suit by the church against tne owners is the amount paid as hire for the vessel.</p> <p>2. When a vessel is chartered for an excursion, the price paid, and a receipt given, and the writing is silent as to the capacity of the vessel, and she is overloaded, and by reason of the overloading, together with the state of the weather, the excursion fails, parol evidence is admissible to prove that the price was fixed with reference to the carrying capacity for twelve hundred passengers, it appearing- that only about seven hundred went aboard, and that her g-overnment license restricted her to five hundred.</p> <p>3. Parol evidence is admissible to show for whom an agent failing to disclose his principal acted in making a contract, though it involve proof of the ownership of a vessel; but reputation at the port is not evidence of ownership, nor is information which the witness acquired by an examination of entries in the custom-house, neither the entries nor a copy of them being produced.</p> <p>4. When two are sued by attachment on an alleged joint contract, the evidence must establish a joint liability, or the plaintiff cannot recover.</p>

Insurance. Contracts. Yerdict. Before Judge Hillybr. Fulton Superior Court. September Term, 1878. Mrs. Ross sued the insurance company on a policy of insurance on the life of ¥m. H. Ross. The defendant-pleaded (1), the general issue; (2), that the insured had forfeited the policy by non-compliance with its terms ; (3), that plaintiff had forfeited dividends ; and (4), that if there was any recovery, unpaid premium notes must be deducted.

<p>[Waekee, Chief Justice, being engaged in presiding over the senate, organized as a court of impeachment, did not sit in this case.]</p> <p>Where the levy as entered on the fi fa. was upon one half of a certain lot of land, without specifying which half, or whether divided or undivided, and the court dismissed it for uncertainty, but not until after admitting all the plaintiff’s evidence, and where said evidence neither made out title in the defendant in fi. fa., nor possession by him of any part of the tract at or after the date of the judgment, there is no error. If the uncertainty of the levy could be and was aided by the claim affidavit and bond, still, as the evidence for the plaintiff failed to change the onus, there was nothing for the jury totry.</p>

Quo warranto. Pleadings. Elections. Before Judge Simmons. Bibb County. At Chambers. September 6,1879. Collins petitioned for the writ of quo warra/nto against Huff, the acting mayor of Macon. He alleged that on December 14,1878, an election for that position took place; that he received a majority of the legal votes, and that Huff’s election was not legal. This charge of illegality was based on three grounds: 1. That illegal votes were cast for ITuff.

<p>(.Wabneb, Chief Justice, being engaged in presiding over tbe senate, organized asa court of impeachment, did not sit in this case.]</p> <p>The action being in the short statutory form, with personal service on the defendant, and no defense made by plea or demurrer, and there being no allegation touching the date of the intestate’s death or of the grant of administration upon his estate, the statute of limitations was not in the case. The action was commenced in 1877, upon notes of the intestate, due in 1868, and upon an account ■dated in 1870.</p>

<p>Practice in the Supreme Court. September Term, 1879.</p> <p>On September 2d, 1879, counsel for Roberts et ux. obtained a mandamus nisi to compel Smith, clerk of Laurens superior court, to send up a record in the case of Roberts et ux. vs. Stanley et al. The mandamus was returnable on September 16th. On that day respondent answered, alleging various reasons why he did not send up the record. Among others he stated the following: The term of court at which said case was tried adjourned on February 28th, 1879, and the presiding judge took the papers, it being agreed that a motion for new trial should be made within thirty days, and decided without argument. On May 8th, a bill of exceptions was filed in office. Respondent went to resident counsel for plaintiffs in error, and asked for the papers, but failed to get them until May 16th, which left only two of the ten. days prescribed by law for sending up records — which tim¿ was not sufficient.</p> <p>Movants’ counsel made an affidavit showing that he had frequently endeavored to get the clerk to send up the record after the filing of the bill of exceptions, and .that the main ground of refusal or failure had been the non-payment of costs.</p> <p>Respondent’s counsel moved to discharge the rule, because it was not taken out in proper time, and because the Oconee circuit, to which the case would belong, having already been finished, a further prosecution of the rule would be useless. The court discharged it.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate, organized as a court of impeachment, did not sitin this case.]</p> <p>1. A note given on the 27th of April, 1877, for the price of a fertilizer, stipulated as follows: “It is expressly understood, agreed, and covenanted that said Leyden sells said fertilizer on the state inspect- or’s analysis as to quality and effect on crops, his brand being on every sack, and that I accept said inspection as final in regard to its quality, I waiving all pleas of failure of consideration.” The buyer pleaded failure of consideration, averring, among other things, “that the plaintiff did not furnish defendant with any analysis; that there was no analysis of the state inspector on any of the sacks; that the said fertilizer was not in sacks, barrels, or other vessels, so that they might be branded by the state inspector; and that defendant had no means of knowing the constituents of said fertilizer.”</p> <p>Held, that, on demur: er to the plea, these allegations were to be taken as true, and that so taking them, the seller did not in fact deliver the restricted guaranty which the contract contemplated, and that the parties were therefore remitted to the general warranty implied by law.</p> <p>Held, further, that it being a penal offense to sell a fertilizer not duly branded or m irked, no such sale can be the basis of a legal contract, and if the illegality be properly pleaded and proved, no recovery can be had foi the price.</p> <p>2. If the note sued upon stipulates for the payment of counsel fees, and a copy is attached to the summons in the county court, no claim for such fees need be expressly set out in the summons in order to render evidence as to the amount admissible.</p> <p>3. After verdict, it is too late to raise the question as to whether the jury trying the appeal ought to have been taken from the grand jury instead of from the petit jury.</p>

<p>1. The contest being between a judgment creditor of a trust estate and a renter who claimed cotton raised on land of the estate by him on the ground that he had paid the rent and the products of his labor belonged to him, the rent being a specified amount of money for which a note was given, evidence as to the usual rent in kind and the value of cotton was irrelevant.</p> <p>2. A trustee rented trust property and took a note for the rent, which he traded before due ; the original renter suib rented and took a note for the rent, which was paid. Cotton raised by the sub-tenant was levied on by one who had a judgment against the income of the trust estate:</p> <p>Held, that the rent note was the income, and the cotton was not subject.</p>

<p>[Warner, Chief Justice, being engaged as presiding officer of the senate upon an impeachment trial, did not sit in this case.]</p> <p>A constable charged with the execution of a possessory warrant, duly issued against specific property, has no discretion but to execute it, and whilst he holds possession lawfully, under such warrant, he is not liable to be sued in trover by the true owner.</p>

Criminal law. Husband and wife. Charge of Court, Before Judge Crisp. Sumter Superior Court. April Adjourned Term, 1879. Mitchell was indicted for bigamy, and charged with having first married one Rosa Marshall, and afterwards one Fanny Scrutchins, also known as Fanny Mitchell.

Injunction. Judgments. Claim. Before Judge Crawiford. Ohattahooehee County. At Chambers. July 3, 1879. John Pollard filed bis bill against Henry King, making substantially the ease set out in the head-note. He held under a purchase from Leroy Pollard, against whom the judgment was obtained in favor of King-. The injunction prayed for was refused and complainant excepted.

Injunction. Before Judge Crisp. Sumter County. At Chambers. May 2d, 1879. Hooks Sed bis bill against Brady et almaking, in brief, the following ease: Complainant sued out an attachment against Curtis Folks, which was levied on certain personalty, and Oscar Folks interposed a claim.

<p>1. Where the affidavit for attachment obviously means that the defendant is indebted to the plaintiff in the amount named, a clerical omission of the word is will not vitiate.</p> <p>2. The direction of attachment to sheriffs and constables, when it ought to be directed to constables only, is amendable; and the levy being made by a constable, the proceeding is not void.</p> <p>3. A physician is not obliged to charge for all his visits though he may have a legal and moral right to do so.</p> <p>4. Where there is no debt of another, present, past or prospective, there can be no collateral promise to pay it. The promise proved in this case was original, not collateral.</p>

Yerdict. Practice in the Superior Court. Before Judge Crisp. Lee Superior Court. March Adjourned Term, 1879. Plaintiff in error moved to set aside the judgment obtained against him by defendant in error, because it did not conform to the verdict on which i was founded. The court overruled the motion, and the fnovant excepted. For the other facts see the opinion.

<p>[Warner, Chief Justice, being engaged in presiding over the senate , organized as a court of impeachment, did not sit in this case.]</p> <p>1. Land under levy by execution founded on a general judgment, from a state court when the debtor filed his petition in bankruptcy, is not disengaged from the levy or the lien by a sale made by the assignee under an order to sell free from incumbrances, the order granted by the register (not by the judge), and granted without notice to or appearance by the plaintiff in the execution, and without his being named in the petition for the order or in the order itself, and without his lien being, in either, distinctly specified; his judgment never having been proved in bankruptcy, nor its lien submitted to that jurisdiction.</p> <p>2. The court may require levies upon personalty to be legally accounted for before acquiescing in a verdict in a claim case subjecting land; and the grant of a new trial not otherwise sustainable may be upheld because the levies upon personalty are neither disposed of by entries on the fi. fa., nor satisfactorily explained by the evidence.</p>

Judgments. Executions. Statute of limitations. Before Judge Wjbig-wt, Decatur Superior Court, May Term, 1879, An execution issued in 1867 was levied on certain property of one of the defendants therein (White,, and he filed an affidavit of illegality on the ground of dormancy. No entry appears on the fi. fa. from the date of its issuance until 1875. It was issued in the name of Butler, guardian,, against White and others.

Statute of limitations. Damages. Counsel fees. Jury. Practice in the Superior Court. Verdict. Before Judge Crisp. Dougherty Superior Court. April Term, 1879.

Ejectment. Amendment. Administrators and executors. Prescription. Before Judge Crisp. Dougherty Superior Court. April Term, 1879. The jury returned a verdict for tbe defendant. A motion for new trial was made upon numerous grounds, but tbe case turned upon the rulings of the court below on tbe amendments changing the character in which tbe plaintiff sued, and the effect of such change on the prescriptive title set up by defendant.

<p>1. A sale of goods to a trustee on liis individual credit, the seller not knowing of the trust, but the goods being, in fact, bought and used for the trust estate, and being suitable and necessary therefor, and the trustee as such afterwards having given his negotiable note for the unpaid balance of the price, and the complainant having purchased the note, the complainant is the owner of the balance of the account represented by the note, and is a creditor of the trust estate.</p> <p>S. The trustee, taking up the trust note by the substitution of his own individually, with a note on a third person given for rent, as collateral security, and afterwards collecting the rent and using it for the benefit of the trust estate, and both himself and the maker of the collateral note being insolvent, the trust estate is liable to the complainant in equity for the value of the rent so collected, or so much thereof as may be necessary to pay the trust note so taken up.</p> <p>3. The note of the third person for rent, having been turned over by the trustee and received by the complainant, as collateral security, also, for an account party made and partly to be made, by the trustee as an individual, with the complainant, for supplies suitable and necessary for the trust estate, the same rule applies in respect to said account as the rule above announced with reference to the trust note. The complainant can proceed in equity against the trust estate for the amount of the account as well as for the amount of the note.</p> <p>4. The remedy at law is less adequate and complete than in equity, there being complexity in the matter for adjustment, and a combination of trust and fraud ; also, a prayer for satisfaction out of income.</p> <p>7>. The bill need not charge that there is aet income, or what amount will be required for the beneficiary of the trust. Creditors are not put aside for beneficiaries.</p> <p><§. Charges sufficient as to suitableness of goods, that they were needed, and that the trust and the beneficiary took the benefit.</p> <p>7. Prayer of the bill broad, but too much prayer will not exclude from appropriate relief.</p>

Assignment. Contracts. Evidence. New trial. Before Judge Simmons. Bibb Superior Court. April Term, 1879. Block sued Lawhon in a justice court and garnished Peter. The latter answered not indebted, and that he had no goods in liis hands belonging to the defendant; that the latter had made an assignment to him for the benefit of his creditors, and that he had the goods so assigned intiustfor the purposes of the assignment. The answer was traversed.

<p>1. Where the main object of the litigation is to ascertain and settle authoritatively the amount which each distributee has been advanced by the intestate, the verdict should find the several amounts specifically. The law, and not the jury, determines whether advancements shall be accounted for. In the present case the amounts are material, and should be .set forth in the verdict no matter whether they are equal or unequal.</p> <p>2. It is not sufficient to bar an accounting that the intestate believed he had advanced his distributees equally, if in fact he had not done so.</p> <p>3. Where one of several distributees releases a co-distributee from accountability for advancements, whether with or without consideration, the release is operative as to all persons whose rights are not prejudiced by it; and it is also operative as against the releasor until she repudiates or disaffirms it. If, in a pending case, it is set up to her disadvantage, and she elects not to be bound by it, this election and the grounds on which she resists or attacks the release must be alleged in the pleadings.</p> <p>4. When the defendants in a bill are entering on the final trial of their case under a decree requiring them to interplead, it is not competent for one of them to vary the pleadings by amendment so as to raise questions with the complainant in the bill touching the amount of the fund, waste, etc.</p> <p>5. After a decree that the defendants interplead, the complainant in the bill, if he seeks no further relief, is not entitled to be heard in argument at all, much less to be heard in conclusion.</p>

<p>Where it is sought to make one liable by reason oí the acceptance of a draft by his agent, he is not rendered incompetent to testify to the ■want of authority in the agent to make such acceptance on account of the death of the drawer, the accepting agent and payee being both in life.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>A. judgment which the court was competent to'render without the verdict of a jury, will he upheld if found entered on the minutes in the day’s proceedings, the minutes of the day being regularly signed by the judge, though the judgment itself bear only Ihe signature of counsel. Such a judgment is irregular, not void, and can he amended.</p>

Husband and wife. Promissory notes. Pleadings. Before Judge IIillyer. Henry Superior Court. April Term, 1879. J. J. Tingle brought complaint in the short form on a promissory note against Craige. The copy note attached was payable to E. A. Tingle. The declaration was amended by making the action proceed in the name of J. J. Tingle for the nse of certain creditors of E. A. Tingle, deceased. On tlie trial, the note was tendered in evidence. Defendant’s counsel objected.

Equity. Yendor and purchaser. Prescription. Statute of limitations. Before Judge Crisp. Dougherty Superior Court. April Term, 1879. The bill in this case was filed by Irvin, as administrator upon the estate of James Bond, deceased, against McLaren, for an account and settlement of the balance of purchase money due for land. Pending the litigation, McLaren died, and his administrator was made a party in his stead.

<p>Practice in the Superior Court. Yerdiet. Judgments Before Judge Hillyer. Upson Superior Court. May Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>1. An ordinary distress for rent, implies that the plaintiff is the landlord, and on that theory Driver vs. Maxwell, 56 Ga., 11, was decided. When the landlord does not distrain, but the proceeding is by his assignee under the act of 1873, both the contract and the assignment must be set out or described in the affidavit., as otherwise the parties are apparently mere strangers. A demand for payment, as to rent due, should also bo alleged, or some excuse stated for the omission.</p> <p>2. As the landlord’s special lien dates from the maturity of the crop, and his general lien from the levy of a distress warrant, a mere transfer of a note given for rent, which transfer is made in writing before either of these events happens, is not an assignment of any lien.</p> <p>3. The cases of Greer vs. Woolfolk, 60 Ga., 633, and Brown vs. Alfriend, 61 lb., 13, are consistent. Taken together, they hold that a distress warrant for more than two hundred dollars may be issued by the county judge, and may, when contested, be returned either to the county court, or the superior court.</p> <p>-1. When animals or other personalty on the premises, are let with the same, by one entire contract, for use in cultivation, the whole sum is rent and may be collected by distress.</p>

<p>Landlord and tenant. Homestead. Practice in the Supreme Court. Before Judge Simmons. Bibb Superior Court. April Term, 1879.</p> <p>After the argument of this case was concluded, and the decision of the court made up, though not delivered, counsel tor plaintiff asked permission to withdraw the writ of error. This the court refused to permit. See 41 Ga., 523. The facts are sufficiently reported in the opinion.</p>

Practice in tlie Supreme Court. Municipal corporations. Biligence. Before Judge Hillyer. Fulton Superior Court. October Adjourned Term, 1878. Wilson brought case against tbe city of Atlanta for $10,000.00 damages alleged to have been sustained by him under the following circumstances : He was driving two horses attached to his buggy, in which were himself and three small children, on Harris street, in said city, on June 30,1875.

<p>A judgment debtor, with the consent of his wife, conveyed land to another creditor as a security for his debt, taking a bond for re-conveyance on payment thereof ; subsequently his wife had the land set apart as a homestead. The holder of the security recovered judgment, filed a deed, and had the land levied on and sold :</p> <p>Held, that the homestead was good as against the senior judgment, but not as against the junior; and in a contest over the fund arising from the sale, the latter would have precedence.</p>

<p>Pleadings. Vendor and purchaser. Set-off. Husband and wife. Warranty. Before Judge Crawford. Taylor Superior Court. April Term. 1879.</p> <p>Reported in the opinion.</p>

<p>New trial. Practice in the Superior Court. Practice in the Supreme Court. Before Judge Hood. Terrell Superior Court. November Term, 1878.</p> <p>Reported in the opinion.</p>

<p>[Warner, Chief Justice, being engaged in, presiding over the senate-organized as a-court of impeachment, did not sit in this case.]</p> <p>1. The defendant having a mill-pond, and the plaintiff owning lands-at the head of the pond, said lands- extending up the stream to and beyond a certain fence, and the controversy being both as to whether the pond in fact damages the premises above the fence, and whether,, if it does, the defendant has a right to inflict the damage, and an action similar to the present having been brought in 1875, and a recovery therein had by the plaintiff against the defendant, the judgment in that case is at least prima fade evidence against any right in the defendant which was or might have been litigated in that suit- the two actions differing only in this, that the former applied to damages alleged to- have been sustained in and after April-, 1878, and the latter to damages alleged to have been sustained in and after June, 1875.</p> <p>2. A covenant stipulating that water shall- not be raised so- as to damage certain land, and' if raised in the winter, shall be taken- off in-time for the crop in the spring, contemplates actual damage to the-land; still, if the water be wrongfully raised in the winter and not taken off in the spring in due time, the owner of the land may have-at least nominal damages for the vindication of his right.</p>

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 because the court refused to allow the jury to be polled, holding the motion for that purpose too late, although made before the verdict was recorded or the jury had dispersed.

Criminal law. Indictment. Burglary. Title. Before Judge Mershon. Camden Superior Court. May Term, 1879. Morgan was placed on trial for tlie offense of burglary alleged to have been committed by breaking and entering the dwelling house of one Rose Taylor. The evidence showed that the house was rented by the husband of Rose Taylor, and occupied by him and his family. It was not shown from whom he rented, but there was no pretense that he held under her.

<p>Practice in the Supreme Court. February Term, 1880.</p> <p>Reported in the decision.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. When a motion for a new trial is made in term, and by consent of parties an order is taken to perfect the brief of evidence, by a specified day, in vacation, and to hear the motion on that day at chambers, the judge sitting at chambers on and by successive adjournments, after the appointed day, has full possession of the matter, and with or without consent, may give such further time to complete the brief and prepare for the hearing as he deems proper in view of the cause shown. In 59 6a., 626, no motion for a new trial was made in term, and consequently enough was not done to comply with section 3719 of the Oode. In 57 6a., 193, there was no action in vacation within the time designated by the consent order as entered on the minutes.</p> <p>2. The charge of the court was pertinent, full and correct. There was no material omission; and no error in refusing the request to charge which was not given. And the verdict is supported by the evidence.</p>

County matters. Illegality. Tender. Before Judge Lawson. Baldwin Superior Court. February Term, 1879. A criminal bond was forfeited and fi.fa. issued. Perry & Denton, the sureties, filed an affidavit of illegality to it on the ground that they had tendered to the sheriff the full amount of the judgment in county scrip or orders, drawn by the ordinary on the county treasurer in favor of the sheriff for insolvent costs. The case was submitted to the court without a jury.

Equity. Debtor aud creditor. Discovery. Principal and agent. Before Judge Crisp. Randolph Superior Court. May Term, 1879. Nussbaum & Dannenberg filed their bill against Theodore Heilbron and Julius Heilbron making, in substance, this case : In the summer and fall of 1877, Theodore Heilbron was carrying on a mercantile business in the town of Cuthbert, in tbe name of “ J. Heilbron,” meaning thereby Julius Heilbron.

<p>Garnishments. Judgments. Practice in the Superior Court. Before Judge Underwood. Floyd Superior Court-March Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>Criminal law. Indictment. Jury. Tippling-house. Evidence. Charge of Court. Oertiora/ri. Before Judge Wright. Dougherty County. At Chambers. July 18, 1879.</p> <p>Minor was placed on trial in the county court for the offense of keeping open a tippling-house on the Sabbath-day, and also for retailing without license. He was convicted in each case. He presented petitions for the writ of certiorari, alleging as erroneous the rulings set forth in the opinion. The writs were refused, and he excepted.</p> <p>The cases were argued together in this court.</p>

Equity. Practice in the Superior Court. Before Judge Hood. Early Superior Court. April Térra, 1879. Mrs. Hays filed her bill against Urquhart, alleging, in brief, as follows : She was the holder of a promissory note due by one King, January 1st, 1874, payable to herself as bearer.

<p>Ejectment. Title. Deeds. Registry. Before Judge Crawford. Talbot Superior Court. March Term, 1879.</p> <p>Reported in the opinion.</p>

Insurance. Equity. Contracts. Before Judge Fleming. Chatham Superior Court. May Term, 1879.

<p>Certiorari. Searcli warrant. Possessory warrant. Before Judge Wright. Mitchell Superior Court. May Term, 1879.</p> <p>Ganey’s petition for certiorari made the following case :■ Claton sued out a possessory warrant against him for one spotted sow-hog. ILe pleaded res aj-adicata, in this that on. March 10,-1879, said Claton had sued out a search warrant against him for the same hog, and after trial before Shackleford, J. P., the property was ordered turned over to petitioner, and he was thus placed in possession.</p> <p>The plea was overruled and petitioner excepted.</p> <p>.He then moved to discharge the warrant because the affidavit upon which it was founded did not state that the hog in controversy was in the county of Mitchell.</p> <p>This motion the court refused and he excepted.</p> <p>After tiie introduction of testimony the court awarded the possession to the plaintiff in the warrant, and petitioner again excepted.</p> <p>On the hearing in the superior court, the certiorari was sustained, and it was further ordered that the constable deliver the property to Ganey on his giving bond and security as required by law.</p> <p>To this' judgment Claton excepted. The remaining facts, so far as material, are stated in the opinion.</p>

Guardian and ward. Parent and child. Witness. Evidence. Judgment. Estoppel. Before Judge Buchanan. Floyd Superior Court. March Adjourned Term, 1879. Cleghorn petitioned the ordinary of .Floyd county to be appointed the guardian of bis orphan niece, Minnie II. -Scott. Janes objected upon the following grounds; 1.

<p>t Warner, Chief Justice, being engaged in presiding over the senate organized as acourt of impeachment, did not sit in this case.]</p> <p>The confessions of the defendant are sufficiently corroborated by the circumstances proven, and by the fact that the deceased was unlawfully killed, to authorize a conviction of guilty as principal in the second degree; the charge is not erroneous; the verdict is supported by sufficient evidence ; tbe presiding judge approves it, and this court has uo legal authority to reverse the judgment overruling the motion for a new trial.</p>

<p>Injunction. Judgments. Levy and sale. Contracts. Before Judge Simmons. Sumter County. At Chambers. August 95, 1879.</p> <p>Report unnecessary.</p>

<p>Criminal law. License. Before Judge Hillyer. Fulton County. At Chambers. March 4th, 1879.</p> <p>Reported in the decision.</p>

<p>[Wabnee, Chief Justice, being engaged in presiding over the senate organized asa court of impeachment, did not sit in this case.]</p> <p>1. Where, by consent of parties a cause involving both law and fact is tried by the judge without a jury, and the judgment is excepted to generally, with no specification as to whether the error intended to be alleged was a mistaken finding on the facts, or an erroneous ruling upon some point of law, a copy of the documentary evidence as well as a brief of the oral evidence must be brought up. It is not enough that the bill of exceptions represents that certain writings, such as exemplifications from other courts, showed so and so, not reciting the contents but only stating the supposed legal effect.</p>

Corporations. Parties. Injunction. Mortgages. Before Judge Hillyer. DeKalb County. At Chambers. October 20, 1879. Elder, as administrator of his wife, hied his bill against Henry ei al. It alleged, in brief, as follows: The Stone Mountain Granite and Railway Co's, stock was divided into shares of $1,000 each. Of these W. A. Richardson held 58 shares, M. C. Richardson 15, J. F. Henry 5. All these live in Kentucky, the others in DeKalb county.

'Criminal law. Master and servant Principal and agent. Before Judge Lester. Pickens Superior Court. April Term, 1879. Forrester was placed on trial for the offense of retailing without license. He pleaded not guilty, but the jury found to the contrary. A motion for new trial was made because the verdict was contrary to evidence and to law. The motion was overruled and defendant excepted.

<p>Injunction. Tax. Before Judge Simmons. Bibb County. At Chambers. October 6, 1879..</p> <p>Several loan and building associations filed their bill against the tax collector .and the sheriff, to restrain the collection of certain taik.fi. fas. for the years 1875, 1876, 1877 •and 1878, which were being enforced against them. They alleged various irregularities in the manner of assessment and levy, that some of them had ceased to do business before such assessment, and that all of them were exempt from such taxes. As a special ground of equity, the nature of their operations (installments .paid by stockholders, sale of money, having no actual capital accumulated, not doing a banking or brokerage business, etc.) were set out, and it was alleged that payment of the tax on their nominal stock, even if it could be ultimately recovered from the officer, -would irreparably interfere with the orderly working .of the associations. The chancellor granted the injunction as to the t-ax for 1876, but refused .it as to the other years. Both parties excepted.</p> <p>The t-ax acts for each of the years named imposed •a tax on building and loan associations and other companies or associations doing a banking or brokerage business, etc.; the act of 1876 also contains a proviso that •no tax should be required of loan and building associations upon any of its capital which had been loaned or advanced to shareholders on real estate upon which taxes would be payable by the shareholder.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. Where there is a bond for titles taken, part of the purchase money paid, and a negotiable security given for the balance, and the security is transferred for value without indorsement, and the holder sues upon it and obtains judgment, the case of Neal vs. Murphy, 60 Ga., 388, is in point; but where the maker of the bond transfers a judgment which has been rendered in liis favor for the purchase money, Upchurch vs. Lewis, 53 Ga., 621 is in point.</p> <p>2. There was no error in granting the injunction.</p>

Criminal law. Verdict. Before Judge Underwood. Paulding Superior Court. February Term, 1879. Johnson was indicted for assault with intent to rape. The evidence showed that one Sarah Cole was awakened at night by having some one place his hand over her mouth; that she threw up her hand and felt the kinky hair of a negro ; that he grabbed her by the feet and pulled her to the door; that she screamed and he ran.

Husband and wife. Alimony. Before Judge Erwin. Clarke Superior Court. February Adjourned Term, 1879.

Ejectment. Prescription. Fraud. Before Judge Lester. Lumpkin Superior Court. April Term, 1879. Bullock brought complaint for land'against Farrow. He claimed under a regular chain of title from the state down to himself. Defendant claimed a prescriptive title. The evidence in his behalf was as follows : 1. W. M. Patton, who testified as follows : Had known the lot twenty-two years. Peter Walker was.in possession in 1856.

New trial. Newly-discovered evidence. Before Judge Lester. Forsyth Superior Court. February Term, 1879. Roach was placed on trial for the offense of assault and battery alleged to have been committed on Wilkie, on January 15, 1877. He pleaded not guilty. The following comprises all the evidence introduced, the defendant offering none: C. O. Elliott: Saw the difficulty between defendant and Wilkie. It was at Frogtown, on the 15th of January, 1877.

<p>i. Sale of property covered by a mechanic’s lien executed by the owners and lessors of said property, and foreclosed, should not be enjoined at the instance of a creditor of the lessee of the property who holds a younger mechanic’s lien on the interest of tjie lessee for the completion of work which the lessee had bargained with the lessors to have completed — especially where the holder of the junior lien had notice of the older lien.</p> <p>2. If there wore doubt as to the piiority of liens, the property should . be sold and Uie contest be made over the proceeds of sale; and the mere allegation that from the condition of the times the properly would not bring its full value is no equitable ground for injunction.</p> <p>3. If both liens were on the whole property under contract with the-owners thereof, the older would be the better lien, and unless attacked as invalid for some legal or equitable reason, the sale under the older lien should not be enjoined at the instance of the junior ■ creditor.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.'I</p> <p>1. Where two executors qualify, and one dies intestate chargeable with assets, the survivor may call his representatives to account, as well for a devastavit by the deceased executor, as for assets remaining in specie, certainly so if the provisions of the will he such as to render it impracticable for the survivor to execute the general testamentary scheme without having control of all the resources of the estate.</p> <p>3. After the representatives of a deceased co-executor who died intestate, have duly accounted with the survivor, without fraud or collusion, the general legatees are bound, and cannot hold said representatives to account over directly to them.</p>

<p>1. The answer of the justice of the peace untraversed, will be alone considered by the superior court on the hearing of a oertiorwri, no motion being made for a further return.</p> <p>2. Where the only issue presented therein is that of fraud or no fraud on the part of claimant in an alleged purchase of property attached, and the evidence, though conflicting, authorized the finding of the justice of the peace, and the affirmance thereof by the superior court, this court will not interfere.</p>

Usury. Promissory notes. Pleadings. Corporations. Before Julcge Wright. Dougherty Superior Court. April Term, 1879. The loan association brought comjffaint on notes against Pattison, for $784.50, besides interest. He pleaded as follows: 1. The general issue. 2. Plaintiff pretends to he acting under a charter granted by the superior court upon a petition alleging that $1,000.00 capital stock had been paid in, which was not true.

<p>Where the head of a family had set apart as exemption certain farm products which were afterwards used and consumed in the purchase of provisions, clothing and other necessaries, for the use of himself and family, to enable them to make a crop the next year, the crop so made would be exempt, especially where it does not appear to be greater than the original exemption.</p>

<p>Indorsement. Promissory notes. Presumption. Before Judge Mershon. Glynn S'uperio-r Court. May Term, 1879.</p> <p>Lehman brought complaint against Habersham on a note for $300.00 payable to the order of Eppinger & Russell,, dated June 12th, 1878, and due at ninety days. It was indorsed as follows : “ Eppinger & Russell, by A. Cyraixr Attorney.” “ Pay C.H. Dexter, cashier, or order, for collection on account of Atlanta Savings Bank of Georgia. (Signed) Lodovick J. Hill, Cashier.” The defendant pleaded the general issue, .and specially the following facts: The note sued on was fraudulently procured from defendant in place of a uon-negotiable note previously given by him to the payees for certain improvements made on property of his rented by the payees. At the time said payees obtained the first note from defendant,, a distress warrant against them in his favor for $400.0(1 was pending, for the rent of certain wharf property. The said note was given for improvements placed by the payees upon this property, it being agreed that it should remain in-the hands of the payees until the termination of the litigation on the distress warrant, so that if they were held liable for the rent they could apply it in part payment of the judgment which would be obtained. It was contracted that-in no event should they transfer the note, and to secure this end it was made non-transferable. The litigation arising on the distress warrant is still pending; but said payees* tired of keeping their contract, came to defendant, and, by fraud, obtained the note sued on in place of the first, and immediately transferred it to the plaintiff.</p> <p>Defendant further says that the plaintiff is only an agent", of the payees, who are t-lms seeking to avoid their contract-under the willing complicity of plaintiff as an innocent and. Iwnafide holder.</p> <p>When the plaintiff offered the note sued on in evidence, objection was taken on the ground that it showed no title out of Eppinger & Russell, unless a power from theta to “A. Cyraix, attorney,” be shown; and further, that the second indorsement showed the note to be the property of the Atlanta Savings Bank’ The objections were overruled, and defendant oxccptod.</p> <p>Mr. Goodyear, of counsel for plaintiff, testified'to the-following facts: In taking the first note defendant remarked that he desired it made with time enough to reach over the approaching May term of the court when the distress warrant would be tried. Witness supposed it to be a negotiable note, and under this impression delivered it to-Russell, one of the payees. A few weeks after, he returned it to witness and said he could do nothing with it as it was not negotiable, though given as negotiable paper. Witness told him that he bad no doubt it was an oversight of defen- ■ dant’s, and he would undertake to procure a negotiable instrument in its place. Defendant wanted additional time, so witness drew the note sued on at three months and defendant signed it. He had full opportunity to read it. The first note was destroyed. The plaintiff had no knowledge of the conversations or transactions referred to.</p> <p>The jury found for the plaintiff. The defendant moved for a new trial on the following grounds :</p> <p>1st. Because the verdict was contrary to law and evidence.</p> <p>2d. Because the court refused to charge as follows : “ If the jury find, from an inspection of the note, an indorsement of the original payees’ names, and al.-o the following indorsement: £ Pay to the order of O. H. Dexter, Esq., cashier, for collection on account of Atlanta Savings Bank of Georgia. (Signed) Lodovick J. Iiill, Cashier,’ and found no other indorsement on the note,-then the note without further evidence, would be presumed to be the property of the said Atlanta Savings Bank and the plaintiff could not recover from the defendant.”</p> <p>3d. Because the court erred in charging that when a plaintiff in this class of cases, introduces a promissory note in evidence, he is entitled to recover uni ess the defendant introduces evidence to rebut the prim,a facie case thus made out.</p> <p>4th. Because the court overruled the objections to the introduction of the note sued on, as stated above.</p> <p>5th. Because the court charged the jury that the defendant’s plea of fraud in the procurement could not avail him unless his evidence showed that the plaintiff was a party to, or was cognizant of, the fact of the fraud ; that fraud in the procurement, as contemplated by law, related only to the original maker and payee, or that notice of the fraud was brought home to him.</p> <p>The motion was overruled, and defendant excepted.</p>

Evidence. New trial. Before Judge IIillyek. Fulton Superior Court. September Term, 1878. To the report contained in the decision, it is only necessary to add that two of the groxxnds of the motion for new trial were as follows': 1.

Criminal law. Jeopardy. Before Judge Tompkins. Chatham Superior Court. February Term, 1879. At a special term for the trial of criminal cases, held in the county of Chatham, in the month of April, 1878, Johnson and Small were placed on trial for the offense of murder, alleged to have been committed upon one McDermott. The former was found guilty of murder, the latter of voluntary manslaughter.

<p>Homestead. Before Judge Hillyer. Pulton Superior Court. March Term, 1879.</p> <p>Reported in the decision.</p>

<p>Criminal law. Arson. Evidence. ‘ New trial. Before Judge Lester. Cobb Superior Court. March Term, 1879.</p> <p>Reported in tbe opinion.</p>

<p>1. An indictment for the crime of aiding and assisting a prisoner irían attempt to escape from the custody of an officer, need not set out the individual names of those comprising the officer’s posse, and-the state may prove that defendant obstructed either of the posse while the prisoner was attempting to escape, though his name be not set out in the indietment.</p> <p>2 The offense charged is a crime, not an attempt to commit one, and therefore this case is not affected by section 4674 of the Code.</p> <p>3. The attempt of the prisoner to escape continues as long at least as-he is fleeing and the officer and posse are in sight and in hot pursuit, and the act of impeding- the pursuit by holding or obstructing any of the posse so in pursuit, is within the offense described in §4483 of the Code.</p>

<p>Garnishment. Attorney and client. Common carriers. Before Judge Crawford. Muscogee Superior Court. November Adjourned Term, 1878.</p> <p>Reported in the opinion.</p>

Equity. Practice in the Superior Court. Evidence. Charge of Court. Witness. Husband and wife. Before Judge Simmons. Pike Superior Court. April Term, 1879. To the report contained in the opinion it is only necessary to add that the following were among the grounds of the motion for new trial: 1. Because the court held that complainants could not amend their bill so as to waive discovery after ascertaining what was the answer of defendant, although it had not been filed. 2.

Process. Appeal. Judgments. Practice in the Supreme Court. Practice in the Superior Court. Before Judge ITood. Terrell Superior Court. May Term, 1879. On August 14, 1877, the execution mentioned in the opinion was levied by the sheriff of Terrell county upon certain lands as the property of James W. Powell. To a part of this land a claim was interposed by Thomas W. Powell.

Evidence. Practice in the Superior Court. Charge of Court. New trial. Before Judge Bartlett. Pike Superior Court. April Adjourned Term, 187S. A fi. fa. in favor of Barker against G. B. M. Blount was levied on certain land, part of which was claimed by G. H. Blount. On the trial, the following evidence was introduced : 1. G. B. M. Blount testified as follows: I was the administrator on the estate of Thomas Barker, father of plaintiff.

New trial. Practice in the Superior Court. Claim. Attachment. Amendment. Before Judge Hillyer. Fulton Superior Court. October Term, 1878. Purtell sued out an attachment returnable to the justice court of the 1026th district, G. M., against Warren, which was levied by a constable on certain personalty, to which a claim was interposed by Mrs. Warren.

Administrators and executors. Practice in the Superior Court. Presumptions. Before Judge Wright. Mitchell Superior Court. November Adjourned Term, 1878. Dasher, ordinary, for the use of certain children of Mary E. Walker, deceased, brought suit on the bond of the administrator, alleging mismanagement of the estate, etc. On the trial the main issue was as to certain land which the administrator had sold.

<p>Practice in the Supreme Court. Parties. September Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Title. Deeds. Contracts. Before Judge Craweord. Chattahoochee Superior Court. March Term, 1879.</p> <p>Keported in the opinion.</p>

Injunction. Parties. Practice in the Supreme Court. ■September Term, 18S0. Jordan and others filed +heir bill against Frances C. Jordan and Kelly & Brothers, making, in brief, this case: Complainants were remaindermen in certain land, of ■which the defendant, Frances C. Jordan, was the life-tenant. In 1875 she conveyed the most valuable portion of this land to Kelly & Brothers, its chief value being derived from the timber thereon.

<p>1. After the assignee of a bankrupt has set apart certain property to him as a homestead, and the custody of the property has passed out of the bankrupt court, the wife of such bankrupt can take a valid homestead in the property.</p> <p>2. Debts due the state are not good againt a homestead, unless for taxes.</p>

Statute of frauds. Contracts. Before Judge Hall. Newton Superior Court. September Term, 1878. Whilst this case was pending in this court the defendant in error died, and his executor was made a party in his stead. The facts will be found in the opinion.

<p>Illegality. United States Courts. Before Judge Lester. Lumpkin Superior Court. April Term, 1879.</p> <p>Reported in the opinion.</p>

Husband and wife. Debtor and creditor. Sales. New trial. Before Judge Crawford. Muscogee Superior Court. May Term, 1879.

Waiver. Homestead. Mortgage. Before Judge Crawford. Taylor Superior Court. April Term, 1879. Smith and wife brought complaint for land against Shepheard. The case was tried on an agreed statement of facts, substantially as follows: On the 6th day of December, 1875, William Smith, one of the plaintiffs, made application for a homestead, alleging that he was the head of a family consisting of himself and wife, Sarah. It was not acted upon until the 31st August, 1877.

Criminal law. Indictment. Charge of Court. Before Judge Hood. Randolph Superior Court. November Adjourned Term, 1878. To the report contained in the decision it is only necessary to add that the following were among the grounds of the motion for new trial : (1.) Because the indictment charged the murder of Hamp Jones, and did not state that he was also known as Hamp Culbreath. (2.) Because the court made an addition to his written charge.

Administrators and executors. Jurors. Practice in the Superior Court. Appeal. Evidence. Courts. Husband and wife. Charge of Court. Before Judge Fleming. Chatham Superior Court. February Term, 1879. The following, taken in connection with the decision, sufficiently reports this case’: This is a contest for the administration of the estate of William Rose. 1. H. D. Headman claims it for several reasons. First, he was a friend.

<p>An agreement to pay part of a debt at some indefinite time in discharge of the whole, is not performed by paying part of the stipulated sum. Granting- t-bat by accepting what was paid, the creditor would be bound to accept the balance if tendered in a reasonable time, no tender was made in the present case, and no good excuse shown for the omission, even taking the evidence of the debtor himself.</p>

Practice in the Supreme Court. Ejectment. Title. Non-suit. Before Judge Crisp. Dougherty Superior Court. April Term, 1879. Dupon et al. brought ejectment against McLaren, administrator. Of the evidence it is only necessary to state that plaintiffs claimed as heirs at law of one Lamar, but it. did not appear whether they were the only heirs, or if not, how many there were. The court granted a non-suit, and plaintiffs excepted. For the other facts, see the opinion.

<p>Where a corporation was chartered for tlie purpose of insuring the lives of its members upon the payment by each, of such sum or sums as might be prescribed by the laws and regulations of the company, and the charter provided that the amount due upon the decease of a member should be paid to the person or persons entitled to the same according to the by-laws, or to such person or persons as may have been designated by his last will, and that in all cases the same should he free from any debt, contract or liability of the deceased member, and not subject to' any lien against him by judgment or otherwise, and where, according to the by-laws adopted, tlie amount to be paid by the company in consequence of the death of a member, and the time of payment, were dependent, not upon any separate contract between the corporation and the member, but upon the general provisions of the by-laws themselves, the liability of the corporation to make payment according to the charter and by-laws is a statutory liability, and the period of limitation applicable to an action to enforce payment is twenty years.</p>

<p>.[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. A contract establishing the relation, of landlord and tenant for one year, though made before the year begins, may be in parol.</p> <p>2. If within the statute of frauds, possession thereunder and payment of rent for two months would take the contract out of the operation of the statute.</p> <p>3. The evidence is conflicting, but there is enough to support the verdict, and in such case .this court will not control the discretion of the judge who tried the case and refused the new trial.</p>

<p>Judgments. Levy and sale. Claim. New trial. Before Judge Simmons. Houston Superior Court. May Term, 1879.</p> <p>Reported in the opinion.</p>

<p>![Wabnee, Chief Justice, "being engaged as presiding officer of the senate in an impeachment trial, did not sit in this case.]</p> <p>'The defendant in execution, arresting the same by illegality on the ground that he was not served in the suit, must allege in his traverse of the return of the sheriff, and prove, that he made such traverse at the next term of the court after he had notice of the sheriff’s return; especially where he is sworn as a witness.</p>

<p>Railroads. Tax. Corporations. Lien. Before Judge Speer. Fulton Superior Court. April Term, 1879.</p> <p>Reported in the decision.</p>

<p>[Wabneb, Chief Justice, being engaged as presiding officer of the senate in an impeachment trial, did not sit in this case.]</p> <p>Where some of the facts proven by the plaintiff show negligence and indifference on the part of the proprietor of a toll-bridge, engaged in repairing the same, to the safety of a passenger crossing the bridge on foot, by direction o£ the toll-keeper to whom he had paid fare in the morning to recross in his buggy in the evening, and other facts tend in some degree to rebut the conclusion that there was such negligence, it is for the jury, and not for the court, to settle the doubt arising from such conflict; anda non-suit should not be awarded.</p>

<p>Equity. Judgment. Practice in the Supreme Court. Practice in the Superior Court. Before Judge Gibson. Richmond Superior Court. October Adjourned Term., 1878.</p> <p>Reported in the decision.</p>

Practice in the Superior Court. Attorney and client. Lien. Appeal. Claim. Homestead. Amendment. Practice in the Supreme Court. Before L. T. Downing, Esq.? Judge pro hao vice. Muscogee Superior Court. May Term, 1879. An execution from the county court of Muscogee county was levied on certain personalty as the property of J. W. Kimbrough, and was claimed by him as the head of a family.

Realty. Personalty. Contracts. Evidence. Deeds. Before Judge Crawford. Talbot Superior Court. March Term, 1879.

Jurisdiction. Evidence. Railroads. New trial. Before Judge Simmons. Houston Superior Court. May Term, 1879. Brunson brought two suits against the Central Railroad in Houston county court for about $150.00.

<p>Habeas corpus. Ordinary. Jurisdiction. County Matters. Before Judge Harris. Wayne County. At Chambers. April 3, 1879.</p> <p>Moore applied for the writ of habeas corpus requiring Roberson, the sheriff of Wayne county, to show cause why he should not surrender to petitioner the possession of certain minors, petitioner’s children. The writ was issued and Roberson replied that he held the minors for the purpose of carrying out the judgment of the ordinary of said county on a proceeding by habeas corpus instituted by Mary A. Moore. To this answer the petitioner demurred, upon the ground that the ordinary had no jurisdiction to issue the writ of habeas corpus, or to hear and determine the same, and therefore his judgment was a nullity. Judge Harris, of the superior court, overruled the demurrer and refused the discharge, whereupon the petitioner excepted.</p>

<p>Evidence. Sheriff. Damages. Presumptions. Yer-dict. Before Judge Crawford. Muscogee Superior Court. May Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Judgment. Illegality. Before Judge Simmons. Pike Superior Court. April Term, 1879.</p> <p>Reported in the opinion.</p>

<p>1. Though an illegal arrest be made in Stewart county, yet if the person arrested be forcibly taken to Randolph county and there illegally detained, the latter county has jurisdiction to try the offense of false imprisonment, that offense being also complete by the unlawful detention in Randolph county, under sections 4364, 4365 of the Code.</p> <p>"2. If a person be arrested as a fugitive from justice from another state by a private person without warrant, he must be carried, without delay, before the most convenient officer qualified to receive an affidavit and issue a warrant, and if he be detained beyond a reasonable time without being carried before such officer, the person arresting or detaining him commits the offense of false imprisonment, especially if the person arrested and detained be not the alleged fugitive, but an innocent man, and his detention ,be accompanied with maltreatment, such as force and chains.</p> <p>■3. The verdict is supported by law and evidence.</p>

<p>Criminal law. Indictment. New trial. Before Judge Wright. Dougherty County. At Chambers. February 21, 1879.</p> <p>Reported in the opinion.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>Where, after a mortgage upon realty has been foreclosed, the mortgagee files a bill in equity to enforce his rights under the judgment of foreclosure, and has a receiver appointed to take charge and possession of the realty, but the receiver fails to reduce all the realty to possession, and the fact that all was not in the possession of the receiver not being brought to the notice of the court, a decree was had in the equity cause and a sale under the decree, the person in adverse possession of that part of the land which the receiver had not reduced to possession not having been made a party to the bill, the court of equity, in confirming the sale, will not, upon mere motion or petition, order such adverse holder removed, where his possession was acquired before the bill was filed, though it be in proof that he came in possession as a purchaser under the mortgagor and after the judgment of foreclosure at law, but prior to the decree under which the sale was had.</p>

Landlord and tenant. Distress warrant. Illegality. Before Judge Lawson. Jones Superior Court. April Term, 1879. Good, Small & Company sued out a distress warrant ■against McCulloch for rent.

<p>Ejectment. Misnomer. Amendment. Trust. Deeds. Registration. Charge of Court. New Trial. Before Judge Crawford. Muscogee Superior Court. November Adjourned Term, 1878.</p> <p>Ejectment was brought on the demises of Joseph Jefferson, George H. Peabody and George Foster Peabody, against Mary E: and E. M. Murphy, tenants in possession, for two lots of land known as numbers two and three in a village near and above the city of Columbus, laid off by Seaborn Jones. The defendant, Mary E. Murphy, pleaded, in substance, as follows:</p> <p>On the — day of --- the title of the premises was in Jefferson. On that day he sold the same to Adela Arnold, who paid the purchase money therefor, went into possession, and so remained until hei; death, which occurred on the — day of-. At the time of the purchase she said to Jefferson that she wanted the place to go to a little son of George Peabody after her death, and the deed was so-made, to-wit: to said Adela for life, with remainder to-said son. Neither George Peabody, nor his son, was in any way related to said Adela, nor was she bound in any way to provide for either. After the dea.th of said Adela, letters of administration upon her estate were granted to Russell, who, after obtaining the usual and proper order, and after having duly advertised the same, sold the property to defendant for-dollars, she being the highest and best bidder, and placed her in possession of the premises, where she has so remained ever since. She bought without notice, actual or constructive, of any deed to Peabody or to any one else. No such deed was ever recorded. She is a Iona fide purchaser without notice, and Peabody is a mere volunteer, and therefore, in equity and good conscience, is not entitled to said land as against her. Wherefore she prays that plaintiff be enjoined from the further prosecution of said action against defendant for the recovery of said land.</p> <p>Plaintiff subsequently amended the count on the demise of George Foster Peabody, by changing the name wherever it appeared to that of Charles J. Peabody.</p> <p>The jury found the premises in dispute in favor of 'Charles E. Peabody.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Injunction. Officers. Tax. Municipal corporations. Before Judge Hillyer. Clayton County. At Chambers. .April 22,1879.</p> <p>Report unnecessary.</p>

<p>[Wakheb, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case ]</p> <p>1. Where the declaration is both upon a promissory note and the written contract on which the note is founded, a copy of each being annexed, and the execution of neither is denied by the defendant, a special plea to the action should be construed in the light of both instruments.</p> <p>2. The written contract signed by the defendant, being in relation to a fertilizer “ known as the W. & C. Superphosphate, manufactured by the New Jersey Chemical' Company,” a plea that the defendant believed and was assured that he was getting a genuine article of Watson & Clark’s guano fertilizer, with no averment that there was any fraud or mistake in the writing, or that Watson & Clark’s guano fertilizer was the samé as that known as the W. & O. Super-phosphate, manufactured by the New Jersey Chemical Company, is an attempt to set up a parol stipulation inconsistent with the written contract, and for that reason was properly stricken.</p> <p>3. Where a fertilizer was described in the written contract between the parties as “known as the W. & C. Superphosphate, manufactured by the New Jersey Chemical Company,” and the same contract stipulated as follows : “It is hereby expressly understood, covenanted and agreed, in consideration of the time granted and the method allowed for paying for, said fertilizer, that the sellers do not in any way warrant the quality of said fertilizer or its beneficial effects upon crops, but that the same is sold with all faults at the risk of the purchaser,” a plea alleging that the vendors represented and warranted that it was a genuine and true article of Watson & Clarke’s guano or fertilizer,” and that upon the faith of such representation and warranty the defendant was induced to purchase, is inconsistent with the terms of the writing, and therefore inadmissible.</p> <p>4. Where the purpose is to set up the illegality of a contract as a defense, the illegality should be plainly and distinctly pleaded, together with the fact or facts which render the contract illegal. To allege, as a part of a plea going to the worthless quality of a fertilizer, that the fertilizer was never in fact inspected by the inspector appointed under the laws of Georgia, with no allegation that it was not properly branded, is not sufficient to put either the plaintiff or the court on notice that the legality of the sale is to be drawn in question as a separate substantive defense.</p>

<p>Criminal law. Indictment. Before Judge Crawpordc Muscogee Superior Court. May Term, 1879.</p> <p>Reported in the opinion.</p>

<p>[Wahhier, Chief Justice, being engaged in presiding oyer the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. A deed recorded on the attestation of a justice of the peace and one other witness, with an attestation clause containing the words signed and sealed, but omitting the word delivered, if not admissible in evidence without further proof, is admissible on proof of the hand-writing of the maker and of each of the subscribing witnesses, together with evidence that all three are dead, the deed .itself coming from the custody of the vendee.</p> <p>2. The record of a deed since lost, is not admissible even as color of title, without due proof of the execution of the original, if the record was made without authority of law on insufficient probate or attestation.</p> <p>3. Whether the defendant in complaint for land went in under the plaintiff or was a mere squatter, the plaintiff could recover on his. prior possession.</p>

<p>New trial. Practice iu the Superior Court. Before Judge Crawford. Harris Superior Court. October Term, 1878.</p> <p>Sufficiently reported in the opinion.</p>

Injunction. Husband and wife. Judgment. Married women. Before Judge Hood. Randolph County. At Chambers. April 12, 1879. Mrs. Lewis filed her bill against Gunn, alleging, in brief, as follows : She is the widow of John B. Lewis, who died in 1877. In 1872 she became possessed, by inheritance from her father, of 62 acres of land, being part of lots 146 and 147, in Randolph county; and under the will of a deceased uncle, she received lot No. 241, in Early county.

<p>During the trial of a claim case in the superior court of Greene, a-record was produced by the claimant, showing that the original judgment (from a subsequent judgment reviving which the plaintiff’s A fa. issued) was rendered in that court on a declaration to■ which no defense was filed, and which alleged that the defendant (an executor, and sued as such) was “ formerly of said county, but now of the county of Richmond and state aforesaid, who waives the want of jurisdiction of this the said circuit of Ocmulgee, and selects the same for suit to be brought,” and said declaration having indorsed thereon an acknowledgement of service by the executor, in which he declared, ' ‘ I waive the want of jurisdiction, and select; Greene county, said state, for suit to be brought</p> <p>Meld, that the court did not err in dismissing 1he levy on claimant’s motion.</p>

<p>£ Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. Where judgment has heen rendered in a state court against a national bank, and upon the execution issued thereon a return of nulla dona has been made by the sheriff of the county where the bank is located,' and the bank has ceased to discharge its functions as a fiscal agent of the United States, and is disposing of its assets which cannot be reached by levy and sale under the common law execution, among its stockholders, thereby endangering the safety of those assets and the judgment debt of the creditor, equity will relieve by the grant of injunction and appointment of a receiver.</p> <p>2. Until a receiver has been appointed by a federal court, wherein the interposition of equity to settle the affairs of a national bank was invoked,and to appoint a receiver to take charge of its assets,neither law nor comity requires the state court to suspend its equitable remedy to reach the assets of the bank and enforce its own final process until the.federal court shall act; especially where in the federal court the case is made by the stockholders of the hank, and the judgment creditor is not made a party thereto.</p>

<p>Contracts. Ambiguity. Evidence. Before Judge Simmons. Pike Superior Court. April Term, 1879.</p> <p>Reported in the opinion.</p>

Criminal law. Practice in- the Supreme Court. New trial. Newly discovered evidence. Before Judge JjAwson Wilkinson Superior Court. April Term, 1879. Latimore was placed on trial for the offense of burglary. To the indictment he demurred because it embraced two totally distinct and incompatible offenses, to-wit: burglary in the night-time and simple larceny. The demurrer was overruled. The trial resulted in a verdict of guilty.

Constitutional law. Homestead. Before Judge Lawson. Putnam Superior Court. March Adjourned Term, 1879. On December 30th, 1878, Fannie Beall, the widow of 'George C. Beall, deceased, applied for a homestead under the constitution and act of 1868. The petition showed the •death of her husband, in October, 1877, that the realty in which the homestead was prayed belonged to his estate, and that she was the head of a family.

<p>1. Mistake in the given names of the defendants in execution are amendable on motion. Such amendment does not involve the loss of any entries on the fi. fa. as means of preventing dormancy of the judgment. If the record of the case is wanting or incomplete, and the original papers are lost, the court may look to the statement of the parties as found on the minutes, in connection with the verdict of the jury there recorded, and make the fi. fa. conform thereto in respect to the given, names of all of the defendants. A. motion to quash the fi. fa. where the defect is amendable and where the amendment is moved for and ordered to be made, was properly overruled.</p> <p>2. Where &fi.fa. from the superior court was issued in 1861, which has been kept alive by entries and returns, but for some cause unexplained no record of the case, except of the verdict on the minutes, is to be found in 1879, and the original papers are lost, the fi. fa. may proceed as between the parties thereto without supplying the record or establishing copies of the papers. In respect to purposes which a fi. fa. may serve without actual production of the judgment, the presumption is that there was a valid and regular judgment entered on the verdict, unless the contrary appears.</p>

<p>Practice in the Supreme Court. Dismissal and reinstatement. Providential cause. Before the Supreme Court. September Term, 1879.</p> <p>Reported in the opinion.</p>

Appeal. Jury. Practice in the Superior Court. Waiver. Before Judge Lawson. Baldwin Superior Court. February Term, 1879. This case came to the superior court on appeal from the justice’s court of the 320th district, G. M. The jury was stricken from the two regular panels of petit jurors.

Equity. Injunction. Debtor and creditor. Assignment. Practice in the Superior Court. Before Judge Snead. Richmond Superior Court. April Term, 1879.

Criminal law. Assault and battery. Charge of Court. Before Judge Clark. City Court of Atlanta. April Term, 1879. Hill was placed on trial for assault and battery. The evidence made substantially the case presented by the opinion. The jury found him guilty. He moved for a new trial upon the following grounds : 1. Because said verdict was contrary to law, and contrary to the evidence. 2.

<p>[Waemee, Chief Justice, being engaged in presiding over the senate organized tus court of impeachment, did not sit in this case.]</p> <p>1. A homestead in the undivided half of real estate belonging to a firm, may be set apart to the wife of one of the partners, the husband not applying therefor himself, but consenting to the wife’s application, and such homestead will be valid against general creditors of the firm.</p> <p>2. If the partnership was formed prior io the constitution of 1868, such homestead will not be valid against the other partner’s objecting thereto for balances due him on account of the transactions of the firm ; but before the creditor can be subrogated to the rights of the other partner, he must make, by his pleadings, such a case as will entitle him in equity to be so subrogated.</p>

<p>Quo warranto. Elections. Justice of the Peace. Before Judge Speke. Rockdale County. At Chambers. May 28, 1879.</p> <p>Reported in the opinion. .</p>

Principal and surety. Equity. New Trial. Before Judge Buchanan. Campbell Superior Court. February Term, 1879. Torrance filed his bill against Cook and Moore to compel them to contribute as co-seeurities to the payment of a debt which he alleged that he had paid for the principal. The jury found for the defendants. Complainant moved for a new trial on various grounds. It was refused and he excepted. For the other facts see the opinion.

<p>1. An indictment, for murder is good, though it omits to charge that deceased was “in the peace of the state,” and that defendant was “of sound memory and discretion.”</p> <p>2. Defendant’s statement on a former trial is admissible against him. -</p> <p>3. A juror who answers ail the statutory questions so as to qualify is prima facie competent, and if defendant object afterwards to his competency he must try him and prove him incompetent.</p> <p>4. A brother of one who contributed money for the arrest of defendant and for the employment of counsel, and aided thus the prosecution, may entertain the jury at night by order of the court, he being jailor, and being in the habit of doing so in all criminal cases; and it appearing by deposition that the jury were under charge of the bailiff all the while, and that the jailor had no communication at all with them, and never had taken any part in the prosecution, the court was right not to set aside the verdict for this cause.</p> <p>5. The defendant having made no confession of guilt in the case, and only an admission that he was present when the deceased was shot, witli protestations of his innocence of any participation in the crime whatever, it was error to charge the jury that “all admissions should he scanned with care, and confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction.”</p> <p>6. A new trial will not he granted on the ground that one of the jury was not impartial, on the deposition of one witness who swore to the statement of the juror against defendant-, when the juror denied on oath making the statement, and swore to his perfect impartiality and freedom from any bias.</p> <p>7. Acknowledgments of his presence by the defendant, without any promise or hope held out to him by the witness, are admissible, though the witness received the defendant from a detective who had held out the promise to him that he would protect him from all danger.</p> <p>8. There is no error in charging “if- after an honest and impartial examination your minds are wavering, unsettled, unsatisfied, that is the doubt of the law, and you Should acquit; if that doubt does not exist, you should convict.” ■ .</p>

Appeals. Laws. Practice in tbe Superior Court. Amendment. Damages. Interest. Yerdict. Before Judge Underwood. Floyd Superior Court. March Term, 1879.

<p>Injunction. Levy and sale. Claim. Judgments. Before Judge Lester. Lumpkin County. At Chambers. May 28, 1879.</p> <p>Reported in the opinion.</p>

Practice in the Superior Court. New trial. Landlord and tenant. Damages. Before Judge Harden. City Court of Savannah. May Term, 1819. Freidenburg & Co., who were tenants of Jones et al., executors, brought case against the latter for damages arising from the leaking of water from the upper floor of the building, which was not occupied by plaintiffs, into that portion which they did occupy.

<p>{Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. The indictment not being demurred to, and the evidence being that the father of the minor was dead, and that he had no guardian, and his mother gave no permission to sell liquors to him, this case does not fall within the ruling in Newman vs. The State, and Heyman vs. The Slate, decided this term.</p> <p>3. Where the indictment sets out the names of the grand jurors who found it with reasonable accuracy, leaving no doubt of the identity of person, any slight mistake in their names on the minutes is immaterial, and may be corrected at any time.</p> <p>3. Immaterial evidence should be excluded, and objections to material evidence will not be considered to operate as error if the same evidence in substance afterwards gets before the jury.</p> <p>4. The sale of spirituous liquors to a minor is sufficient to convict of the offense, unless the defendant, after due inquiry, was honestly mistaken in respect to the minor’s age, and to show such mistake, while the dealer need not inquire of the parent alone as to the age of the person to whom he sells, yet he must exercise special diligence to ascertain the truth ; and such diligence will not be manifested by inquiry of the minor alone, or of such persons as have no better means of knowing than the dealer, but it must be of such persons as to satisfy the jury that the inquiry was honest and not a mere subterfuge or.cover for crime.</p> <p>5. The defendant has a right to make his statement, and to that statement the jury may give such weight as in their judgment it may be entitled to, dependent ordinarily upon its consistency, its naturalness and its inherent probabilities; and a charge to that effect was not erroneous — certainly not, prior to the act of 1879; and this offense and trial were before that act.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>In determining upon tlie boundary line between two tracts of land, tbe jury are not obliged to govern tbeir finding by marked trees, and recent surveys coincident therewith, rather than by corners or fixed points on the land, recognized by former proprietors as true places of the boundary, and surveys which conform to them. The right location of the boundary line, in the present case, was a question of pure fact, and the evidence justified the verdict.</p>

Usury. Title. Notice. Mortgage. Deeds. Equity. Before Judge IIood. Terrell Superior Court. May Term, 1879. Wheelock had certain fi.fas. levied on land as the property of Lee efe Eulton. Johnson & Smith claimed the property under deeds from defendants in fi. fa. These deeds were held not to convey title because they formed part of a usurious transaction.

<p>Service. Practice in- the Supreme Court. September Term, 1879.</p> <p>Reported in the opinion..</p>

<p>Equity. Judgments. Res.adjudicata. Homestead. Before Judge Hood. Miller County. At Chambers. October 25, 1879.</p> <p>Reported in the opinion.</p>

<p>An action for breach of promise to marry is personal, and dying with the person it does not survive after death of plaintiff; marriage of the parties as effectually kills the action as death; therefore, after marriage of plaintiff and defendant, counsel for plaintiff cannot prosecute the action for fees.. Public policy and the whole spirit of our legislation in encouragement of marriage, as well as strict law, forbid the further prosecution of the suit for such purpose.</p>

<p>Criminal law. Charge of court. Before Judge Clark. City Court of Atlanta. March Term, 1879.</p> <p>Reported in the decision.</p>

<p>Equity will not interfere by injunction with an exemption of personalty at the instance of a judgment creditor who has a lien only on the reversion thereof.</p>

United States Courts. Jurisdiction. Bankrupt. Before Judge Clark. Eulton Superior Court. March Term, 1879. Complainants brought their bill to recover of defendants-certain property. The bill showed that complainants claimed by virtue of being assignees of West, Edwards & Co., bankrupts. On motion the bill was dismissed for want of jurisdiction in the state court where it. was brought. Complainants exceptéd.

Charge of Court. Criminal law, Before Judge Lester, Cobb Superior Court. March Term, 187&. Brewster was indicted for an 'ssault with intent to murder, committed upon one Kolb, with a pocket-knife.

Practice in the Supreme Court. Indictment. Criminal law. Jurors. Practice in the Superior Court. Before Judge Clark. City Court of Atlanta. June Term, 1879.

<p>1. Section 1959 of the Code of 1868 gave to mechanics alien upon “improvements made by them” on property “without regard to the title ” to such property. ' '</p> <p>3. "When a brick-layer completed his contract to do the brick work of a brick house, he made improvements on the premises in the sense of the said section of said Code.’</p> <p>8. Where the mechanic contracted to do the work with the occupant of the premises in possession thereof and controlling the same, and did the work for him and recorded his lien on the house as the house and premises of the party in possession who contracted with him, the said lien, so far as it operated on the improvement made by said mechanic, was not lost because the occupant did not have the absolute title to the premises, but attached to the improvement so made without regard to the title, under said section in said Code, which at the date of the lien was the law.</p> <p>4. While under the decision of this court in a claim case between these parties, it was held that the 'brick improvement of the house alone could not be separated from the work of the carpenter thereon, and separately sold to the serious injury of the property, yet on a bill in equity filed by the mechanic against the true owners of the property and the occupant, alleging the insolvency of all of said defendants, including the occupant and contractor with complainant, and exhibiting to the bill the lien, its_ legal record and foreclosure, the claim case, its pendency, and the impossibility of subjecting and selling the improvement by itself at law, and the inadequacy of any remedy at common law, equity will intervene, and either order the sale of the entire property and pay the mechanic the value of his improvement in proportion to the value of the whole premises, or secure an adequate share of the rental thereof for his payment.</p> <p>5. The- lessee not having been made a party nor his insolvency alleged, so as to exclude the possibility of a recovery at law, nor the fact alleged that the occupant was not, but defendants were the real owners of the property, the judgment overruling the demurrer to the bill is reversed, with leave, if so advised, to complainant to amend and make the lessee a party, and charge his insolvency, if true, and that he is not, but defendants are the owners of the property, which being done, the demurrer will be overruled.</p> <p>Bleckley, Justice, concurred specially.</p>

Witness. Evidence. Payment. Charge of Court. Before Judge Lester. Cobb Superior Court. March Term, 1879. Sewell instituted proceedings to foreclose a mortgage executed by Phillips to secure the payment of a promissory note, made by the Marietta Paper Mill Company, on June 25, 1862, due on January 1st next thereafter, for $5,000.00? and indorsed by him. Phillips pleaded payment of various amounts during the years 1869-1877, an itemized statement of which was set forth.

<p>1. Where the administrator of an estate was also the guardian of one of the distributees.-and in the latter capacity receipted to himself as administrator for a eertain amount received from the estate, and •made corresponding returns as guardian, and.on the basis thereof the ordinary rendered a judgment finding the amount due by the ■guardian to the ward, such proceedings would 'be prima facie but not conclusive evidence of indebtedness as against the sureties, in an action on the guardian’s bond.</p> <p>2. The verdict being toolarge by $44.42, under the evidence, the judgment will be reversed unless that amount be written off.</p>

<p>Roads and bridges. Ordinaries. Jurisdiction. Before Judge Hood. Terrell Superior Court. May Term, 1879.</p> <p>Brown et al. sought to have obstructions removed from an alleged private way by petition to the ordinary. The order was granted, and defendants carried the case to the superior court by certiorari. The court sustained the certiorari, and plaintiffs excepted.</p> <p>For the other facts see the opinion.</p>

<p>New trial. Before Judge Simmons. Houston Superior Court. May Term, 1879.</p> <p>Reported in the opinion.</p>

Contracts. Charge of Coart. Before Judge Lawson. Wilkinson Superior Court. April Term, 1879.

<p>Distress warrant. Practice in the Superior Court. Before Judge Mershon. Glynn Superior Court. May Term, 1879.</p> <p>Reported in the opinion.</p>

Homestead Mortgage. Notice. Before Judge IToon. Early Superior Court. April Term, 1879. This was a claim case, submitted to the court without a jury, on an agreed statement of facts, in substance, as follows : On February 1, 1869, Mary Yann, as head of a family of minors, had set apart as a homestead part of lot No. 151, in Miller county.

<p>1. It was error for the court to charge that the statement of the defendant in criminal cases “and in this case,” is not sufficient, as a general rule, to overcome the testimony of a sworn credible witness. The jury should be left free to give to the statement in the case on trial such credence as they might think proper.</p> <p>2. Evidence that a witness forcibly placed defendant’s foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible. A defendant cannot be compelled to criminate himself by acts or words.</p>

<p>Where the insured has conveyed the premises consumed absolutely in fee before the iusurance was effected, but is litigating to set aside the deed, and the litigation has been finally terminated against him before the loss occurs, he cannot recover on the basis of the entire value of the insured buildings; and in order to recover on the basis of his liability for mere profits, or of the value of the possession,. or of the right thereto until the writ of possession is issued and there is actual ouster by the sheriff, there must be evidence of such, liability, or of the value of such possession, or of the value of such . right of possession.</p>

<p>County matters. Tax. Statute of Limitations. Before Judge Lawson. Jasper Superior Court. April Term, 1879.</p> <p>Reported in the decision.</p>

<p>1. When the accused is at large on bail at the time of trial, his bail is not a competent juror to try him if objected to by the state. It is a ground of challenge for cause.</p> <p>2. Unfriendly feeling towards J,he accused by the father-in-law of the prosecutor, is not relevant evidence in behalf of the accused, though the prosecutor be an inmate of his father-in-law’s family.</p> <p>3. On the trial of an accessory after the fact for receiving stolen goods, Ihe record of the conviction of the principal on a plea of guilty, though conclusive evidence of the conviction, is only prima facie evidence of the principal’s guilt, and a charge to the jury that it is conclusive upon the principal of his guilt, so far as it affects him, is irrelevant and improper. It is conclusive of guilt for no purpose connected with the trial of the accessory, if the latter chooses to controvert it.</p> <p>4. After the principal has been sentenced to six months in the chain-gang with a money alternative of twenty dollars fine, a like sentence upon the accessory, with a money alternative of two hundred dollars, is not violative of section 4488 of the Code.</p>

<p>Written instruments. Corporations. Parties. Amendments. Before Judge Wright. Dougherty Superior Court. April Term, 1879.</p> <p>Reported in the opinion.</p>

<p>1. An assignment of a chose in action must he in writing. The meaning of a legal assignment is a transfer of title or interest by writing.</p> <p>2. Where a county judge failed to answer a certiorari, there was no error in the court’s stating to cohnsel for defendant in eertiorwi that unless he would waive the answer the case must be continued.</p>

<p>Jurors. Attorney and client. Set-off. Actions. Plead- . ings. Before Judge Buchanan. Coweta Superior Court. March Terra, 1879.</p> <p>Dickson brought an action of trespass guare clausum fregit against Melson. Defendant pleaded as follows :</p> <p>(1) The general issue.</p> <p>(2.) That he was ' the owner of the premises and had a right to enter. That the different counts of the declaration ■referred to the same transaction, which was this : Plaintiff was a tenant of defendant on the premises, and agreed to pay him §600.00 on November 1st, 1875, as rent from September 1st, 1874, to the close of the year 1875. This he failed to do, and defendant sued out a warrant to dispossess him. He failed to give any bond and stop the proceeding according to law. Defendant was accordingly put in possession, and of course received the crops, cultivated them to maturity, and used them when gathered.</p> <p>(3.) Set-off of certain personalty in possession of plaintiff belonging to defendant, which the former had appropriated and refused to deliver up.</p> <p>(4.) Set-off, because of the entry by plaintiff on the place, pending defendant’s possession, and the carrying away by him of part of the crop and certain other personalty.</p> <p>(5.) Set. off of two notes held by defendant against plaintiff. This plea alleged that plaintiff was utterly insolvent and unable to respond to any separate judgment which might be obtained against him; it therefore prayed that these claims be allowed as a set-off.</p> <p>On motion the court struck all the pleas which sought to set off matters arising ex contráctil, and from damage to or conversion of personal property.</p> <p>On the trial, the following facts appeared : On August 24th, 1870, Freeman, who then owned the land involved in this suit, made a bond for titles to plaintiff (Dickson); part of the purchase money was paid and the balance w-as not. Defendant (Melson) was a creditor of plaintiff, and was pressing him for payment. A settlement was arrived at by which plaintiff assigned to defendant the bond for titles from Freeman, on September 1st, 1874. On the same day defendant received from plaintiff a rent note for the place for $600.00, due November 1st, 1875, and certain purchase money notes, and gave him a bond to make a title to him upon payment of such purchase money notes. It is two of these three notes which defendant pleaded as a set-off. Defendant paid the balance due Freeman and took a deed from him on January 8th, 1875. In 1876 defendant sued out a warrant to dispossess plaintiff, and upon his failing to give bond as provided by law, he was dispossessed, and defendant received possession. He took entire charge of the place, gathered the crops and used them.</p> <p>Plaintiff insisted that he was not a tenant of defendant, but a purchaser of the place ; that he was unable to give bond, and that his eviction was a trespass. The rent note for $600.00 he explained by saying that it was merely a ruse adopted by him and defendant for the purpose of keeping off other creditors who would otherwise interfere with his crop, in order that he might, under cover of this claim, gather his crop and pay defendant; he denied that any rent was due, or that the note was bona fide. On these points the evidence was in direct conflict.</p> <p>There was much other conflicting evidence as to values, etc., not material here.</p> <p>The jury found for plaintiff $512.50. Defendant moved for a new trial, on the following, among other grounds :</p> <p>(1.) Because the court refused to strike the names of four persons from the traverse jury from which- the jury that tried said case was taken, for cause, it being shown that two -of said jurymen were brothers to two of plaintiff’s attorneys, one a first cousin, and one an uncle of the wife of one of said attorneys. Defendant averred, and offered to show,, that said attorneys were interested in the event of the suit, and were to have a part of the' money recovered as a fee,, and nothing if they failed to recover. The court refused to allow said showing to be made, and defendant' exhausted four of his strikes on said jurymen.</p> <p>(2.) Because the court struck the pleas of set-off.</p> <p>(3.) Because the court refused to non-suit the plaintiff' on motion of defendant’s counsel.</p> <p>(4.) Because the verdict was' contrary to law and the evidence.</p> <p>The motion was overruled,' and defendant excepted.</p>

<p>[Waknek, Chief Justice, being ensagei in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>A declaration in attachment, which describes the defendant as defendant in attachment, sets out the note which is the evidence of debt, and alleges that an attachment has been issued thereon, concluding with a prayer for process, and omitting any further description or reference to the attachment, mentioning no property whatever, is defective in substance, but amendable, even after judgment, by the attachment papers of file in the court, and constituting a part of the record of the cause. Let the substantial defects be cured by actual amendment within a reasonable time, on pain of having the judgment opened and the declaration dismissed.</p>

<p>1. If it be competent in a criminal case to prove by one witness wliat another, since deceased, testified on the committing trial, a proper foundation must first be laid by showing that the witness proposing so to testify professes to remember the substance of the entire testimony as to the particular matter about which lie testifies.</p> <p>2. There was sufficient evidence in this case to support the verdict.</p>

<p>The prosecutor having been stabbed in the back from behind while holding, with his left hand, the prisoner’s father-in-law by the wrist, and in his right hand an open knife raised over him, and the court, on the prisoner’s trial for an assault with intent to murder, alleged to have been committed by the act of stabbing, having charged the jury that, ‘-'in all cases of voluntary manslaughter there must be some actual assault upon the person killing by the person killed:”</p> <p>Held, that so restricted a statement of the' law of manslaughter was not appropriate to the facts of the case. The court should have completed the sentence in which these words are found (Code, §4335) by adding, “ or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and exclude all idea of deliberation or malice, either express or implied.”</p>

<p>1. The refusal to strike an amendment to a declaration which did not alter the status of the case nor work the admission of any evidence which would not have been admissible under the original declaration, will not necessitate a new trial.</p> <p>2. Where the facts do not warrant a charge upon the subject of the statute of limitations, it should not be given.</p> <p>8. Where one buys cotton stored in certain houses, from a member of a firm, and in removing it by himself or agents, gets cotton belonging to the firm in another house, openly and under claim of right as a part of the trade, such a taking is>not a felony for which the firm must prosecute before they can recover in a civil action therefor.</p> <p>4. A new trial was properly refused.</p>

Criminal law. Bonds. ■ Scire facias. Lost papers. Practice in the Superior Court. Before Judge Harris. Camden ■Superior Court. May Term, 1879. The solicitor-general proceeded to forfeit a bond in a ■criminal case, in which W. T. Spencer was principal and S. A. Spencer was security. The original bond having been lost after being made and filed (as was stated in the order establishing a copy), a copy was established on motion, and upon it the 'proceedings to forfeit were based.

Witness. Evidence. Practice in the Superior Court. Advancements. Contracts. Before Judge Simmons. Pike Superior Court. April Term, 1879. Mrs. Parks brought trover against Harper to recover a piano. Plaintiff claimed under, a written contract between her and the deceased wife of-, defendant, who was also the daughter of plaintiff.

<p>New Trial. Before Judge Lawson. Greene Superior Court. March Term, 1879.</p> <p>Kicklighter and wife brought case against the Georgia Railroad for a personal injury to the latter. On the trial the evidence showed that Mrs. Kicklighter was a passenger on defendant’s train on July 24th, 1877; that near Union Point the engine ran over an ox, jumped from the track and caused the train to be wrecked ; that Mrs. Kicklighter was injured seriously, perhaps permanently, about the breast and spine, besides minor injuries, without fault on her part. There was also other evidence for plaintiffs tending to show that the train was behind time, and was running faster than its schedule time ; that a careful watch would have detected the ox on the track in time to have prevented the accident; and that the whistle, was not blown nor other signal given, and that there was no apparent slacking of the speed of the train before the accident occured, but, on the contrary, that the engineer increased the speed and sought to throw the obstruction from the track. Also that Mrs. K. was about twenty-six years of age, and (by mortuary tables) the probable length of life.</p> <p>The evidence for defendant tended to show that owing to the nature of the ground, the oy could not have been seen by the engineer at a distance, and that when near it the engine obstructed his view ; that when the ox got upon the track and was discovered by the fireman, it was very near; that the fireman notified -the engineer, and both did ' all they could to stop the train, but it was too near, and the accident resulted.</p> <p>The jury found for plaintiffs $2,500.00. Defendant moved for a new trial on various grounds, among others that the verdict was contrary to law and evidence, and because of newly discovered evidence to show Mrs. Kick-lighter’s age. This ground was supported by the affidavit of one Brooks that Mrs. K. was born in 1849, and that of Jno. C. Reed, Esq., of counsel for defendant, that he did not know of this evidence until after the trial, and that he used all diligence in the conduct of said cause.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Equity. Trusts. Specific performance. Contracts. Consideration. Before Judge Tompkins. Chatham Superior Court. October Term, 1878. ¿</p> <p>This case is fully reported in the opinion.</p>

<p>Equity. Claim. Amendment. Before Judge Hillyer. Clayton Superior Court. March Term, 1879.</p> <p>Reported in the decision.</p>

Ilnsband and wife. Principal and surety. Contracts. .Before Judge Clark. City Court of Atlanta.

<p>Equity. Before Judge Simmons. Houston Superior Court. May Term, 1879.</p> <p>Reported in the decision.</p>

<p>Distress warrant. Pleadings. Before Judge Simmons. Houston Superior Court. May Term, 1879.</p> <p>Reported in the opinion.</p>

Injunction. Judicial interference. Tax. Before Judge Hillyer. Fulton County. ' At Chambers. July 5, 1879.

<p>1. That a copy of the Code was carried into the jury-room will not necessitate a new trial, where it appears that the jury had already agreed upon their verdict, and procured the Code only for the purpose of putting the finding in proper form.</p> <p>2 The evidence was sufficient to warrant a conviction, although circumstantial.</p>

<p>[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]</p> <p>1. In claim, cases in tlie justice courts, unless it appears from the record that the plaintiff in execution was claiming interest — the principal being fifty dollars — or that the property claimed was worth more than fifty dollai s, the remedy by certiorari will be upheld.</p> <p>2. Though a woman be married prior to the constitution of 1868 and the woman’s act of 1806, yet her acquisitions subsequent to those enactmenls are her own separate estate, and the marital rights of her husband do not attach thereto.</p> <p>8. Tlie question of fact being in doubt whether the money which paid for the property claimed was acquired before or subsequent to the act of 1866, the superior court was right to remand the case for a new trial.</p>

<p>[Warmer, Chief Justice, being engaged in presiding over the senate organized asa court of impeachment, did not sit in this case.]</p> <p>A railroad company completing the transportation of freight, be"un by other common carriers whose lines are connected will the r road by an intermediate line or lines, may, for its own security, exact the production of the bill of lading before making delivery of the goods to the consignee. At all events, where, in such case, the consignee has never'had actual possession of the goods, he cannot obtain possession of them by possessory warrant against such railroad company, without producing the bill of lading or showing that its non-production would leave no liability on the part of the company to abona, fide assignee of the same.</p>

<p>[Warner, Chief Justice, being engaged in,presiding over the senate-organized as a court of impeachment, did not sit in this case-.]-</p> <p>A declaration alleging to the effect that a father, as trustee for two. minors, owned a certain business-house wherein he carried on a certain business- in. trust for said children, and bought of plaintiff articles necessary for such business; that the creditor was, when he furnished the goods, ignorant of the trust, and credited to some extent the father, but ascertained that he was and is insolvent, and really bought and used the goods in and about the trust business, and thereby made profits which wrenl into the trust property by way of repair and improvements, and into the purchase of otherreal estate for-the said; children, with an exhibit attached containing copies of the trust papers, setting out in detail and,-with much particularity the above-allegations and praying for the subjection of a sufficiency of the trust property to pay the debt so incurred and used, and so beneficial to the trust estate, is not demurrable, but may be prosecuted to verdict, and judgment at law may be so moulded as parties, under the Code of Georgia, §§3377-3383.</p>

Arbitrament and award. Practice in the Superior Court. Fraud. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1879. Harper and Black had a controversy about certain land. The former claimed that he had bought of the latter 240 acres at $7.50 per acre ; the latter claimed that the sale was of 200 acres at $9.00 per acre. Harper also claimed that the land was less than it purported to be, and that he should have certain credits allowed him in settlement.

Master and servant. Contract. Recoupment. Evidence. Before Judge Wright. Dougherty Superior Court. April Term, 1879. To the report contained in the opinion it is only necessary to add that the following were among the grounds of the motion for a new trial: (1.) Because the verdict is contrary to law and the evidence.

<p>M. had wrongful possession of a watch belonging to H. B., a detective, telegraphed to JET. that he could recover the property for $50.00. She replied that she would send the money. In the meantime M. sent the watch by express to H. B. arrested M., and by imprisonment caused him to have the watch returned before delivery by the express company:</p> <p>Held, that possession so obtained was illegal, and a lien for services did not attach to the property.</p>

Mortgage. Judgments. Before Judge Snead. Mc-Duffie Superior Court. March Term, 1879. This was a money rule against the sheriff for the distribution of a fund in his hands. The facts were as follows: Myers & Marcus and others held judgments against Overton. Richards & Bro. and Pitts held unrecorded mortgages upon the goods which produced the fund, of older date than the judgments.

<p>Amendment. Pleadings. Justice courts. Administrators and executors. Statute of limitations. Before Judge Johnson. Jefferson Superior Court. November Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>- Administrators and executors. Estates. Debtor and •creditor. Estoppel. Equity. Pleadings. Before Judge Crisp. Lee Superior Court. March Term, .1879.</p> <p>Reported in the opinion.</p>

Municipal corporations. Canals. Non-suit. Before Judge Snead. Richmond Superior Court. April Term, 1879.

Garnishment. Bonds. Principal and surety. Damages. Officers. Before Judge Harden. Chatham Superior Court. February Term, 1879.

Criminal law. Practice in tbe Superior Court. Jurors. New Trial. Before Judge Tompkins. Liberty Superior Court. October Term, 1878. To the report contained in the opinion it is only necessary to add that the three grounds of the motion for new trial insisted on were as follows: (1.) Because defendant was tried at an illegal term of court.