Volume 64 — Georgia Reports

<p>1. Where a bond and mortgage were executed in 1854 and matured in 1855, and the maker died, and letters of administration issued in 1861, and the administrator died in 1804, and the estate was unrepresented until 1872, when letters de bonis non were issued:</p> <p>Held, that inasmuch as the statute of limitations was suspended from 1864 to 1868, and the time intervening between the termination of the first administration and the commencement of the administration de bonis non is not to be counted until the expiration of five years more, and nine months and fifteen days in addition are to be added before the bar prescribed by the limitation act of 1869 would attach, the bond and mortgage were not barred by that act in 1872, when the letters de bonis non were issued.</p> <p>2. Administration de bonis non having been granted in 1872 to one of several trustees for the purpose of securing the payment of the bond and mortgage, they were not barred whilst he was the sole administrator, and when he administered the assets and applied them to the debt due from the intestate to the trustees without unreasonable delay.</p> <p>3. An administrator cannot sell the lands of intestate whilst in the adverse possession of the heirs at law, and actual possession of part of a tract will constructively extend to the limits described in a deed recorded, or of the boundaries of which the adverse party had knowledge.</p> <p>4. "Where the real issue of the case on trial turned on the question of such possession in the heirs as against the administrator on a bill brought by the heirs to set aside the sale of the mortgaged property for the purpose of paying the debt, and the evidence was conflicting thereon, and the court charged erroneously on other controlling points, a new trial should he granted.</p> <p>5. Deeds thirty years old, apparently genuine, and coming from the proper custody, are admissible without proof of execution or of proper record.</p>

<p>Corporations. Railroads. Attachment. Jurisdiction. Laws. Levy and sale. Receivers. Parties. Practice in the Superior Court. Before Judge Snead. Richmond Superior Court. April Term, 1879.</p> <p>Reported in the decision.</p>

<p>1. In 1868, no ordinary had power to dismiss from his trust a guardi an of free persons of color, appointed as such prior to the abolition of slavery, and appoint a successor in such guardianship. An order of dismission based on the appointment of a successor, and on an accounting with him instead of with the wards, is void if no citation or other notice to the wards, nor any election by them, is made to appear by recitals in the order, or otherwise. After the status of free parsons of color became changed both civilly and politically, a guardian of that class of persons was placed in new relations, and his holding of the property of his wards was thenceforth more in the nature of a general trust. Nevertheless, the ordinary had and has jurisdiction of returns relating to his management. Such returns are not conclusive upon him in all respects, hut are open to explanation.</p> <p>2. During the existence of slavery, there was no law or public policy against the ownership of personal property by free persons of color, and no law for any slave to have a guardian. The appointment of a white man as guardian for certain negroes, and his acting in such capacity, involved their freedom as a foregone conclusion. If they were defacto free in “ slavery times,” and he made returns to the ordinary in 1868, reaching back to 1854, in which he debited and credited them as his wards, it need not further appear whether they were free dejure or-not, in order to hold him to account lawfully for a fund which he received for their benefit in 1854, and to the management of which, as their guardian, his said returns relate. He stands committed to their having acquired freedom by some lawful means, and to their ownership of the fund.</p> <p>8. The burden of proving that the fnnd was converted into Confederate bonds in a legal way, is upon tlie guardian, or liis representative.</p> <p>4. When the plaintiffs have introduced in evidence one of several returns to the ordinary, made at the same time and sworn to in one and the same affidavit, the defendant may introduce the rest of the series, and the whole may be considered by the jury as one entire document. They are, however, not bound to give equal credit to all the several parts.</p> <p>5. As to the effect of infancy in reply to the limitation act of 1869, see Jordan vs. Ticknor, 62 Ga., 123; Windsor vs. Bell, 61 Ib., 671.</p>

Negotiable instruments. Indorsement. Protest. Charge of court. Before Judge Clark. City Court of Atlanta. December Term, 1878. Goldsmith sued Lynch as indorser on five certificates of deposit differing only in dates and amounts, one of which is copied in the first head-note, aggregating $1,450.00, besides interest. The declaration was in the short statutory form with copies attached. The defendant pleaded as follows : 1. The general issue. 2.

<p>Criminal law. Charge of Court. Evidence. lies gestee. New trial. Jurors. Before Judge Crawford. Marion Superior Court. April Term, 1879.</p> <p>The following, in connection with the opinion, sufficiently reports this case:</p> <p>Elanegan, as principal in the first degree, and two others, as principals in the second degree, were indicted for the ranrder of one Tullís. The evidence on the trial of Elanegan was, in brief, as follows: At a party which took place at the house of a Mr. Gordon, Tullis wanted a fiddle which Flanegan had, and refused to give up; after playing awhile, he went out to the front of the house, and in a short time one Pickett came in and reported to Tullis that Elanegan was out there abusing him. Tullis went out, and a colloquy ensued in which Pickett joined with Tullis, and rendered himself efficient in bringing on a difficulty. Finally Tnllisinvited Flanegan to go out in the yard and fight; the latter seems to have been loth to do so, but at length they did go, and a fight ensued. Several others besides the principal actors took a hand in the affair. Such as were made witnesses testified that they were separating the parties, and acting as peace-makers, while other witnesses insisted that most of them acted in a manner too energetic to comport with peaceful intentions. Tullis was cut with a knife; Flanegan was not hurt; Tullis died from his wounds. The evidence for the state pointed to Flanegan s the one who did the cutting. One of his lines of defense was that it was dark, and in the melee the cutting was done by some other than himself. When Gunnels, a witness for the state who testified to having sought to separate the combatants, was asked if at the time, or within a moment or two thereafter, he had not said “ Where’s the God damned rascal ? Let’s kill him !” and if Pickett had not replied “He’s gone, but I gave him five gashes in the back before he got away,” the witness denied any such conversation. Other testimony was introduced to show that it did take place. In his charge, the court limited the effect of this testimony to the purpose of impeaching Gunnels. In regard to the details of what was said by the parties, etc., the evidence was very conflicting.</p> <p>The jury found the defendant guilty of voluntary manslaughter. He moved for a new trial on the following, among other grounds:</p> <p>(1.) Because the court erred in limiting the scope of the testimony, as set out above.</p> <p>(2.) Because of newly discovered evidence. [On examination of the affidavits in support of this ground, it appeared that the new evidence was merely cumulative of that already introduced.]</p> <p>(3.) Because one of the jurors communicated with various people after being charged with the case; and because the bailiff in charge of the jury left his post and carried messages for the juror. [The affidavits for the state show that the juror spoke to a lady at the hotel where the jury were domiciled, and asked her for a pack of cards called “authors;” that he received the cards and also a cigar; that the bailiff, at the request of the juror, sent for some newspapers and afterwards went himself for them. But these affidavits show that nothing was said by the juror to any one in regard to the case under consideration ; that the jury were kept under lock and key ; that, under the direction of the court for the bailiff to allow the jury to have papers, etc., to read during the night, he had endeavored • to get the newspapers which the juror wanted, and did obtain and deliver them late in the evening just before the verdict was found; that nothing was said or done to influence the juror in his decision.]</p> <p>The motion was overruled, and defendant excepted.</p>

Evidence. Principal and agent. Charge of Court. Before Judge Tompkins. Chatham Superior Court. February Term, 1879. Thompson sued Mrs. Douglass in a justice court on an account for merchandise. On the trial the justice gave judgment for the plaintiff, and defendant appealed.

Practice in the Supreme Court. Criminal law. Yerdict. Before Judge Underwood. Floyd Superior Court. March Term, 1879. Watson was indicted for larceny after trust.

Negotiable instruments. Mortgage. Trusts. Parties. Husband and wife. Partnership. Evidence. New trial. Before Judge Underwood. Floyd Superior Court. March Adjourned Term, 1879.

<p>If tlie time covered by a contractor’s bond for keeping in repair a county bridge has expired, and tbe county does not make a new contract for that purpose, but undertakes to keep the bridge in repair itself, ic will be liable for damages resulting- from a failure to do so.</p> <p>Bleckley, Justice, dissented.</p>

<p>Courts. Jurisdiction. Title. Usury. Mortgage. Damages. Practice in the Superior Court. Before Judge Snead. Richmond Superior Court. April Term, 1879.</p> <p>Kirkpatrick brought suit in the county court of Richmond county, against Denham. The declaration alleged, in brief, the following facts : Plaintiff was the owner of a lot in the city of Augusta, which was levied on and brought to sale in June, 1876, under a fi.fa. against him. Just as the lot was exposed for sale by the sheriff in the presence of a large number of bidders, defendant caused his attorney to announce publicly that he held an equitable mortgage for $1,500.00 on the place, and that the purchaser would take subject to this lien, — the attorney exhibiting at the same time a paper as such mortgage. This statement was false, fraudulent and malicious, and, by frightening bidders, enabled defendant to buy in the land at a price much below its value, thereby damaging plaintiff.</p> <p>This declaration was filed in the county court, September 14, 1878.</p> <p>Defendant pleaded the general issue, the statute of limitations, and estoppel from claiming title by reason of a deed conveying the property out of defendant before the sheriff’s sale.</p> <p>On account of the collateral issue in regard to the title, the case was transferred to Richmond superior court. (Acts 1874, p. 79). When the case was called in that court, counsel for defendant insisted that nothing was for trial there except the collateral issue of title. The court overruled this position and ordered the case to proceed.</p> <p>The evidence showed substantially the following facts: In December, L875, plaintiff, who then owned the place, borrowed $1,000.00 from defendant. For this he gave his note for $1,500.00 due at twelve months, and to secure this, made a deed for the lot to defendant, and took a bond for re-conveyance upon payment of the note. At the sheriff’s sale defendant’s attorney made an announcement, or had it made. He testified that it was stated that defendant had a deed to the property the consideration of which was $1,500.00,and would claim under it as an equitable mortgage, and that purchasers would buy subject to whatever incumbrance defendant might have under the deed. Witnesses for plaintiff state the announcement as it was set out in the declaration. Defendant himself became a bidder. One Wilson was also a bidder. The latter was willing to pay $3,700.00 for a clear title; considering that the incumbrance would be $1,500.00, he bid $2,200.00, and, defendant bidding $2,210.00, he became the purchaser. Had it been announced that the incumbrance was $1,000.00 Wilson would have bid $2,700.00.</p> <p>The jury found for plaintiff $588.95. Defendant moved for a new trial on the following grounds, among others :</p> <p>1st. Because the court erred in holding that the whole case was before the superior court for trial.</p> <p>2d. Because the court refused to charge, as requested by defendant’s counsel, “that to support an action for slander of title, it must be shown that the statement made by defendant to the injury of the title, was both false and malicious;” but instead of charging as so requested, qualified the same by saying “ that if the statement was false, that was, alone, sufficient to authorize the plaintiff to recover actual damages, and if malicious, then the plaintiff could also recover exemplary damages.”</p> <p>3d. Because the court refused to charge, as requested by defendant’s counsel, “that if the case is not an action for slander of title, then'it is an action for words, and if not brought within one year from the time the action accrued, then it is barred by the statute of limitations.”</p> <p>4th. Because the court refused to charge the jury, as requested by defendant’s counsel, “that the plea of usury is a personal plea, and until Kirkpatrick, the plaintiff in this case, availed himself of this plea, Denham, the defendant, could in good faith and without malice or falsehood, claim that there was due him in the transaction fifteen hundred dollars.”</p> <p>5th. Because the court erred in charging the jury “that if they found from the evidence that $500.00 of the sum named as the consideration in the deed from Kiikpatrick to Denham was usury, then said deed was void as title, and the statement, if made by defendant or his counsel at the sale, that he held an equitable mortgage upon the property for fifteen hundred dollars, was false, and the plaintiff was therefore entitled to recover whatever actual damages he may have sustained ; and further, if the jury found that the statement was also malicious, 'then plaintiff is entitled besides to exemplary damages.”</p> <p>6th. Because the verdict was contrary to law and evidence.</p> <p>7th. Because the court erred in the following : When, the jury returned to the court-room with their verdict it was as follows :</p> <p>“ We, the jury, find for plaintiff the sum of four hundred and ninety dollars, with interest from date of the sale of the property.”</p> <p>Counsel for plaintiff arose, and stating that he desired no interest to be expressed in the verdict, moved the court to instruct the jury, if they meant to give the interest as damages to plaintiff, to retire to their room and. so amend the verdict as to include all the damages in one general verdict of damages. Whereupon the court so instructed the jury, and they retired to their room and immediately afterwards returned with the following addition to their finding: “ The amount of damages with interest is five hundred and eighty-eight dollars and ninety-five cents.” Counsel for plaintiff still objecting to the form of the verdict, the court ■directed the foreman, if such wa:s the intention of the jury, to include or embody the whole amount in one general verdict reading in damages. Whereupon the foreman, without the jury retiring, wrote the following verdict over his name as foreman: “We, the jury, find for plaintiff the sum of five hundred and eighty-eight dollars and ninety - five cents damages,” — which was read aloud by the clerk, all of the jury being in their seats and all of them tacitly assenting to the verdict so amended, but the court not inquiring particularly of the balance of the jury if such was their verdict; all of which was objected to by defendant’s ■counsel.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Partition. Parties. Equity. Minors. Before Judge Tompkins. Chatham Superior Court. October Term, 1878.</p> <p>Reported in the decision.</p>

<p>An incorporated canal company whose business is to maintain and keep open a waterway for tbe use of the public, taking tolls for such use, and having, at or near the terminus of the canal, basins-for the accommodation of its customers, with a usage or regulation that timber which lies in the canal, or in the basin, for more than fifteen days after the transportation is completed, shall be subject to an additional charge at a fixed rate per month, is not liable, in the absence of special contract, for the exercise of any care or diligence in guarding or protecting the timber, beyond keeping the canal and basins in good order; and if from rafts lying in the basins or in the canal itself, sticks of timber be lost at any time, by theft, sinking, or otherwise, without some wrongful act on the part of the company or its servants (the burden of proving which is on the owner), the company is not answerable for the damages.</p>

Evidence. Contracts. Before Judge Fleming. Bulloch Superior Court. April Term, 1879. To the report contained in Ihe opinion it is only necessary to add the following: A witness for defendant, Dr. Lane, testified as follows: “Am a physician and chemist, and competent to make chemical analysis. I analyzed the sample of fertilizer brought to me by defendant, of which he has spoken.

<p>Railroads. Master and servant. Damages. Before Judge Hillyer. Henry Superior Court. April Term 1879.</p> <p>Reported in the decision.</p>

<p>"Wills. Legacies. Evidence. Before Judge. Snead. Richmond Superior Court. April Term, 1879.</p> <p>Reported in the opinion.</p>

Certiorari, Rule. Levy and sale. Before Judge Underwood. Floyd County. At Chambers. July 29, 1879. Mrs. Smith petitioned for the writ of certiorari, presenting the following facts : She obtained an “attachment absolute” against Chambers, former constable of the 919th district, G. M., in the case of petitioner against Bailey, for $25.00, with interest at 20 per cent, per annum theron from October 9, 1877.

<p>Tax. Officers. Comptroller-general. Wild lands. .Before Judge Hood. Terrell Superior Court. May Term, 1879.</p> <p>This was a rale nisi granted on petition of T. E. Johnson against S. R. Christie, sheriff of Terrell county. In his petition and amended petition the movant, Johnson, alleges that on the 18th day of February, 1878, and other days and times, he had duly assigned and transferred to him by W. L. Goldsmith, comptroller-general of the state of Georgia, two hundred wild land tam fi.fas., issued against various lots of land in Terrell county, for which he paid to Goldsmith, as comptroller-general, $-, being the amount of tax due the state on such land and the accrued cost thereon. That he placed the fi.fas. in the hands of S. R. Christie, sheriff of Terrell county, who proceeded to levy and advertise the same for sale in terms of the law. That on or before the day of sale, various affidavits were filed with said sheriff, alleging that said lots were not wild lands, etc., as to ninety-seven of said fi. fas., which he, as sheriff as aforesaid, failed to expose to sale, and upon which there is due and owing to movant $1,097.00, being the amount of tax and cost paid by him to the comptroller-general for the tax and accrued cost on said fi. fas. That the sheriff sold the other lots levied on under and by virtue of said fi.fas., and that he has in his hands eight hundred dollars or other lax’ge sum arising from said sale.</p> <p>By an amendment he alleges that he has paid to the state of Geox’gia the full amount of taxes due on each of said J?. fas., and fifty cents cost charged by the comptroller general for issuing each of the same; that the fi.fas., each and all of them, had been assigned to him, the said T. E. Johnson, by the comptroller-general, and that he had them duly recorded in Eulton and Terrell counties, within three months from the transfer thereof, and appends to his amended petition a list of th e fi.fas., the lots against which they issued, the amount of tax paid by him and the date of • the ti’ans-fer.</p> <p>By another amendment to his petition movant sets forth that the fi.fas. were sold and transferred, to him by W. L. Goldsmith, comptroller-general, with the guaranty that they were valid, legal and binding liens on the lots of land set out in each of th o fi.fas., and that said lots were wild lands • and for the ninety-seven lots not sold he asked to be reimbursed not only the money paid for said fi.fas., but the cost and expense incurred.</p> <p>On motion of- the solicitor-general, W. L. Goldsmith, comptroller-general, was made a party to the proceedings.</p> <p>The sheriff’s answer admitted the sale of the land, except the ninety-seven lots, and alleged a large number of the lots had been purchased by Johnson, the transferee, but not paid for ; he also admitted that the fi. fas. had been placed in his hands by Johnson, and generally the matters set .up in the petition for rule nisi.</p> <p>On the hearing the court discharged the rule, and movant excepted.</p>

Equity. Injunction. Trusts. Before Judge Pottlu. Wilkes Superior Court. November Term, 1879.

Officers. Municipal corporations. Police. Criminal law. Evidence. Before Judge Simmons. Bibb Superior Court. April Term, 1879. To the report contained in the decision it is only necessary to add the following grounds of the motion for new trial: (1). Because the verdict was contrary to law and evi-. dence. (2) .

<p>Injunction. Municipal corporations. Tax. Constitutional law. License. Before Judge Simmons. Bibb County. At Chambers. September L6, 1879.</p> <p>Reported in the opinion.</p>

<p>Interest and usury. Title. Deeds. Before Judge Un derwood. Eloyd Superior Court. March Term, 1879.</p> <p>Mrs. Tummons sued out a warrant to dispossess Hamilton of certain property occupied by him, on the allegation that he was a tenant holding over. He filed a counter-affidavit and issue was joined, the point at issne being whether Mrs. Tummons was the landlady of Hamilton or not. Plaintiff put in evidence, among other things, a deed from the defendant to her, dated September 10th, 1874, conveying the premises in dispute. Defendant contended that the deed did not convey title to plaintiff, because it was only intended as a security for a debt arising out of the sale of a mule by plaintiff to him in the summer of 1874, aud because usury was charged, and a deed tainted with usury would be void. On this point the court charged as follows : “ If the deed was made in consideration o£ the payment of a note in which there was usury, and the consideration of the deed was tainted with usury, no tenancy can be predicated upon a title thus tainted with usury, the relation of landlord and tenant cannot arise in such a case, and the tenant is not estopped from denying the landlord’s title if you are satisfied from the evidence that the deed is founded upon any such usurious contract, the plaintiff cannot recover.”</p> <p>After a verdict for defendant, plaintiff moved for a new trial. It was refused, and she excepted.</p>

<p>1. That the judge of the circuit who granted a rule nisi on a motion for new trial is related to one of the parties within the fourth degree, is not good ob jeetion to the hearing of the motion by the non-resident judge who tried the case, and to whom the motion was submitted by consent of parties.</p> <p>2. Two of the grounds, among others, being that the verdict was con trary to law and evidence, and the resident judge having granted a rule nisi, the motion was submitted by consent to the non-resident judge who tried the case. In answerto the rule, respondent showed for cause that neither the grounds of the motion nor the brief of the evidence had been approved. The judge hearing the motion ■ corrected and approved them and overruled the objection :</p> <p>Held, that there was no error in this proceeding.</p> <p>3. That court was adjourned to a specified time at which no cases were to be tried except by consent, did not prevent the filing of a motion for a new trial.</p> <p>4. The verdict was proper against the trust estate, but the usee for life ■ and her trustee alone being parties defendant, the judgment should have been against the life estate only.</p>

<p>Habeas corpus. Husband and wife. Parties. Practice in tbe Supreme Court. Before Judge Snead. Richmond County. At Chambers. February 18, 1879.</p> <p>On the 18th day of November, 1878, there was filed in the clerk’s office of Richmond superior court, an original affidavit as follows:</p> <p>“ State oe Geobgia, Richmond County.</p> <p>“Personally appeared, Hugh Dempsey, who after being duly sworn, says that he is the superintendent and agent acting m this behalf for the Southern Express Company, a corporation existing under and by virtue of the laws of the state of Georgia. That said corporation is about to commence an action at law against Walter S. Lynch, returnable to the April term, 1879, of Richmond superior court, for the recovery of certain personal property, consisting of a certain package done up in bull paper and having written thereon ‘ $25,000, Reeves, Nicholson & Co., Athens, Ga.,’ the same being sealed with wax having the initials of G. W. W. & Co. stamped thereon, measuring about ten inches in length by seven and half inches in width, and about six and half inches in depth, and shipped by Geo. W. Williams & Co., of Charleston, South Carolina.</p> <p>“That said personal property was delivered to Walter S. Lynch, November 5, 1878, as a messenger between Port Royal and Augusta, to be brought by him to Augusta, Georgia, for transmission to Athens, Georgia, and it has not been transmitted by him or delivered to the Southern Express Company, and that the same is in the possession and under the control of said Walter S. Lynch.</p> <p>“Th it deponent, for and in behalf of said corporation, has reason to apprehend and does apprehend that the said personal property will be removed away and will not be forthcoming to answer the judgment that shall be made in the case.</p> <p>“That the said personal property is of the value of twenty-five thousand dollars, and the package contained divers, to-wit: twenty notes of the United States, commonly called currency notes, for the payment of the sum of one hundred dollars each; five hundred of the same denomination of notes, each, of the value of twenty dollars; one thousant of the same denomination of notes, each of the value of ten dollars; six hundred of the same denomination of notes, of the value of five dollars each.</p> <p>“ Deponent further swears that in behalf of said corporation he does verily and bona, fide claim said personal property for said Southern Express Company, who have paid the value thereof to said George W. Williams & Co., ami he desires bond and security may be required of said Walter S. Lynch for the forthcoming of said property.</p> <p>Hush Dempsey.”</p> <p>Declaration was filed the same day in trover at common law as follows:</p> <p>“ The petition of the Southern Express Company, a corporation of the county and state aforesaid, showeth that Walter S. Lynch, of the county aforesaid, has greatly endamaged your petitioner, for that whereas, heretofore, to-wit: on. the fifth day of November, in the year of our Lord, one thousand eight hundred and seventy-eight, and in the county aforesaid your petitioner was possessed as of its own property, of a certain package done up in buff paper and having written thereon ‘$95,000.00, Reeves, Nicholson & Co., Athens, Ga.,’the same being sealed with wax, having the initials of G. W. W. & Co. stamped thereon, measuring about ten inches in length, by about seven and a half inches in width, and about six and half inches in depth, and shipped by George W. Williams & Co., of Charleston, South Carolina, of great value, to-wit: of the value of twenty-five thousand dollars, and being so thereof possessed as aforesaid, your petitioner after-wards, to-wit: on the day and year and in the county aforesaid, casually lost said package out of its possession, and the same after-wards, to wit: on the same day and in the county aforesaid, came to the possession of the said Walter S. Lynch by finding.</p> <p>“Yet the said Walter S. Lynch, although he well knew the said package to be the property of your petitioner as aforesaid, has not delivered the same to your petitioner although often requested to do so, and afterwards, to-wit: on the day and year, and in the county aforesaid, converted and disposed of said package to his own use.”</p> <p>Tbe declaration contained also a second count which differed only from the first in that it set forth a description of the treasury notes which were in the package, and proceeded :</p> <p>“Yet the said Walter S. Lynch, although he well knew the said package and contents aforesaid to be the property of your petitioner as aforesaid, has not delivered the same to your petitioner, although often requested so to do, and afterwards, to-wit: on the day and yea and in the county aforesaid, converted and disposed of said package and contents to his own use, to the damage of your petitioner fifty thousand dollars.”</p> <p>To this was annexed a copy of the original affidavit and process.</p> <p>Original was indorsed:</p> <p>“Filed in office 18th Nov., 1870. S. H. Crump, Clerk.</p> <p>Sum sworn to..........................................$85,000.</p> <p>Take hail for ..........................................$50,000.”</p> <p>The original declaration and copy were placed in the sheriffs hands, whose action is set forth in his return on the original writ as follows :</p> <p>“ Served a copy of the within petition and process and copy of the affidavit on the defendant, Walter S Lynch, arrested him at the same time, and not being able to give bond and not producing the property, I put him in jail this 18th day of November, 1878, in the custody of Theodore C. Bridges, jailer.</p> <p>“Charles H. Sibley, Sheriff R. C.”</p> <p>The original papers were first lodged with the jailer but withdrawn, and the following paper deposited with the jailer when the originals were returned to court:</p> <p>“The Southern Express Company, ) Trover and Bail, vs. >- April Term, 1879, Walter S. Lynch. ) Richmond Superior Court.</p> <p>Sum sworn to, $25,000.00.</p> <p>“The defendant having been this day served with a copy of the petition, process and bail affidavit in the above stated case, was arrested by me, and on failure to enter into recognizance for the forthcoming of the property sued for, and being unable to find that property myself, or to seize and take possession thereof, I now, pursuant to the requirements of the law, commit him to jail, to be kept in safe and close custody until the property sued for is produced, or until he shall enter into bond with good security for the eventual condemnation money.</p> <p>Charles H. Sibley,</p> <p>“ November 18th, 1878. Sheriff Richmond Co.”</p> <p>Mrs. Elizabeth M. Lynch, as wife of Walter S. Lynch, petitioned for a writ of habeas corpus, February 10, 1879, upon the following grounds :</p> <p>1. That the arrest and confinement is illegal, because the affidavit for bail attached to the declaration was made by a person not authorized to make such affidavit for a corporation.</p> <p>2. Because the affidavit for bail in said action was not filed in the clerk’s office of the court to which said petition was returnable, to-wit: the superior court of said county, and a copy thereof affixed to the original petition and the copy thereof.</p> <p>3. Because the copy of the original petition, affidavit and process, was not served upon Walter S. Lynch by the sheriff or other lawful officer, but was served upon him (if such an act can be called a service), by being handed to him by Hugh Dempsey, who was neither the sheriff nor other lawful officer.</p> <p>4. Because such action was not instituted in good faith for the purpose and with the intention of recovering the property described therein or the value thereof, but was begun, and is continued by the plaintiff therein in fraud of law, and for the purpose, by oppression and long confinement in jail, and the bringing of your petitioner and her children to want, or a worse fate, to extort money from the friends or relatives of the defendant in payment of a claim for the money lost by defendant or stolen from him while in transit to the point of delivery.</p> <p>5. Because said property was not “in the possession, custody or control of defendant” at the time of the demand therefor as sworn to by said Hugh Dempsey, as “superinintendent and agent,” said affidavit of said Dempsey being false and without the slightest foundation in fact and truth.</p> <p>6. Because an action of “trover and bail” will not lie for the recovery of money under the facts of this case.</p> <p>7. Because said action cannot be maintained, the injury complained of amounting to a felony, as defined by the Code of this state, and the said company having failed and refused to prosecute said defendant, either simultaneously or concurrently, or previously to the institution of said action for the same, or to allege a good excuse for the failure to so prosecute.</p> <p>The jailer returned as the cause of commitment the paper lodged by the sheriff, and justified his confinement of relator solely under the act of December 13, 1820.</p> <p>He prays that the City Council of Augusta, sheriff, and Southern Express Company be made parties, and submitted to the court solely for his protection in the premises, and asked decision on the following :</p> <p>1. That this petition nor writ of habeas corpus has ever been filed in the clerk’s office of Richmond superior court, and is not valid until placed on the docket of that court.</p> <p>2. That the writ should have been issued against the sheriff of Richmond county or the City Council of Augusta, and not to him, as jailer.</p> <p>3. That the judge of the superior court of the Augusta circuit has no jurisdiction in vacation under a writ of “habeas corjpus” to determine the validity of civil process returnable to a regular term of a court of this circuit.</p> <p>4. That the process under which Lynch is held in custody is lawful, and that at April term, 1879, it being the appearance term of Richmond superior court, which is a court of competent jurisdiction, can only a motion be lawfully made or entertained in respect to the validity of the process or detention thereunder.</p> <p>On the filing of the return of the jailer, the court ordered that the sheriff, Charles H.' Sibley, and the Southern Express Company be made parties.</p> <p>The sheriff then answered, adopting the return of the jailer, also that he did, on the 18th day of November, 1878, personally serve the defendant, ’Walter S. Lynch, with a copy of the petition and process and bail affidavit in the case, and that his return upon the original papers to April term, 1879, of Richmond superior court, is correct and true.</p> <p>The Southern Express Company also adopted the answer of the jailer.</p> <p>The petitioner’s attorney then filed a traverse as follows :</p> <p>“And now comes the petitioner, Mrs, E. M. Lynch, hy her attorneys, and traverses the truth of the facts set forth in the foregoing answer of T. C. Bridges, jailer, and the Southern Express Company, and alleges the facts as set forth in the grounds of her petition to he correct and true, and also accepts as true the answer of Charles H. Sibley» sheriff, and contests the sufficiency of the causes set forth in the answer of the said Bridges for the detention of the said W. S. Lynch, and strikes the 2d and 3d grounds of the petition for writ.”</p> <p>• The demand served on Lynch was as follows:</p> <p>“To Wat,ter S Lynch:</p> <p>Demand is hereby made upon you for the immediate delivery to the Southern Express Companj of a certain package done up in buff paper, having written thereon ‘!5¡2o,000'.00, Reeves, Nicholson & Co., Athens, Ga,’ the same being sealed with wax having the initials of G. W. W. & Co. stamped thereon, measuring about ten inches in length, seven and a half inches in width and about six and a half inches in depth, and delivered to you November 5, 1878, as a messenger between Port Royal and Augusta, Ga., to bring to Augusta, Ga., for said Southern Express Company.</p> <p>“That upon failure to comply immediately with this demand an action will be brought against you for converting the same.</p> <p>“November 18, 1878.</p> <p>Southern Express Company.”</p> <p>By Hugh Dempsey, superintendent.”</p> <p>The bill of exceptions recited the history of the case during the trial, as follows: . . . . Upon the request of said jailer and in accordance with the desire of said parties, the Southern Express Company, plaintiff in the action upon which said "Walter S. Lynch was committed, and Charles H. Sibley, sheriff of said county, by whom said defendant was committed, were made parties. The request of said jailer to have the City Council of Augusta also made a party was refused.</p> <p>The return of said jailer was traversed in writing and issue joined thereon, and petitioner offered evidence to disprove the statement made in the affidavit for bail, “that the same (the personal property sued for) is in the possession and under the control of the said Walter S. Lynch,” and to show that the same was lost or stolen from the possession, custody or control of the said Walter S. Lynch, while in the employ of the Southern Express Company, November 5th, 1878, evidence of which was in the possession of the maker of said affidavit, prior to and at the time of the making of said affidavit, and that said property had not been in the possession, custody or control of the said Walter 8. Lynch since that time. Petitioner offered also to prove that the failure to deliver said personal property to the plaintiff on demand, or surrender or point out the same for seizure by the sheriff, was due alone to the inability of the said Walter S. Lynch to comply therewith on account of the loss or theft as aforesaid. That he did not enter into the recognizance provided for by law, solely because that by reason of his poverty he was unable to give such a bond.</p> <p>All of which was repelled by the court, and the announcement made that it would only receive evidence as to whether or not the Southern Express Company, as plaintiff in said action, had prosecuted the defendant under section 29 iO of the Code, or alleged a good excuse for its failure to prosecute. The petitioner thereupon put in evidence the admission of the plaintiff that it had not prosecuted the defendant, the original declaration with affidavit attached, and accepted in lieu of said original affidavit, and the demand made by plaintiff upon the defendant prior to the filing of said suit, to be found in the brief of the evidence.</p> <p>The respondent Bridges and the Southern Express Company offered the commitment from the sheriff under which the defendant was held after the withdrawal of the declaration, etc.</p> <p>The judge refused to discharge the prisoner, whereupon a bill of exceptions was sued out by Elizabeth M. Lynch, and error assigned on the following grounds:</p> <p>1. Because the court erred in repelling proof of the falsity of the statement in the affidavit for bail by Hugh Dempsey, to-wit: “that the same, (referring to the package sought to be recovered in said action) is in the possession and under the control of the said Walter S. Lynch,” and to show that said package was lost or stolen from the possession, custody and control of the said Walter S. Lynch while in the employ of the Southern Express Company, November 5th, 1878.</p> <p>2. Because the court erred in repelling evidence by petitioner that the failure to deliver said personal property to the plaintiff on demand, or to deliver the same to the shei’iff for disposition as provided by law, was due solely to the fact that said property was not in his possession, custody or control, having been lost or stolen out of his possession, custody and control as aforesaid, and his -failure to enter into a recognizance for the forthcoming of said property as provided by law, was due alone to the fact that from his poverty he was unable to give such recognizance.</p> <p>3. Because the court erred in deciding that section 2970 of the Code was limited to physical injuries, and did not apply to torts to property, although such torts amounted to a felony as defined by the Code of this state, and that therefore, although the record in said case made out a prima facie case of larceny after trust, which was a felony as defined by the Code of Georgia, it was not incumbent- upon the said Southern Express Company, as plaintiff in said action, to prosecute for the same, or to allege a good excuse for the failure to so prosecute, and that plaintiff could maintain said civil action without having “either simultaneously or concurrently or previously” prosecuted for the same, or alleging a good excuse for the failure so to pros-cute.</p> <p>4. Because the court erred in remanding the said defendant to jail under the law and facts of this case.</p> <p>5. Because the court erred in deciding that upon a traverse of a return to a writ of habeas corpus, no evidence was admissible except the record in the case in which defendant was held in custody, and evidence to establish that the plaintiff had or had not prosecuted for the tort under section 2970 of the Code.</p> <p>When this case was called a motion to dismiss the writ of error was submitted upon the ground that the wife of the prisoner was not, herself, entitled to a review of the decision by bill of exceptions, the prisoner not complaining,. And because the acknowledgment of service was simply signed by “Frank II. Miller and J. S. & W. T. Davidson,, attorneys for respondents,” not showing that all of the parties respondent were represented in such acknowledgment. The record failed to disclose that any of such respondents had been represented by other and different counsel in the court below.</p> <p>The motion was overruled, the court holding as stated in the third and fourth head-notes.</p>

<p>1. It is not the agreement of counsel but the certificate of the presiding judge which verifies the brief of evidence to enable this court to review the case; therefore the judge, even after counsel had agreed upon a brief satisfactory to themselves, may correct it by interlineations or otherwise so as to make it conform to his recollection of the facts.</p> <p>3. Possession of part of one lot embraced in the same deed with other lots will not be extended by construction to the other lots, unless the deed be on record, so as to work a title by prescription; and constructive possession of the unoccupied lots will not begin to run until the date of the record.</p>

Witness. Evidence. Before Judge MoCutohen. Whitfield Superior Court. April Term, 1879. To the report contained in the decision it is only necessary to add the following: The evidence for plaintiff tended to show the following facts : There was bad feeling between McEwen, the deceased, and the Springfields; the immediate quarrel arose in Springfield’s grocery at night about buying some bitters; both of the Springfields advanced towards McEwen, and he went out of the door.

Practice in the Supreme Court. New Trial. Practice in the Superior Court. Interrogatories. Wills. Trust. Husband and wife. Estates. Before Judge Hillyer. Henry Superior Court. April Term, 1879. Held: and the remainderman under the will, she moved to Mississippi, he agreeing to pay her rent for the property dnz’ing her non-i’esidence, to znanage and control the same for her, and thereafter paying her a portion of such rent.

. New trial. Evidence. Before Judge Erwin. Gwinnett Superior Court. March Term, 1879. To the report contained in the opinion, it is only necessary to add the following : ■ Plaintiff, on cross-examination, testified as follows in regard to admissions: “ Defendant came to see witness about the safe afterwards; it was about sixty days after the sale ; T. W. Sexton, John Arnold and John Flowers were there.

<p>1. Where the record contains no judgment on demurrer, this court will assume that there was no such judgment.</p> <p>2. The declaration in this case is not so defective as that a verdict thereon would be necessarily illegal. Its defects are amendable and would be cured by verdict.</p> <p>3. Where a bank held demands, secured by collaterals, against its customer for loans and advances, part of which demands had been liquidated by note, and there bad been a course of dealing between the parties, embracing these advances, and also deposits made with the bank from time to time by the customer, and where there was evidence tending to show an accounting between the parties, and an accord and settlement, in which the collateral securities were divided between them, the amount of collaterals falling to the bank credited on the gross sum of its demands, a new note taken for thé balance, and the old notes all canceled and surrendered and entered paid on the discount book of the bank:</p> <p>Held, a. That this transaction on its face would operate as a payment and cancelation of the demands held hy the bank against the customer except as to said balance for which the new note was taken. 5. That if the bank allege the contrary the burden would be on the bank to prove it.</p> <p>o. That if, in such case, the court so charge the jury as in terms or by reasonably implication to impose the burden of proof touching' such point on the customer, a new trial should be granted.</p> <p>d. Even if the burden of proof were on the debtor, a charge which submits to the jury, whether “the circumstances as demonstrated to> them by the evidence is of such a nature as to raise the implication —the necessary implication that it was taken inpayment,’’ puts the case too strongly, and demands more than the law would require to-overcome such burden of proof — mere preponderance of evidence would be sufficient.</p>

<p>1. A loan, was made in 1873 at usurious interest. Two notes were given, both infected with usury, one payable in October, the the other in November, 1873. When they matured the usury laws had been repealed and had not been re-enacted. The note first ma-taring was paid at maturity, and when the other matured it was re. newed (without-purging) by a draft drawn and accepted by the debtor. In a suit upon the draft begun in 1877, the usury paid upon the note which was discharged was not matter of defense, either as payment or set-off. A like rule prevails as to usury upon a third note infected with usury, executed before but paid in 1873, after the usury laws wore repealed.</p> <p>2. Under the act of December 11th, 1871, where the contract made was for more than 10 per cent, interest, it was valid for that much. '</p> <p>3. Where counsel for defendant in error concedes error on a material point, and calls for no decision upon that point, the supreme court will reverse the judgment with appropriate directions.</p>

Contracts. Laws. Collaterals. Stock. Evidence. Custom. Partnership. New trial. Before Judge Simmons. Bibb Superior Court. April Term, 1879.

Municipal corporations. License. Contracts. Ultra vires. Estoppel. Ordinance. Before Judge Speer. DeKalb Superior Court. March Term, 1879.

Criminal law. Larceny. Before Judge McOutohen. Whitfield Superior Court. April Term, 1879. Lee was indicted in the county of Whitfield for the larceny of a horse. The proof showed that if he was guilty of the theft, the act was perpetrated in the state of Tennessee; but also, that he had brought the horse into the county of Whitfield, had there endeavored to sell him, and had exercised other acts of ownership. The defendant was found guilty.

<p>1. The jurisdiction of the county court of Houston county at its monthly sessions is for all claims up to $100.00, and if the plaintiff in his declaration declare for that sum only, the jurisdiction will-he, maintained, though damages beyond that amount be provem and found by Ihe jury.</p> <p>2. He can only recover as much as he declares for — no more; therefore the verdict for more is illegal, but the surplus may be written off and the verdict may stand for the sum found within the jurisdiction.</p> <p>3. A verdict is certain which can be made certain; and where the damages to plaintiff on a constable’s bond for failure to levy is found to be two principal sums with interest up to a certain time and from a certain time at different rates on each principal sum, so as to calculate exactly how much damage the jury found, the ver-, diet is sufficiently certain to predicate a judgment thereon, and the judgment should not he arrested because of the alleged uncertainty of such a verdict and impossibility to enter up judgment thereon.</p>

<p>Year’s support. Administrators and executors. Dower. Laws. Yerdict. Before Judge Underwood. Floyd Superior Court. March Term, 1879.</p> <p>Reported in the decision.</p>

Partnership. Negotiable instruments. Indorsement. Alteration. Before Judge MoCdtohkn. Whitfield Superior Court. April Term, 1879. Gordon brought suit in the justice’s court of the 1049th district, G. M., against McCauley and Ward, on the following note: “September 1st, 1877. “Ninety days after date we promise to pay to the order of J. C. Williams, or bearer, one hundred dollars, value received. Test, W. L. I-Ieadrick. O. 0. McCauley.

<p>1. Merchants who ship bacon and corn from St. Louis to Atlanta, to an agent in Atlanta, who sells the goods so shipped by going about the city to engage it, and then delivering it from the cars or freight depot, and who has no store or warehouse, or other place of business in Atlanta, are, by their said agent, itinerant traders, and are liable to the city of Atlanta for taxes imposed upon that occupation or business</p> <p>2. All other points in respect to constitutional objections to the ordinance imposing the tax are covered by the case of Davis vs. The Oity of Macon, decided at this term.</p>

Appeal. Municipal corporations. Officers. City of Savannah. Before J udge Tompkins. Chatham Superior Court. October Term, 1878. To the report contained in the decision,.it is only necessary to add the following: Brown was a policeman in Savannah. He was arrested by order of the chief of police, who preferred charges against him to the mayor. The latter heard the case and dismissed Brown from the force. Brown sought to appeal to the mayor and aldermen in council.

<p>Where the answer of the garnishee denied indebtedness to the defend ant, and was traversed by an allegation of indebtedness in the sum of ¡8500.00, and the traverse was amended setting out astate of facts whereby other indebtedness was substantially shown, though on a complicated state of facts, and the amendment was demurred to, and the whole traverse was stricken, and judgment rendered for the garnishee:</p> <p>Held, that the court erred.</p>

<p>Witness. Evidence. Principal and agent. Before Judge Hillyer. Fulton Superior Court. September Term, 1878.</p> <p>Reported in the decision.</p>

Homestead. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1878. In 1866, Warren and Thomas I). Hawks as administrators of Henry Hawks, Sr., sold 1000 acres of land to Henry Hawks, Jr. and James M..Smith, made them a deed and took their joint note and mortgage on the land. In • 1867 Smith and said Henry, Jr., divided the land, Smith taking 400 acres, for which he paid, and Henry, Jr., 600.

Evidence. Partnership. Contracts. Set-off. Practice in the Superior Court. Before Judge Mbksiion. Glynn Superior Court. May Term, 1879. The following, taken in connection with the opinion, sufficiently reports this case : Dillon & Sons, who were merchants, brought complaint on an open account against Bracken & Ellsworth, partners in a saw mill.

Equity. Pleadings. Taxes. Before Judge Snead. Richmond Superior Court. April Term, 1879. Picquet filed his bill against the City Council of Augusta to enjoin the collection of certain municipal taxes for which fi.fas. had been levied on a house and lot in the city of Augusta, alleging various points of illegality not material here.

Guardian and ward. Before Judge Pottle. Madison Superior Court. March Term, 1879. Ross Beard, a female minor nearly sixteen years of age; applied to the court of ordinary to be allowed to select her guardian, naming Skinner. Ross’ mother, her father being dead, caveated the application, and asked that she be appointed. It was so ordered and Boss appealed to the superior court.

Executions. Levy and sale. Payment. Attorney and client. Before Judge Underwood. Eloyd Superior Court. March Term, 1879. On February 28, 1873, an execution in favor of the Lightning Rod Company against Ayer, Duvall & Turner, was issued from the clerk’s office of Floyd superior court, for $135.00 principal, $11.85 interest, and costs.

<p>Contracts. Promissory notes. Non-suit. Before Judge Pottle. Hancock Superior Court. April Term, 187.9.</p> <p>This was an appeal case. Boyer sued Ausburn et al. on the written instrument set out in the opinion. On the trial he introduced it, and closed. The court granted a non-suit, and he excepted.</p>

Criminal law. Jury. Practice in the Superior Court.1 Practice in the Supreme Court. New trial. Before Judge Fleming. Bryan Superior Court.. April Term, 187!). • ' • Neal and Jackson were placed upon trial for the murder of one Houston, alleged to have been committed on February ; 2,1879. They pleaded not guilty.

Attachments. Before Judge Crawford. Talbot Superior Court. March Term, 1879.

Yendor and purchaser. Contracts. Evidence. New trial. Before Judge Speer. Newton Superior Court. March Term, 1879.' Sims, as executor of Harris, brought complaint against Henderson on the following note : “$1,500,00. Due John Harris, or bearer, $1,500.00, value received, for land this day sold and conveyed by John Harris to John F. Henderson. (Signed) J. F. Henderson. December 14, 1877.” Credits thereon amounting to $900.00.

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

Bond for title. Mortgage. Negotiable instruments. •Before Judge Underwood. Polk Superior Court. February Term, 1879.

Constitutional law. Municipal corporations. Injunction. Before Judge Lester. Cobb County. At Chambers. May 7, 1879. Certain citizens of Marietta, Hudson et al., filed their bill against the municipal authorities to restrain them from incurring any debt in exchanging a hand fire-engine for a steam one.

<p>New trial. Courts. Vacation. Before Judge Buchanan. Heard County. At Chambers. January 27, 1879.</p> <p>Moreland ruled Stephens, the sheriff, to show cause why he should not pay oyer to him certain moneys in his hands for distribution. Whitaker also claimed the fund upon an execution held by him. At the September term, 1878, an order was taken by consent, providing for the hearing of the issues thus formed by the judge in vacation. He adjudged that the sum in controversy be paid out fro rata to the two executions. Moreland moved for a new trial upon several grounds. It was overruled and he excepted, the sole error assigned being the refusal of such motion.</p>

<p>Municipal corporations. Levy and sale. Before Judge Tompkins. Chatham Superior Court. October Term, 1878.</p> <p>Several justice court fi. fas. in favor of Curry against the Mayor, etc., of Savannah, were levied on a house and lot. Defendant filed an affidavit of illegality to each fi.fa., one ground of illegality being that defendant is a municipal corporation “ and owns the said property levied on in that capacity and in the performance of its functions in the administration of the powers of government delegated to it; and so the deponent says that the said land is not subject to levy and sale under execution.” On the hearing before the magistrate, he rendered judgment for the plaintiff, and defendant appealed. In the superior court plaintiff filed a traverse to the affidavits, but it was dismissed as coming too late. All the cases were heard together. By consent the affidavit of illegality was amended by adding that the property levied on “ had been used for a place for keeping a hi e-engine and apparatus under the ordinances of said city, and were at the date of levy held, and likely to be used, for such municipal purposes again, but were not in such actual use nor used in any manner at the moment of levy.”</p> <p>Plaintiff demurred to the amended affidavit; the demurrer was overruld, and the levies dismissed. Plaintiff excepted.</p>

Claim. Judgment. Before Judge Lester. PauldingSuperior Court. August.Adjourned Term, 1878. Plenderson, a purchaser of property from Roberts, against whom Hill held a judgment, moved to set aside the same upon the following grounds: 1. Because there was no verdict of a jury upon which to enter up any legal judgment for the plaintiff, a plea having been regularly filed at the March term, 1868, the appearance term. 2.

Practice in the Supreme Court. Judgment. Practice in the Superior Court. New trial. Before Judge Speer. Spalding Superior Court. August Term, 1878. The case was a rule against an attorney. At the February term, 1878, of Spalding superior court, an order was taken authorizing the presiding j'udge to hear and determine the law and facts in vacation, with right of exception as though tried by a jury in term time. On the 17th of May, 1878, the judge determined said case.

<p>Guardian and ward.. Ordinary. Jurisdiction. Lunatic. Service. Judgment. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1819.</p> <p>On February 10, 1879, William H. Sims; of Lowndes county, Miss., and S-. A. M-. Morton and John B. Morton, of Oglethorpe county, Georgia, filed their petition in the court of ordinary of the county last aforesaid, representing that James S. Sims, of said county, on account of imbecility from infirm health and old age was incapable of managing his estate, and liable under the laws of Georgia to have a guardian appointed in his behalf ;• that they were the three nearest adult relatives of said imbecile residing in this state to whom notice could be given under the statute. The premises considered, they prayed that a commission be issued to eighteen discreet and proper persons, one of whom should be a physician, requiring any twelve of them, including the physician, to examine by inspection said James S. Sims, and to examine witnesses on oath if necessary as to his condition and capacity to manage his estate, and to make their return touching said inquiry as required by law, and that upon such return being made in accord with the allegations of this petition, that the court would appoint said John B. Morton guardian, etc.</p> <p>On the same day the ordinary issued a commission as prayed for. On the succeeding day the commissioners reported their finding to be in accordance with the allegations of the petition. Whereupon the ordinary passed an order reciting the foregoing report, and appointing John B. Morton guardian of the person and property of said James S. Sims, upon his giving bond and security in the sum of $20,000.00, and taking the oath required by law.</p> <p>On March 5th thereafter, James S. Sims moved that the judgment appointing the guardian be set aside on the following grounds:</p> <p>1. Because the movant was never served with a copy of the proceedings on which said judgment was based, nor did he waive service, or authorize any one to make such waiver for him.</p> <p>2. Because the petition does not bear date ten days before the same was heard and determined.</p> <p>3. Because no guardian ad litem was appointed by the court to represent movant, when the pleadings show that his three nearest adult relatives were the petitioners, and as such proceeding against him.</p> <p>4. Because the record does not show that the movant was examined by inspection as required by law, or in any other manner examined by the commission or court.</p> <p>5. Because the order of the ordinary does not recite a compliance with the requisition of the law as to notice of the proceedings, nor does the record anywhere show such compliance.</p> <p>Service of the motion was had, and by consent it was heard on April 14th following. At the hearing, petitioners prayed that the judgment rendered on February 11 past, be so amended as to state the fact that the said James S. Sims was then and there present at the trial, and represented by Samuel Lumpkin, an attorney of this court, as his counsel, and that said counsel consented to said judgment. The amendment was ordered over the objection of counsel for movant. The ordinary then overruled the motion to set aside the judgment appointing the guardian. From this decision James S. Sims appealed to the superior court. On the hearing in that tribunal, the judgment of the ordinary was reversed, and the appointment of the guardian ordered vacated. To this judgment Morton, guardian, excepted.</p>

Practice in the Superior Court. Before Judge Lawson. Putnam Superior Court. March Term, 1879.

Railroads. Non-suit. Before Judge Buchanan. Campbell Superior Court. February Term, 1879. Vickers, by next friend, brought case against the railroad company for a personal injury, laying his damages at $20,000.00.

<p>Upon breach of a bond to make title to land, where the purchaser buys up the outstanding title thereto, the measure of damages is what the outstanding title actually cost him ; and on a suit by the vendor for the purchase money, such actual cost only can be set of£ against the note.</p>

<p>Injunction. Dower. Before Judge McCdtciien. Bar-tow County. At Chambers. November 19, 1879.</p> <p>Mrs. Rainey filed her bill against certain judgment creditors of her deceased husband, and the sheriff of Bartow county, setting up her right to dower, though not yet assigned for reasons stated, her possession of the dwelling house, and praying that the defendants be enjoined from selling such house under execution, and interfering with her occupancy, etc.</p> <p>The injunction was ordered, and the creditors excepted.</p>

<p>1. The evidence being conflicting but sufficient to uphold the verdict of the jury for either party, and the presiding judge having declined to set it aside, the rule of this court is inflexible not to interfere unless some error of the court on the trial is made to appear in the record.</p> <p>2. If the proprietor of a toll-bridge knows of a defect therein, dangerous to passengers and likely to result in damage, and the dangerous defect is not exposed so that the passenger can also see it, and taking toll from the passenger, allows him to cross without warning, the proprietor is liable for damages; aliter, if the defect is not dangerous and likely to result in damage, but in the judgment of the proprietor slight and thought to have been safely repaired ; and a request to charge which does not guard this distinction was properly refused. The proprietor of a bridge is only liable for ordinary-care and diligence, and beyond this is not an insurer.</p>

Possessory warrant. Corporation. Before Judge Tompkins. Chatham Superior Court. October Adjourned Term, 1878. This case arose upon the following affidavit: “State op Georgh a — Chatham County. “To any lawful constable to execute and return.

Practice in the Supreme Court. Criminal law. Charge of Court. Before Judge Hillyer. Clayton Superior Court. March Term, 1879. To the report contained in the opinion, it is only necessary to add that three grounds of the motion for new trial were as follows: (1.) Because the verdict was contrary to law and the evidence. (2.) Because the court failed to charge the law of involuntary manslaughter. (3.) Because the court failed to charge the law touching the prisoner’s statement.

<p>Ono who enters into the possession of land under a parol contract of purchase, hut who has paid no part of the purchase money to the holder of the legal title, is not seized as against the latter and those claiming under him; and on the death of the person thus in possession, even after he has tendered the purchase money, his widow is not dowable of the land. Title.to realty does not pass by pur. chase without an actual conveyance, so long as the agreed purchase money is unpaid. Tender is not payment.</p>

■ Evidence. Administrators and executors. Title. Sales. Before Judge Lester. Gilmer Superior Court. May-Term, 1879. Griswold brought complaint for land against Coggins.' Plaintiff claimed by virtue of a deed from the executors of Brown. The jury found for plaintiff. Defendant moved -for a new trial. It was refused, and defendant excepted. For the other facts, see the opinion.

County matters. Parties. Ejectment. Deed. Color of title. Prescription. Fraud. Before Judge Fleming. McIntosh Superior Court. May Term, .1879. On September 19, 1878, the county commissioners of McIntosh county brought complaint against James B. Bennett and his wife for a lot of land in the city of Darien and mesne profits.

<p>Wills. Estates. Husband and wife. Title. Before Judge Simmons. Houston Superior Court. May Term, 1879.</p> <p>Reported in the head-notes and opinion.</p>

County matters. Roads and bridges. Judgment. Certiorari: Before Judge Underwood. Floyd Superior Court. March Term, 1879. Meyerhardt petitioned the commissioners ’of roads and revenue of the county of Floyd, substantially as follows: He is the owner of lot of land 45, in the 22d district and 3d section of said county. For fifteen or twenty years he has used a road or private way to his said farm running-over land now owned by Allen and Jones.

<p>Bankruptcy. Before Judge Snead. Burke Superior Court. November Adjourned Term, 1878.</p> <p>Reported in the opinion.</p>

Criminal law. Demurrer. Evidence. Witness. Practice in the Superior Court. Alibi. Accomplice. Threats. Charge of Court. New trial. Before Judge Crisp. Lee Superior Court. March Term, 1879. Jackson, Jones and Daniel were jointly indicted for the murder of Whitsett, alleged to have been committed on the 13th of October, 1878. The defendants severed and Jackson wras first placed on trial. The evidence against him consisted mainly of the testimony of Daniel, an accomplice.

<p>Evidence. Contracts. Minor. Title. Ejectment. Equity. Before Judge Pottle. Wilkes Superior Court, May Term, 1879.</p> <p>Beported in the opinion.</p>

<p>1. Where there has been opportunity to raise a question as to the sufficiency of the notice of a motion for a new trial, and it has not been raised in the court below, nor iuled upon by the presiding judge, the question is not here for review.</p> <p>2. A creditor of an insolvent estate who is under injunction not to sue the executor, has a good excuse for not obtaining judgment on his debt before proceeding by hill in equity to set aside a voluntary conveyance made by the testator in his life-time; and if, during the pendency of the bill, a judgment or decree establishing the amount of the debt is obtained against the executor, the same may he brought into the bill by'way of amendment, and may thus be used as effectively as if the adjudication had preceded the filing of the hill and had been alleged therein originally.</p> <p>3. If one of several defendants to a bill brought by an executor to marshal assets, answers and turns his answer into a cross-bill against certain of his co-defendants, who are voluntary donees of property under the testator, (such cross-bill praying that the voluntary conveyances be set aside because void as to creditors,) one of the co-defendants to the executor’s bill not made a party to the cross bill may, before decree on the cross-bill, file a separate and independent bill to accomplish the same object in his behalf which the cross-bill seeks to accomplish in behalf of the complainant therein, and the complainant in such independent bill will not be bound by the result of the litigation on the cross-bill, be being no party to the same though a party to the original bill with which the cross-bill is connected.</p> <p>4. Where the bill attacks voluntary conveyances solely on the ground that -the donor was insolvent, making no charge as to any actual fraudulent intent, such an intent apart from the alleged insolvency is not in question, and no instructions to the jury which do not look to insolvency as a necessary fact to be established are appropriate.</p> <p>5. The amount of the donor’s liabilities as compared with his resources at the time he executed the conveyances sought now to be set aside, being a vital point in the case, the allusion of the court to “bogus” debts or claims in charging the jury, with the use by the court of that epithet iu connection with matter charged at the request of complainant’s counsel, would seem objectionable; and a new trial having been granted below, the judgment granting it will not be reversed.</p>

<p>Where three are indicted for riot in unlawfully assaulting, beating, wounding, and otherwise maltreating another in a violent and tumultuous manner, and the evidence is that two of the three struck and wounded that other by throwing rocks at and hitting him on the head, all acting in a violent and tumultuous manner:</p> <p>Held, that the two were properly convicted of riot under the indictment; and though the testimony as to the persons who began the rocking is conflicting, yet there being enough to uphold the verdict, and the presiding judge approving it, this court will not interfere.</p>

<p>1. The defendant in fi.fa., who claimed the fund as exempted by the ordinary, not having been served with the bill of exceptions, this court will not review the judgment of the superior court on the validity of that exemption.</p> <p>2. The exemption of the fund being treated as valid, an unrecorded mortgage for purchase money will take in preference to one duly recorded to secure a debt not within any of the exceptions of the constitution rendering the exemption liable — both mortgages having been foreclosed, and the executions in the sheriff’s hands.</p>

Practice in the Supreme Court. September Term, 1879. A fi.fdh. in favor of Bryan against Daniel was levied on certain land, which was claimed by Smith.

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

<p>Evidence. Title. Prescription. Before Judge Tompkins. Chatham Superior Court. May Term, 1878.</p> <p>■To the report contained in the opinion it is only necessary to add the following:</p> <p>Shiels brought ejectment against Roberts. The case turned upon the defense of prescriptive title by reason of twenty years’ possession in himself and those under whom he claimed. The jury found for the defendant. Plaintiff moved for a new trial on the following, among other grounds:</p> <p>(1) . Because the court ruled out testimony showing that the structures on lot No. 18 claimed by defendant were dilapidated and of little or no value.</p> <p>(2) . Because the court admitted testimony tending to show that those under whom defendant claimed the title to lot No. 17, had always occupied and used as belonging to them that part of the building which projected on to the adjoining lot No. 18.</p> <p>(31. Because the court refused to charge that “possession originating in mistake is not adverse until discovered.”</p> <p>(4) . Because the court refused to charge that “ defendant must show possession in himself, and cannot tack to his the possession of another, unless he show deeds conveying the land so held.”</p> <p>(5) . Because the verdict was contrary to law and evidence.</p> <p>The motion was overruled, and plaintiff excepted.</p>

Criminal law. Murder. Continuance. Jury. Witness. Evidence. Hes gestee. Charge of Court. Prisoner’s statement. New trial. Before Judge Hiultbr. Eultou Superior Court. April Term, Í879. Cox was placed on trial for tbe murder of Alston, alleged to have been committed on March 11, 1879. The indictment was found on April 3d following, and the case called for trial on the 29th of the same month.

Equity. Injunction. Nuisance. Municipal corporations. Before Judge Hillter. Fulton County. At «Chambers. October 21, 1879. In 1862 one Lewis owned a block in the city of Atlanta. In order to sell it to the best advantage, he laid out an alley running through the block, and sold the land in lots, the deeds specifying that the lots extended to the alley, but saying nothing of the uses to which it was dedicated.

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

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

Practice in the Supreme Court. September Term, 1S79.. In this case O. G. Gurley, Esq., the counsel who brought, the case up by writ of error, made an affidavit in which he-stated that “ the clerk of Miller superior court has failed to send up in said record the motion of plaintiff in error and brief of evidence, which affiant avers were both made out and filed in said clerk’s office in terms of the law,” and suggested a diminution of the record on account of the absence of…

Trust. Judgments. Claim. Before IL X. McCay,. Esq., Judge pro hae vice. Fulton Superior Court. April. Term, 1879. Numerous issues were made upon the trial of .this case-which, in view of the decision rendered, have become entirely irrelevant. The following facts are sufficient to am understanding of the decision : Tucker filed a bill against Elumb, as trustee for ; Mrs-..

<p>1. Remarks made by a juror before he had been impaneled indicating bias, may be explained by him, and if made simply for the purpose of avoiding jury duty, the fact that he was taken upon the jury which convicted defendaut will not necessitate a new trial.</p> <p>(a.) That one of the jurors in a criminal case conversed with his wife ' apart from the others, is no ground for new trial, where it appears that the conversation had no reference to the case, and was had with consent of defendant’s counsel.</p> <p>(J.) Objections to a juror propter defee urn are too late after verdict.</p> <p>(e.) A juror on being polled replied to the question “Is that your verdict?” “I agreed to it.” This answer was objected to and the court again propounded it, when he said, “I agreed to it, I suppose.” The court said that the juror was not asked for a supposition but for what the juror knows, “Is this your verdict or is it not?” The answer was “I suppose it is, if that is a proper answer to your question.” “You are an intelligent man, Mr. Randall, please answer me?” “Yes, sir, I agreed to it,” was then the answer. Thereupon the verdict was received over defendant’s objection:</p> <p>Held, that the verdict was properly received. Nor can the juror impeach it by subsequent affidavit.</p> <p>2. The idea of prevention or defense against an impending or progressing wrong must enter into all cases of justifiable homicide. To deliberately kill in revenge for a past injury, however heinous, after reason has had time to resume its sway, cannot be justifiable,</p> <p>(a.) The court charged that if Hill came upon Simmons suddenly and without premeditation, and his passions were aroused thereby, and in his (Hill’s) belief, Simmons had a pistol, and enraged on seeing the adulterer for the first time after his knowledge of his guilt, he shot him and killed him, then the offense would not be murder, but manslaughter; but if the attack was premeditated and deliberate, and not upon a sudden burst of uncontrollable passion, then it would be murder.</p> <p>Held, that the charge was right and warranted by the evidence.</p> <p>(5.) As to the comparative weight of the evidence and the prisoner’s statement, this case is controlled by the ruling in Oox vs. State, last term.</p> <p>(e.) The charge was not argumentative or partial.</p> <p>(d.) The constitution of 1877 does not alter the law in regard to the jury being judges of the law and fact in criminal cases. It simply re-enacts the provisions'of the Code as they already stood, and emphasizes them by insertion in the fundamental law.</p> <p>8. Newly discovered evidence which is merely cumulative to that introduced on the trial, not ground for new trial.</p> <p>(a.) Insanity was not pleaded. Had it been the record does not show that the plea would have been sustained. If the defendant deliberately slew the deceased in revenge for adultery with his wife, he would not be protected by the fact that he labored under a delusion as to her character for virtue. If he is now a lunatic he can be removed to'the asylum on proper proceedings had therefor.</p> <p>4. The verdict is supported by the evidence.</p>

<p>Torts. Railroads. Minors. Parent and child. Damages. Before Judge Snead. Burke Superior Court. November Adjourned Term, 1878.</p> <p>Reported in the decision.</p>

<p>Levy and sale. Executions. Presumptions. Before Judge Wright. Decatur Superior Court. November Adjourned Term, 1878.</p> <p>Reported in the decision.</p>

Landlord and tenant: Contracts. Lien. Claim. Evidence. Before Judge Wright. Webster Superior Court. April Term, 1879.

<p>1. Though a note be payable to an assignee in bankruptcy, or bearer, and though sued in his representative capacity, yet the courts of the state have jurisdiction thereof. Any person in possession could have maintained such suit, and the formal language describing the representative capacity of plaintiff may be treated as surplusage.</p> <p>3. Even if the above principle be incorrect, yet the plaintiff was proceeding by authority of an order of the United States court passed under the act of congress of June 33,1874, and had so alleged in an amendment to his declaration.</p>

<p>Charge of Court. New trial. Before Judge Speer. DeKalb Superior Court. March Term, 1879.</p> <p>To the report contained in the decision it is only necessary to add that the court charged in substance as follows :</p> <p>That unless Morrison notified Thomas 0. Howard at the time he delivered the note and received the money, that Bryce had signed the note on condition that Alston would sign also, and that it was not to take effect until Alston did so sign, Bryce could not be discharged on that ground.</p> <p>That, although Bryce may have signed the note on condition that Alston should also sign, and Howard had notice of this at said time, and there may have been a new contract entered into between Morrison and Howard after the maturity of the note without Bryce’s knowledge or consent at the time it was made, whereby indulgence was given to Morrison for a year or more for a valuable consideration, yet if afterwards fhe knowledge came to Bryce that the note was delivered to Howard on the receipt of the money by Morrison without the signature of Alston, and the knowledge also came to him afterwards of the terms of the indulgence to Morrison for a valuable consideration, and the jury is satisfied from the evidence that Bryce either expressly or impliedly ratified both of said acts, Bryce would be liable to plaintiff; but if said knowledge and acts of Bryce did not amount to a ratification, then they are circumstances for the jury to consider in coming to a conclusion as to whether or not it is true that Bryce signed only on condition that Alston should also sign, and which was communicated to Howard at said time, and whether or not1 it is true that there was any new contract for a valuable consideration to give Morrison indulgence.</p> <p>That if after the note became due Morrison made with Howard a new agreement to extend the time for the payment of the note, and he received for it a valuable consideration — received money for it — without the consent of Bryce, it would release the security.</p>

<p>New trial. Before Judge Clark. City Court of Atlanta. June Term, 1879.</p> <p>Reported in the decision.</p>

<p>Where the grantor, in consideration of $25.00, and of the building of the railroad, conveyed to a company, its successors or assigns forever, in fee simple, the right of way through his land, and added in the deed the following words: “It is hereby agreed and understood a depot and station is to be located and given to said Osborne Reeves, on the land or strip above conveyed, to be permanently located for the benefit of said Osborne Reeves and his assigns, and to be used for the general purposes of the railroad company,” the grantee, by accepting such deed, entered into a covenant to comply with its terms, and this covenant ran with the land and became obligatory upon any second company which became the purchaser, under proper legal direction, of all the rights, privileges, franchises and property of the former.</p>

<p>A motion made March. 31st, 1879, to set aside a decree rendered in 1871, was, on its face, barred by the provisions of the act of February 15th, 1876, and was demurrable.</p>

<p>Tax. Constitutional law. Before Judge Crisp. Webster County. At Chambers. December 6, 1879.</p> <p>Reported in the decision.</p>

Administrators and executors. Judicial sales. Before Judge Simmons. Crawford Superior Court. March Term, 1879. Moore was the successor of Smith as administrator upon the estate of Culverhouse. The case is sufficiently reported in the opinion.

<p>B. was indicted for stealing a cow from H.; was tried and acquitted. He was again indicted for stealing a cow from H., the description being different from that in the first indictment. He pleaded autre fois acquit. On the trial, it appeared that H. never had but one cow, and it was for the stealing of that cow that B. was indicted, and concerning it H. testified in both cases:</p> <p>Held, that a verdict of guilty was contrary to law.</p>

<p>1. A bill filed by a sister against a brother to compel the conveyance to her of certain property, the title to which had been taken in him under a purchase made by her, to secure the payment of the notes for the purchase money which had been given by him, and upon a verbal agreement to convey to her for life with remainder to her children, on the payment by her of said notes, which payment she alleged had been made, is not a proceeding to change the deed to the brother from a fee simple to a conditional title. Evidence of such agreement and payment was admissible, without infringing the rule that it is not competent to engraft an express trust upon a written deed by parol proof.</p> <p>2. The verdict for the complainant is supported by the evidence, except in a small matter of calculation, which is ordered corrected.</p>

Interest and usury. Pleadings. Verdict. Before Judge Hillyer. Fulton Superior Court. September Term, 1879. To the report contained in the decision it is only necessary to add the following : Brumby, trustee, brought complaint for land against Mrs. Finney, claiming title under a deed from the assignee in bankruptcy of Finney, defendant’s husband. She filed the pleas set out in the decision, in 1879. On motion the court struck the last three.

Nuisance. Actions. Damages. Before Judge MeCutchen. Catoosa Superior Court. August Term, 1879. Felker sued Chase and Calhoun, (now represented by Calhoun, executor,) for damages caused by the' overflow of plaintiff’s land, resulting from a mill-dam.

<p>Equity. Tax. Amendment. Before Judge Snead. Richmond Superior Court. October Term, 1879.</p> <p>Reported, in the opinion.</p>

<p>Claim. Pleading. Parties. Guardian and ward. Equity. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1378.</p> <p>A fi.fa. in favor of Toole against Shealy was levied on •certain land, which Shealy claimed as guai’dian of Susan Y. ■Shealy., He filed the equitable plea set out in the decision, which the court struck. It was then proposed to make the minor, by Elbert A. Shealy as next friend, the party claim-ant in lieu of the oiiginal claimant, and thus assert her equitable lights: This the court refused to allow. The jury found the property subject. Claimant excepted, and assigned error on the above rulings.</p>

Jurisdiction. Waiver. Notice. Us pendens. Administrators and executors. Judgment. Lien. Title. Before Judge Weight. Dougherty Superior Court. October Term, 1879. To the report contained in the decision it is only necessary to add that the decree under which this levy was made, specified that the amount recovered was a charge on the land, and that- it be seized and sold to pay the same.

<p>Injunction. Municipal corporations. Streets. Before Judge Crisp. Sumter County. At Chambers. February 17, 1880.</p> <p>Reported in the opinion.</p>

<p>An indigent sister and her children, though mainly dependent on the-applicant for support, do not constitute a family .for whose benefit he can take a homestead. To constitute one head of a family within the meaning of the homestead clause of the constitution of 1868, there must be some legal obligation on him to support its members.</p>

<p>Promissory notes. Gift. Title. New trial. Before Judge Underwood. Floyd Superior Court. September Adjourned Term, 1879.</p> <p>Hill, as administrator of Joseph A. Davis, deceased,, brought complaint for the use of Elizabeth Davis, against Sheibley, on the following written instrument:</p> <p>“ Received, Rome, August 13, 1866, of Dr. Joseph Davis, five hundred dollars, to be appropriated on joint account to buying property-in the city of Rome, or in case of no investment to be returned.' (Signed) P. M. Sheibley,”</p> <p>Defendant filed the following pleas : ';</p> <p>1. The general issue.</p> <p>2. That the plaintiff is not the owner of the paper sued on; that the paper was sold by Hill, as administrator, and bought by one Goodwin for defendant.</p> <p>3. -Discharge in bankruptcy.</p> <p>4. That the debt had been paid in tobacco.</p> <p>The usee claimed by reason of the following state of facts, which the evidence in her behalf tended to show: That Joseph A. Davis-gave the instrument to his father, •who failed to collect it. Whether it was an absolute gift seems somewhat doubtful. On this point the testimony of the father was as follows : “ He gave it to me to collect the money on from Sheibley.....I can’t say whether my son gave it to me for my own use or not, as he gave it without saying anything, but I think it was his intention to give it to me for my own use.” After the son’s death the father gave it to the widow. Her own testimony on this subject is as follows: ‘‘ I am the owner of said receipt! I got it from William Davis, father of Dr. Joseph A. Davis, my husband, on or about the' 20th or 21st day of October, in the year 1867. Dr. J. A. Davis died on tlie 18th of October, 1867. His father, William Davis, did not reach Atlanta until the next day, and after his corpse had been sent off for interment. Mr. William Davis had the receipt in his possession ; claimed it as bis own ; said Dr. Joseph A. Davis had given it to him some time previous; but as Dr. J. A. Davis was now dead, and had left witness, his widow, and one little child, he, Mr. William Davis, did not think it was right for him to keep it, and that he would give it to witness. Accordingly he then and there, in the house of witness in Atlanta, at or about the time above mentioned, and in the presence of Mrs. William Taylor, of Macon, Georgia, delivered said receipt to witness as her property, and there and then transferred to witness all the right and title which he had and held to said receipt by virtue of the previous gift of the same by Dr. J. A. Davis to him. * * *</p> <p>“ Said receipt was for a short time in the possession of D. P. Hill, administrator. It came about in this way : When William Davis gave said receipt to witness, within a day or two after her husband’s death, she had no place to keep anything of the kind, and she naturally, as women similarly situated would do, placed said receipt among her husband’s papers. When an administration was granted and an inventory and appraisement took place, Mr. D. P. Hill took possession of all the papers belonging to the estate, and, among the rest got into his possession the receipt of P. M. Sheibley. As soon as witness found that Mr. D. P. Hill, the administrator, had possession of- said receipt and claimed the same as the property of the estate, witness went to him and claimed the same as her property, and upon a statement in substance as above to him, he, as administrator, delivered the same to witness, and it has been in possession of herself or of her counsel ever since.”</p> <p>Defendant, on the other hand, claimed that one Goodwin, for defendant’s use, had bought this claim at administrator’s sale from Hill, administrator. The evidence showed that Hill did offer at his sale what sometimes is called by the witnesses “ a note” and sometimes “ a claim ; ” that this instrument or claim was on P. M. Sheibley, bore date August 13th, 1S63, and was for $500.00; that Hill did not have it at the sale, but told Goodwin, the purchaser, that he would deliver it. He says the delivery was to be “when he found it,” and that he had never found it. Goodwin says that Hill told him to call at his office for the paper, which he did several times, but failed to get it. It also appeared that Goodwin’s purchase was made for Sheibley.</p> <p>As to the other pleas the evidence was conflicting.</p> <p>The jury found for plaintiff $500.00 principal, besides interest. Defendant moved for a new trial, w7hich was granted, and plaintiff excepted.</p>

<p>Injunction. Homestead. Contracts. Deed. 'Before-Judge Speer. Henry County. At Chambers. February 12th, J880. . .. -</p> <p>Reported in the opinion.</p>

<p>A judgment was rendered on January 27th, 1875, disbarring an atlorney from tbe courts of this state. On February 15th, 1876, an act was passed providing that “ all proceedings of every kind in any court of this state, to set aside judgment and decrees of the courts, must be made within three years from the rendition of said judgments or decrees.” On May 24th. 1879, a motion was made to set aside the order of removal:</p> <p>' Held, that the motion was barred by the statute. If injustice has been' done the movant, his own laches prevents this court from granting him relief.</p>

Witness. Evidence. Partnership. Charge of Court. ■Statute of limitations. Yerdict. Before Judge MoCotchen. ■Catoosa Superior Court. September Term, 1879. To the report contained in the decision it is only neces■sary to add that the following were among the grounds of the motion for new trial: (1.) Because the verdict is contrary to law, contrary to •evidence, strongly and decidedly against ' the weight of the •evidence, and against the principles of equity and justice.

<p>Injunction. Dowen Before Judge Wright. Mitchell ■county. At Chambers. April 16th, 1880.</p> <p>Report unnecessary.</p>

<p>When the maker of a negotiable draft or note pays it to one who has not the possession of the paper at the time of such payment so as to enable him to take it up, but, instead thereof, takes a receipt for the money so paid, such receipt will not protect him from the pay ment of the draft or note when sued by the bona fide holder thereof before due.</p>

•Evidence. Yerdict. Before Judge Crisp. Macon Superior Court. December Term, 1879. Williams filed liis bill against English, alleging, in brief, as follows : Allen Williams, the father of complainant, died on January 29th, 1867, seized of a certain described lot. After his death his widow, Annie Williams, remained in possession. In February, 1874, the lot was sold at sheriff’s sale, and English, who was the son-in-law of Mrs. Williams, bought it.

<p>1. Under the constitution of 1868 and the act of 1869, the distinction theretofore existing between grand and petit jurors was destroyed. The names of jurors, whether grand or petit, were drawn from the same box, and the presiding judge might send litigants before the twenty-four petit or the twenty-three grand jurors m his discretion, but there was no provision that if either should fail to furnish a complete legal panel, he might supplement from the other. Under the constitution of 1877 the distinction is re-established, and whilst the grand jurors may be called upon in certain cases to do traverse jury service, yet where all but fifteen of the grand jury have been stricken for cause, there is no law to authorize the completing of the panel to twenty-four from the list of traverse jurors.</p> <p>2. The judge has not the power to indicate who shall be placed upon a panel as jurors to complete it. Where the grand jury does not furnish a full panel of competent persons, he has no power to direct the clerk to supplement from the first names upon the list of traverse jurors. These additions were talesmen selected by the judge, and taken from a different class of persons from those whom he had de;, termined should try the case.</p> <p>2. The attestation of a will must be made at a time and place where the testator can see that he is not imposed upon, and can have cogni zance of the persons and the act. There must be no obstruction to prevent his seeing it; his position must be such as to enable him, without change of situation — not position — to see the witnesses subscribing the will, by looking in that direction and bringing within the scope of his vision the factum of the attestation.</p>

<p>Promissory notes. Equity. Pleading. Before Judge Simmons. Crawford Superior Court. March Term, 1879.</p> <p>Reported in the decision.</p>

.Jurisdiction. Courts. Injunction. Before Judge Lester. Fulton County. At Chambers. January 26th, 1880. . Wilcoxon, administrator, filed his bill to marshal the assets of the estate, and for injunction against the sheriff of Fulton county, and the Northwestern Mutual Life Insurance Company and others.

<p>1. Where neither the judge who presided at the trial, nor the one who-passed on the motion for anew trial, revised and approved the brief of evidence, and no legal reason is given for such failure, this court cannot hear the case except as to such assignments of error a do not depend upon the evidence for their decision.</p> <p>2. The judges of the superior courts of this state may alternate and preside for each other, although neither one be disqualified to sit in the cases tried. When the superior court of Fulton county was regularly convened by Judge Hillyer, of the Atlanta circuit, who thereupon announced that Judge Tompkins, of the eastern circuit, would preside for him, and retired, Judge Tompkins was clothed with full judicial authority to hold that court, whatever might be held as to the judicial tribunal set up by Judge Hillyer iu another room in the same building.</p>

Courts. Evidence. Judgments. Presumptions. Practice in the Superior Court. ■ Before Judge Hillyer. Fulton Superior Court. September Term, 1879. A. fi. fa. in favor of the state vs. Gaskill was levied on certain property, which was claimed by Gaskill et al. On Ijie trial claimants moved to dismiss the levy because of defects in the fi. fa. • the motion was sustained and the levy dismissed.

<p>Practice in the Superior Court.' Verdict. Before Judge Speer. Rockdale Superior Court. August Term, 1879.</p> <p>To the report contained in the decision it is only necessary to add that the court ordered the ejectment case of Cheney et al. vs. Rosser and the equity case of Rosser vs. Cheney et al., brought to enjoin the ejectment case, to be tried together, over the objection of defendant in ejectment, and this is one of the errors complained of.</p>

<p>Illegality. Judgments. Justice Courts. Before Judge Simmons. Upson Superior Court. November Term, 1879.</p> <p>Report unnecessary.</p>

<p>1. The question of the sale of certain property being submitted to arbitration, a part of it being in the possession of the vendee, an award that the vendor “ retain all the property, both real and personal, sold by him,” includes a re-delivery of that already delivered to the vendee. In a suit under the award for the amount awarded' to the vendee, property retained by him is a proper deduction, the burden of proof being on defendant.</p> <p>2. The award itself is the best evidence of its meaning. The testimony of one of the arbitrators as to what was intended, and his construction thereof, was not admissible.</p> <p>8. An award which provides that the vendor retain the property sold and pay to the vendee $1,800.00, does not make re-delivery of property in the hands of the vendee a condition precedent to recovering the amount awarded to him. The value of property retained by the vendee would be a proper deduction from such amount in a suit therefor.</p>

<p>Practice in the Supreme Court. Yerdict. Evidence. Fraud. Contract. Before Judge Buchanan. SpaldingSuperior Court. August Term, 1879.</p> <p>Beported. in the decision.</p>

<p>Certiorari. Practice in the Superior Court. Sales-Delivery. Before Judge IIillyer. Fulton Superior Court. October Term, lSYO.</p> <p>Reported in the opinion.</p>

<p>Attorney and. client. Lien. Verdict. Before R. W. Carswell, Esq., Judge pro hac vice. Glasscock Superior Court. August Term, 1879.</p> <p>Reported in the decision.</p>

Arbitrament and award. Evidence. Practice in the Supreme Court. Charge of Court. New trial. Before Judge Speer. Newton Superior Court. September Term, 1879. In 1864 Green B. Almand died testate.

<p>Production of papers. Evidence. Witness. Estoppel. Husband and wife. Prescription. Before Judge Ckisp. Sumter Superior Court. October Adjourned Term, 1878.</p> <p>Reported in the opinion.</p>

<p>Certiorari, lies adjudicóla. Practice in the Superior Court. Before Judge Speer. Pike Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

<p>1. A guano note which contains the clause “guano sold and guaranteed under analysis of Dr. Means, inspector, Savannah, which ' analysis has been submitted to me,” does not by implication exclude the defense that the fertilizer is not reasonably suited to the purposes for which it was sold.</p> <p>2. If a contract is of doubtful meaning, it is to be construed against the party who drew it.</p>

<p>Criminal law. Arson. Confessions. New trial. Before Judge Speer. Monroe Superior Court. September Term, 1879.</p> <p>Reported in the opinion.</p>

Garnishment. Before Judge Buchanan. Carroll Superior Court. October Term, 1879. Adamson was a judgment creditor of one Snow. On December 2nd, 1878, he sued out summons of garnishment, which was served on Hearn the same day. This summons called upon Hearn to answer at the December term of the justice court. At the bottom of the summons was a “ P. S.,” without date or signature, notifying the garnishee to answer in ten days. The December term was on December 14th.

Contracts. Lien. Assignment. Trust. Equity. Notice. Before J u’dge Simmons. Crawford Superior Court. March Term, 1879. This was a bill filed by the children of one W. G. Prater against him, the bank, and the sheriff of Crawford county.

<p>1. Wheu'a guardian, who was also the husband of his ward, transferred an execution in his favor as guardian to certain creditors as collateral security for supplies, and they collected money thereon, the remedies of the wife were twofold: First. Those of a ward to call her guardian to an account. Second. Those of a wife, to recover from a creditor who knowingly receives, in payment of his debt, money belonging to his debtor’s wife.</p> <p>2. Where the action belongs to the latter class, it is competent for the defendants to show that the money was received in payment of the debt of the wife; that though these goods were charged to the husband, yet the quanity sold to and used on the wife’s place amounted to more than the sum received on the execution, and this after her consent to the transfer; that the husband was insolvent, and credit was refused him.</p>

Garnishment. Contracts. Before Judge Clark. City Court of Atlanta. December Term, 1879. In 1879 Moore sued out a garnishment against McCown, which was served on the Western & Atlantic Railroad.

<p>Where the evidence as to the diligence used by the employees of a railroad was conflicting, the presumption of negligence being in all cases against the company, and the jury find for the plaintiff, and the presiding judge is satisfied with the verdict, this court will not interfere.</p>

<p>1. A plea to a suit on a foreign judgment which appertains wholly to matters occurring anterior to such judgment, and which, with the exemplification of the record, shows great negligence in failing to set up such defense to the original action, was properly dismissed on demurrer; especially where the facts pleaded would have constituted no defense.</p> <p>2. Since May, 1790, the records and judicial proceedings of the courts of any of the states are admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, together with the certificate of the judge that the attestation is in due form.</p> <p>8. The verdict is contrary to law in being for seventy-four dollars and eighty cents more than is authorized by the exemplification of the record of the foreign judgment; a reversal must therefore be had unless this amount be written off.</p>

<p>An ordinance of the city of Griffin provided that “no person or persons shall keep a livery or sale stable, or let out horses or mules or other stock, carriages, buggies or other vehicles * * without first obtaining a license * * * provided, that nothing in this section shall be so construed as to allow any' person to run a dray for hire.” Another section provided that “no person shall run a dray, cart or other carriage in the city of Griffin for the purpose of hauling for the public, goods, produce, wares or merchandise of any description” without a license:</p> <p>Held, that one who had taken a license as the keeper of a livery stable might hire out a two-horse wagon by the day for the purpose of hauling lumber without obtaining a license to run a dray.</p>

<p>The county court of Bockdale county being governed by the same law in respect to appeals as justice courts, an appeal therein must be entered within four days from the decision. It is not sufficient that it be within four days from the adjournment of the court at which the decision was rendered.</p>

<p>Pleadings. Set-off. Recoupment. Before Judge Underwood. Floyd Superior Court. September Term, 1879.</p> <p>Reported in the decision.</p>

Title. Warranty. Covenant. Contracts. Before Judge McCutohen. Whitfield Superior Court. October Adjourned Term, 1878. To the report contained in the decision it is only necessary to add that H. H. Burk sued William Burk on a covenant of warranty against the claims of all persons, contained in a deed.

Railroads. Damages.' Negligence. Master and servant. Charge of Court. New Trial. Before Judge Fleming. Chatham Superior Court. May Term, 1879. To the report contained in the decision, it is only necessary to add the following: Mrs. Roach sued the company for the homicide of her husband. He was an engineer in the employment of defendant. On the night of January 28th, 1878, three freight trains started from Macon to Savannah, on defendant’s road.

<p>Levy and sale. Claim. Lien. Before Judge Simmons. Polk Superior Court. August Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Practice in the Superior Court. Principal and security. Amendment. New trial. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1878.</p> <p>Reported in the decision and head-notes.</p>

<p>Justice Courts. Yerdict. Before Judge Speer. Pike Superior Court. October Term, 1879.</p> <p>Beported in the decision.</p>

<p>Railroads. Roads and bridges. Before Judge Mc-Cutohen. Whitfield Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

<p>Title. Deed. Mortgage. Before Judge Wright. Randolph Superior Court. November Term, 1879.</p> <p>Reported in the decision.</p>

Evidence. Principal and security. Administrators and executors. Yerdict. Practice in the Superior Court. Practice in the Supreme Court. Before Judge Johnson. Jefferson Superior Court. November Adjourned Term, 1879.

<p>1. Two verdicts finding proofs to authorize a total divorce, with no decree thereon, as ruled when this case was here before, 62 6a., 407, do not render the parties thereto competent to enter into another contract of marriage.</p> <p>2. The proceedings of courts of record are to be ascertained from the minutes kept by the clerks thereof, signed and approved by the judge. Parol evidence is therefore inadmissible to establish that a certain decree was rendered when collaterally in question in the court of its rendition ; much more so in another and different tribunal.</p> <p>3. The act of 1868 providing that in all cases where a divorce a vinculo matrimonii has been pronounced, and by decree only one of the parties is authorized to marry again, and the other party has nevertheless married, such contracts shall be legal, can have no applicability to this case, whether constitutional or not, on account of the absence of the decree above referred to.</p> <p>4. Since 1864, to render a marriage valid in this state, it is not necessary that license should be granted, or the banns of the marriage published; if the other mode is adopted, the factmn of such marriage must be clearly established, that is to say, that act by which a man and woman unite for life, with mutual intent to observe towards society and each other those duties which result from the relation of husband and wife, coupled with cohabitation and the performance of those duties, precisely as they would be fulfilled if solemnized undér the other forms of marriage.</p> <p>5. In charging as to the burden of proof, the court should state what testimony would shift the onus rather than when it would be changed. The latter would intimate an opinion on the sufficiency of the proof, whilst the former would simply instruct as to what evidence, when submitted, would be sufficient.</p> <p>6. Where more than one plea was filed, and the verdict fails to disclose upon which it was based, the jury should be remanded to their room to fix that fact, if counsel so request or the pleas are contradictory. As the pleas in this case set up various defenses, the omission of the court to instruct upon this point justifies the grant of a new trial.</p>

<p>1. On October 14th, 1879, counsel for both parties to a motion for new trial in Pike superior court, signed the following agreement: ‘‘ We agree that the within is a correct brief of the oral evidence submitted to the court and jury on the trial of the above stated case, and consent that we use the original interrogatories on the hearing of the motion for new trial; also consent that the original indictment and warrant for assault with intent to murder against John H. Pounds, used in evidence on the trial, be used without attaching copies of the same hereto.” On October 16th the judge sig;ned a certificate in these words: ‘‘Within brief of evidence approved,” and the evidence so approved was filed the same day, The motion was overruled December 8th, at Griffin. In the record, and interspersed with the oral evidence, are what appear to be copies of interrogatories, and of the indictment and warrant:</p> <p>.Held, that such interrogatories and indictment and warrant were not authenticated as part of the evidence, and the writ of error will be di°missed.</p> <p>2. The 10th rule of the supreme court requires a brief of the oral and a copy of the written testimony to be approved and sent up. It does not contemplate the use of original papers.</p>

<p>1. A will provided first for the payment of the debts of the testator, then for the payment of certain specific bequests, then that the balance of his estate should go to his son for life, with remainder to the children of such son, if any, and if none, then to certain other relatives. It also provided that the son should not be allowed to control the property until he should become of age; and that the executors should see to his religious and secular education. The son became of age in 1854, and died in 1860, leaving a child born in 1855. On an ex pa/rte proceeding in equity in 1843, filed less than thirty days before the term, the court of chancery of the county where the executor lived, and in which he obtained letters of administration, rendered a decree, founded on the verdict of a jury, allowing him to sell certain realty in order to pay a debt and to make the distribution required by the will, and the sale took place accordingly:</p> <p>Held, that though the proceeding was irregular, the court was not without jurisdiction to render the de'cree, and not being void, it cannot be collaterally attacked. The executory devisee was not then born, and the executor represented her interest so far as it could have a representative.</p> <p>2. Prescriptive title which is good as against the executor of an estate, is also good as against the executory devisee born thereafter, and whose interest was represented by such executor.</p>

<p>Ordinary. Judgments. County Matters. Illegality. Before Judge Johnson. Johnson Superior Court. September Term, 1879.</p> <p>Reported in the decision.</p>

<p>Attachment. Partnership. Before Judge Speer. Bibb Superior Court. October Term, 1819.</p> <p>To the report contained in the decision, it is only necessary to add the following :</p> <p>Dunlap sued out an attachment against Connon, as anon-resident member of the firm of McGrath & Connon. His declaration in attachment was also against Connon alone, as a member of said firm. The account attached to the declaration was against the firm; Defendant moved to dismiss the declaration, to rule out evidence, and for a non-suit, each motion being based on the non-joinder of Mc-Grath in the suit. Each was overruled. The jury found for plaintiff. Defendant moved for a new trial. It was refused, and he excepted.</p>

<p>A bill filed by Flournoy & Epping alleged as follows: Pitts had aja. fa. against Kimbrough. Flournoy & Epping had two fi. fas. against him, one older, the other younger than Pitts’, but the younger founded on a mortgage containing a waiver of homestead. All were levied'on, certain cotton. To defeat Pitts Kimbrough had the cotton set apart as an exemption and filed a.claim with Flournoy & Epping as securities. The mortgage fi. fa. was proceeding; Kimbrough appealed to Flournoy & Epping not to sacrifice the cotton at sheriff’s sale at Lumpkin, but to take it at a fair valuation of $400.00, carry it to Columbus, where it could be sold, and if it brought more than that to give his family the benefit of it; this they agreed to do, and have made the sale accordingly. The claim of Kimbrough under the Pitts fi. fa. was dismissed without a trial, and Kimbrough refuses to interpose another claim. He and Pitts are kinsmen, and have colluded, etc.; both are insolvent. Pitts has notified them to produce the cotton, and they will be subjected to suit on their bond. Discovery was waived. Defendant’s answer denied collusion with Kimbrough, and charged that the claim itself was the result of fraudulent collusion between Kimbrough and Flournoy & Epping to delay him:</p> <p>Held, that under these facts the chancellor did not err in granting an injunction to restrain Pitts from proceeding until the final hearing.</p>

<p>Practice in the Supreme Court. Practice in the Superior Court. Contracts. Interest. Waiver. Appeal. Evidence. Charge of Court. Before Judge Hillyer. Fulton Superior Court. September Term, 1879.</p> <p>On May 2d, 1878, Howard brought two suits in the justice court 1026, D. G. M., against Chamberlin, Boynton & Co., each on open account. The first was as follows:</p> <p>“Atlanta, Ga., May 1, 1878.</p> <p>“Chamberlin, Boynton & Co. to Warren Howard, Dr.</p> <p>“To amount due for the month of March, 1878, under contract of services as clerk for 1878, at $50.00 per month...............$50.00.”</p> <p>The other account was the same, except that it was for “the month of April, 1878.” On the trial the justice rendered judgment for plaintiff in each case, and defendants entered appeals. Subsequently Howard brought eight other suits, being respectively for the months from May to December inclusive, one suit for each month. The accounts sued on were similar to the above, except the last two. The ninth suit (for November) was on the following account :</p> <p>“Atlanta, Ga., January 20,1879.</p> <p>“Chamberlin, Boynton & Co. to Warren Howard, Dr.</p> <p>“To amount due to date for the month of November, 1878, under contract of services as clerk at $50.00 for each month in 1878, $50.00.’’</p> <p>The tenth account was as follows:</p> <p>“Atlanta, Ga., February 25, 1879.</p> <p>“Chamberlin, Boynton & Co. to Warren Howard, Dr.</p> <p>“To amount due to date for services as clerk for the month of December, 1878........$50.00.”</p> <p>On each of these suits the justice rendered judgment for the plaintiff, and defendants appealed. The judgments in the suits for June and July, 1878, were for $50.00 even ; the first judgment (for March) had an interlineation of interest, which the court held to be a nullity, thus leaving it also for $50.00. The remainder of the judgments included interest.</p> <p>At the fall term, 1878, of Fulton superior court, five of these appeals (suits from March to July inclusive,) had been sent up. Plaintiff moved to dismiss them on two grounds:</p> <p>(1.) Each of them on the ground that the'amount claimed was not such as to render the case appealable.</p> <p>(2.) To dismiss the appeals in cases for June and July because the appeal bonds given did not correspond with or describe the judgments in those cases.</p> <p>The bonds described the judgments as being “in 1026th district, G. M., of Fulton county, Georgia, for $50.00, principal, and forty-five cents interest;” whereas the judgments for those months were each for $50.00 and costs. Counsel for defendants stated that the bonds were so drawn because he had understood from the magistrate that interest would be included, but plaintiff’s counsel objected to interest, and it was not included.</p> <p>The court overruled the motion to dismiss, and plaintiff excepted pendente lite.</p> <p>At the September term, 1879, of the court all the appeals had been sent up, and were called for trial. Plaintiff’s counsel moved to dismiss each of the last five (being appeals of suits from August to December inclusive,) on the ground that the amount claimed was not such as to render the cases appealable. Counsel stated in his place that plaintiff did not claim interest, nor had he ever claimed it, but had always been willing to write off interest, and that these five judgments in the justice court only included it because in taking judgment in one of these eases the defendants’ counsel claimed that interest was obliged to be inserted, and the justice raled that such position was correct, although plaintiff’s counsel objected; and that afterwards judgment by default was entered in each subsequent case, including interest, plaintiff’s counsel consenting to avoid going through a trial in each case in the justice court, each involving like questions. Plaintiff’s counsel offered to write off all interest, and disavow any claim thereto. The court held that the records showed that the amounts sued for were liquidated, and by law must bear interest, and that interest could not be waived or disclaimed. He thereupon overruled the motion.</p> <p>The court then ordered the cases to be consolidated and tried together, over objection of plaintiff.</p> <p>A set of interrogatories was sued out by plaintiff’s counsel for him, and executed in November, 1878, before the close of the year involved in the suits. The court held them improperly taken, because the fourth cross-interrogatory was not fully answered. This interrogatory and answer were as follows:</p> <p>“ Fourth cross-interrogatory — Are you not now in the employment of Mr. Akers ? Did you not make a contract with him in the month of February, 1878, to commence work with him on the 1st of March, 1878 % If you did, what was that contract ? State fully and particularly. If it was in writing, attach it or a copy of it to this answer. Have you done so ? If it was not in writing state fully its terms. Where were you during the months of March, April, May, June, July, August, September and October, 1878?. What were you doing, and what did you receive for your work, or what are you to receive if you have not been paid for the months above mentioned? If you say that you received a commission, state what your commissions for each of the named months amount to? and if you say you have not received them, why not ? State fully and particularly what your commissions amount to for March, April, May, June, July, August, September and October, 1878, whether you have collected them or not ? If you state you worked for Mr. Akers on commission, state the amount of your sales for each of the above named months? What were you to receive out of said sales? What have you received of said amounts? What are you to receive? What amount is good and collectible ? What amount is bad? State fully and particularly. What was the aggregate amount you received or will receive on account of service rendered to Mr. Akers from 1st of March to 1st of November, 1878? State fully.”</p> <p>“ To the fourth cross-interrogatory he answers : I am. In the latter part of February, after having been notified of my discharge by defendants, Mr. Akers asked me if I would like to work for him. I told him I would, and asked him what he would give me. He said he would give me thirty per cent, of all the money I collected from the sale of fruit trees sold by myself, or would give me $50.00 per month, and allow me a sum for expenses, these expenses not to exceed ten dollars per month in money, and wherever I could pay my expenses by promising fruit trees in the fall, 1 could do so, and if less than ten dollars in cash was used I was entitled to only the actual amount used. All of this was dependent entirely upon' my collections. The payment of $50.00 per month depended upon my collecting that amount from sales I had made. That agreement was reduced to writing on the 10th or 11th of February; it is not in my possession. I have given the language as near as 1 can remember it. I misplaced the contract, and don’t know where it is. I have not decided which of these ofier? I will accept, as both of them depend upon my collecting the different amounts. . I was going through the country selling fruit trees; I was in Atlanta at different periods during that time; I remember specially in May and October. I cannot give the exact amount of sales for each of these months; but I was to receive nothing on sales, but I was to receive thirty per cent, of collections. I have not received a cent for any of these months; I am to receive thirty per cent, of what I collect if I see fit to do so. It is impossible to state what amount is good or what amount is bad; I cannot tell, for it depends entirely upon collections. I have not received one cent for these months from John W. Akers on account of collections.”</p> <p>On the trial it was admitted that Howard was employed by defendants for the year 1878, at $50.00 per month, and that one of defendants went to him about the last of January or first of February, told him that they would not need his services after the first of March, and requested him to get another place; and it was shown that some time in March plaintiff went to work for J. W. Akers, that he continued with him through the year, selling fruit trees, that the contract was that he should receive 30 per cent, on what was collected from sales made by him, that he realized some $460.00 therefrom, and that he was sick for some weeks during the summer. Defendants insisted (1.) That plaintiff was not discharged, but voluntarily agreed to a rescission of the contract. On this subject the evidence was in direct conflict. (2.) That he had made nearly, if not quite, as much working for Akers as if he had remained with them. (3.) That he had been sick a portion of the time and unable to work.</p> <p>J. H. Wood was a witness for defendants. He testified that in the month of February, 1878, he had a conversation with plaintiff, in which the latter said he had gotten another place with Akers, hoped to make more, and he would not stay with defendants if they would increase his salary to $100.00 a month. On cross examination he testi* fied that plaintiff stated that he had been notified that he would have to leave after March 1st, and witness and others were regretting that he was going to leave when the declaration was made, which is set out above. Plaintiff objected to the statement that he would not stay with defendants, etc., as being made after the discharge, and therefore irrelevant. The court admitted the evidence.</p> <p>Testimony of Akers touching the amount made by plaintiff in his employment was objected to by plaintiff’s counsel, because it appeared that his information was derived from letters, memoranda, etc.; it was admitted over objections, and plaintiff excepted; but the memoranda, etc., were subsequently accounted for, and the ground not relied on by counsel for plaintiff in argument.</p> <p>Certain books were offered in evidence by defendants and objected to by plaintiff. It appeared from the evidence of Akers that after plaintiff went into his employment, the latter traveled through the country selling fruit trees for him. Plaintiff would take notes or written orders for the trees, payable on delivery in the fall. Three of the books offered Akers testified had been sent to him by plaintiff as containing these notes. The fourth was a tabulated statement of the other three, and of other like books sent by other agents. It was made by Akers, and plaintiff assisted him in the work; then compared it with the books from which it was made up, were satisfied of the correctness of it. It contained the names of purchasers of trees, and the amounts of their purchases; opposite each sale was the initial of the agent who made it; and opposite some of these was entered “pd” or “paid,” indicating payment. Plaintiff objected to the three books of notes on the ground that no execution of them was proved; and to the fourth, because of irrelevancy, and because the entries were secondary evidence — especially so as to payments made. They were admitted.</p> <p>The point being directly in controversy whether plaintiff agreed to give up his situation with defendants, or was discharged, plaintiff’s counsel offered to show by R. A. Hemp-hill that plaintiff had a situation with witness which paid him $60.00 per month, and which he gave up to accept a year’s employment with defendants. The court rejected this. The court refused to give each of the following requests of plaintiff’s counsel in charge:</p> <p>(1.) “ The onus is upon defendants to show a rescission of their contract with plaintiff.” On the contrary he charged as follows : (After stating to the jury that it was admitted that plaintiff was employed for the year 1878 by defendants, and that the employment terminated before the end of the- year by reason of something which passed between defendants and plaintiff, charged) “ that the onus was upon the plaintiff to show by a preponderance of evidence that he was discharged.”</p> <p>(2.) “ If 'plaintiff was employed by defendants for the year 1878, and before the year was finished they went to plaintiff and used to him such language as, from its natural and reasonable import, led him to believe that he was discharged,- and therefore to leave their employment, such action on the part of defendants would amount to a discharge of plaintiff whether the word ‘ discharge’ was used or not.”</p> <p>The court charged as follows: “ If plaintiff was sick during 1878, the time he was sick would be taken into consideration and deducted by you in fixing the amount due by defendants, if any, unless the evidence showed that he would not have been sick had he remained in their employment ; if this has been made to appear from the evidence, then you would not deduct anything on account of such sickness.”</p> <p>After verdict for defendants, plaintiff excepted and assigned error on each of the above rulings.</p> <p>When the case was called in the supreme court, counsel for defendants in error moved to disregard the assignments based on the exceptions pendente lite, because the rulings complained of were made at the fall term, 1878, of Fulton superior court, the exceptions pendente lite, were tendered to the judge at that term, but were not filed in the clerk’s office until April 1st, 1879, the second day of the next term. Counsel for plaintiff in error responded as follows: Exceptions pendente lite are part of record, and will be considered unless filing at first term, is essential to validity under statute; if so, no order of court can modify statute. But exceptions were allowed filed after term in Walsh vs. Colquitt, governor, 62 Ga., 384.</p> <p>The facts in regard to these exceptions appear from the record as follows: Exceptions pendente lute were tendered to the court. They recited the refusal of the court to dismiss appeals and holding interrogatories insufficient (at the fall term, 1878), set out in the first part of this report, and concluded thus: “ And now during the term at which said rulings and decisions were made, comes plaintiff and tenders this his bill of exceptions pendente lite, and prays that it may be certified and ordered of record as by law provided.”</p> <p>Upon this the judge signed the following order:</p> <p>“I certify, that the above bill of exceptions (with the qualification, etc.) tendered pendente lite is true, and contains all the evidence necessary to a clear understanding of the errors complained of, and it is ordered that the same be placed on record to wait the final termination of the case, as by statute provided. This January 10th, 1879.</p> <p>(Signed) Geo. Hillyee,</p> <p> Judge 8. O. A. 0.” </p> <p>Upon this was indorsed this entry :</p> <p>“Filed injofflcethis 1st day of April, 1879.</p> <p>(Signed) J. S. Holliday, C. S. C.”</p> <p>Nothing more appears concerning the exceptions, except that they are in the record, and are followed by the usual clerk’s certificate.</p> <p>In the record, in advance of the exceptions pendente lite, appears this order:</p> <p>“ Warren Howard, vs. Chamberlin, Boynton & Co. } Appeals. Fulton Superior Court.</p> <p>“ On motion of plaintiff’s attorney to strike from the first three judgments in the justice court an interlineation of interest, on the ground that the same was made after the judgments were rendered, it appearing that in the first judgment the interlineation was made by the justice after the entry of judgment, though later on the same day, and that the other interlineations were made at the time of entering judgment, it is ordered that the first be considered and deemed a nullity, and as if ho interlineation had been made. As to the others the motion is overruled. On motion of the plaintiff’s attorney to dismiss each of the first five appeals, it is ordered that the same be overruled and refused.</p> <p>“ Spring Term, 1879.</p> <p>(Signed) Geo. Hillyer, Judge, etc.”</p> <p>“ It appearing to the court that the order as above was taken at the last term of the court, hut omitted to be entered on the minutes by accident, it is ordered to be entered nunc pro tunc.</p> <p>“Fall Term, 1879.</p> <p>(Signed) Geo. Hillyer, Judge, etc.”</p> <p>It is to this order that the opinion refers when it speaks of the order for recording being at the third term :</p>

<p>Criminal law. Practice in the Superior Court. Practice in the Supreme Court. Before Judge Crisp. Lee Superior Court. March Term, 1879.</p> <p>Reported in the decision.</p>

<p>Evidence. Confederate States. Laws. Bonds. County Matters. Contracts. Before Judge McCutchen. Bartow Superior Court. July Term, 1879.</p> <p>In 1862 Newell was residing in Georgia, though he claimed Illinois as his home, and went to that state during the said year. When he went away from Georgia, he left some money, consisting of bills of the Central Railroad & Banking Company and the Georgia Railroad & Banking Company in the hands of one Howard, as his agent, for investment. In 1863 the • county of Bartow issued bonds in order to raise money for the support of the indigent and needy families of the soldiers of the Confederate army, who could not support themselves. It appears that there was an ordinary pauper fund in the county raised by taxation, but it became inadequate, owing to the increase of poor families resulting from the absence or death, of men in the war, and this means was adopted of providing for such families. Howard, as agent for Newell, purchased two of the bonds so issued. On these Newell brought suit. On the trial, Warren Akin, Esq., testified that he had been a member of the Confederate congress, that as such he became possessed of certain pamphlets (tendered to him) and that they contained the acts of that congress, and were genuine. Upon this showing, two of the acts were allowed to be read, dated April 16th, 1862, and September 27th, 1862, respectively authorizing the president of the Confederacy to call out for military service men between the ages of 18 and 35 years, and between 35 and 45. This ruling was excepted to.</p> <p>The jury found for plain tiff $226.47-100 principal. Defendants moved for a new trial, which was refused, and they excepted.</p> <p>For the other facts see the decision.</p>

<p>Contracts. Actions. Before Judge Clark. City Court of Atlanta. December Term, 1879.</p> <p>This cause was an action of assumpsit, begun in the city court of Atlanta, by the plaintiffs, as executors of Foster Blodgett, against John Neal, Jr., for the recovery of $750.00 for services rendered to the defendant by plaintiffs’ testator during the months of August, September and October, 1877, in securing the consent of the authorities of the Nashville, Chattanooga and St. Louis Railway Company, to the dismissal of certain criminal prosecutions pending in the circuit court of Hamilton county, Tennessee, against Wesley W. Neal.</p> <p>The declaration was afterwards amended, and it was alleged that on the 29th of September, 1877, W. W. Neal, a brother of defendant, was under indictment in the circuit court of Hamilton county, Tennessee, for the offenses of larceny and fraudulent breach of trust, committed by the said W. W. Neal, while agent of the Nashville, Chattanooga and St. Louis Railway Company, and in imminent danger of conviction for said crimes. On the day aforesaid the said W. W. Neal, having given bond for his appearance to answer said indictments, the defendant, John Neal, Jr.,' had deposited with the sureties upon the said appearance bond, to secure them from loss, the sum of $2,000 00, and having appointed Foster Blodgett his attorney in fact in this behalf, agreed with the said Foster Blodgett that if the said Blodgett would use his influence with the authorities of the said railway company to secure the dismissal of the said prosecutions against the said W. W. Neal, so much of the $2,000.00 as should be left after paying attorney’s fees and costs, should be the property of said Blodgett, in the event the prosecutions were dismissed. It was further alleged that Blodgett, in pursuance of this agreement, prevailed upon the authorities of the' railway company to consent to the dismissal of said prosecutions, and they were dismissed, and of the $2,000.00 so deposited there remained $750.00 after paying attorneys’ fees and costs, which sum of $750.00 the defendant, on November 12th, 1877, fraudulently took possession of and converted to his own use, and for which sum of $750.00 judgment was prayed.</p> <p>To the declaration as amended, the defendant demurred upon the ground that the cause of action therein set out was a contract tending to obstruct the course of public justice in the state of Tennessee, and being such a contract, was contrary to public policy, illegal and void.</p> <p>The court sustained the demurrer, and dismissed the case, and that judgment of the court is the error assigned.</p>

<p>Title. Fraud. Prescription. Statute of limitations. Principal and agent. Notice. Before Judge MoOutchen. Whitfield Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

Bond. Contracts. Evidence. Governor. Constitutional law. Auditor. Practice in the- Superior Court. New trial. Before Judge Hillyer. Fulton Superior Court. October Term, 1879. The facts material to the questions passed upon by the court are stated in the opinion.

Homestead. Deeds. Evidence. Complaint for land. Ejectment. Amendment. New trial. Before Judge Speer. Newton Superior Court. September Term, 1879.

Principal and surety. Negotiable instruments. ' Contracts. New trial. Before Judge Erwin. Gwinnett Superior Court September Term, 1879. The report in the decision, taken in connection with that when the case was here before (Camp vs. Simmons, 62d Ga., 73,) contains all the material facts.

Equity. Administrators and executors. Estates. Wills. Husband and wife. Contracts. Before Judge Crawford. Muscogee Superior Court. May Term, 1879. John R. Dawson died testate in 1859.

<p>New trial. Contract. Master and servant. Charge of Court. Before Judge Hood. Baker Superior Court. November Term, 1879.</p> <p>Reported in the opinion.</p>

Principal and surety. Bonds. Officers. Contracts. Novation. Jurisdiction. Practice in the Superior Court. Before Judge Hillyer. DeKalb Superior Court. September Term, 1879. 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 made by Walsh et al.: (1) . Because the court sustained plaintiff’s demurrer to defendants’ plea to the jurisdiction. (2) .

<p>Homestead. Equity. Jurisdiction. Parties. Husband and wife. Before Judge Speer. Campbell Superior Court. August Term, 1879.</p> <p>Reported in the decision.</p>

<p>Sheriff. Levy and sale. Before Judge Wright. Dougherty Superior Court. October Term, 1879.</p> <p>Reported in the opinion.</p>

<p>1. When a cerlm'W'i to the decision of a county judge in a criminal case is sought, it must affirmatively appear that the petition, duly sanctioned, was filed in the clerk’s office within ten days from the trial, otherwise the certiorari will be dismissed.</p> <p>2. The act of 1868 provided, in the sixth section thereof, “ that no writ of cm'tioran'i shall be granted unless the accused shall first have filed his affidavit setting forth that he is informed and believes that he has not had a fair trial, and that he has been wrongly and illegally . convicted.” The act of 1872 provided ‘ that no application for eertioi'ari, however, in a criminal case shall be entertained unless the party applying will make the affidavit set down in section 6 of the act of 1868, as follows: “ That no writ,’’ etc., in the same language as that above quoted, except that the words “is informed and believes that he” were omitted, leaving the affidavit without such qualifying clause:</p> <p>Held, that the act of 1872 is the latest expression of the legislative will, and since its passage an affidavit on information and belief is not sufficient.</p>

Claim. Practice in the Superior Court. Charge of Court. Yerdict. Before Judge Underwood. Floyd Superior Court. September Adjourned Term, 1879. Printup Brothers & Co. sued out an attachment against James W. Bones, a member of the firm of J. & S. Bones & Co., on the ground that he was about to remove without the limits of the county. The attachment was levied on certain property, which was claimed by Mrs. Maria Bones.

Equity. Rents. Costs. Before Judge Crisp. Lee Superior Court. November Adjourned Term, 1878. The report of this case in 59 Ga., 862, with the following opinion, is sufficient to a clear understanding of the questions decided.

<p>Landlord and tenant. Ouster. Before Judge Fleming. Chatham Superior Court. May Term, L879.</p> <p>To the report contained in the decision it is only necessary to add the following: Way, the tenant, claimed that he had been ousted, because during his absence intrusions had been made upon him ; that his rooms had been entered and used on several occasions by the landlord’s family or guests, and without his knowledge and consent. There seems to be no doubt that intrusions and temporary use were made, but whether the landlord knew of them or assented to them the evidence was conflicting.</p>

Dower. Title. Judgments. Notice. Administrators and executors. Charge of Court. Record. Practice in the Superior Court. Before Judge Johnson. Johnson Superior Court. September Term, 1879. M. C. Williamson died in 1863 or 1864, seized and possessed of a tract of land in Johnson county.

Ejectment. New trial. Before Judge Pate. Dodge Superior Court. November Term, 1878-. This case was tried before Judge Grice, but the motion for new trial was overruled by Judge Pate. It is sufficiently reported in the opinion.

<p>Where a father advanced to his son a ' ‘ wool carder ” of the value of one thousand dollars, and afterwards took possession of it and used it, he thereby became the debtor of his son, and the statute of limitations would run as well against such claim as against any other debt. If the claim for the use of the property was barred before the death of the father, it would not be a proper deduction from the advancement in the settlement of his estate.</p>

Practice in the Superior Court. Judgment. Attachment. Service. Before Judge Erwin. Hall Superior Court. September Term, 1879. On August 21st, 1878, Buice sued out an attachment against the Lowman Silver Mining Company, a foreign corporation, for $192.50, returnable to Hall superior court. On tbe same day this attachment was levied on the tract of land now in dispute. On August 22d, it was levied on certain personal property.

<p>1. In 1873 tlie Freedman’s Saving & Trust Company had authority under tlieir amended charter to loan money secured by title to real estate. A deed made for such purpose conveyed title, and therefore a subsequent purchaser under execution against the grantor simply acquired the right remaining in such grantor, to-wil: to redeem by payment of the debt.</p> <p>2. Evidence to show fraud in the making or procurement of the deeds constituting the chain of title from the F. S. & T. Co. to the defendant, was inadmissible unless notice thereof was shown to the latter.</p> <p>3. A quit-claim deed from the original grantor to tlie purchasers from the F. S. & T. Co., executed long after he had parted with his title, and an obligation back to him going to show that he had an interest in the land, were inadmissible as based upon no consideration and as totally irrelevant.</p> <p>4. A legal title and actual ownership in such grantor after he had conveyed by deed to the F. S. & T. Co. cannot be shown by parol evidence.</p> <p>5. The transfer by the grantor of the bond to reconvey from the F. S. & T. Co. to another, no matter with what object, could not affect the title of the party holding under the deed until the terms of the bond were complied with.</p> <p>6. The legal effect of the deed and bond to reconvey was for the court, and parol proof tending to show that they constituted a mortgage was properly excluded, the instruments being unambiguous, and no charge of fraud, accident or mistake being made.</p> <p>7. A ground for new trial certified by the presiding judge not to be true, cannot be considered.</p> <p>8. After the grantor parted with the title, no subsequent act of his with other parties, whether fraudulent or not, could affect such title, and therefore all evidence to show such fraud was properly excluded.</p> <p>9. It was not error for the court, after the question of law upon which the case must turn had been fully argued and the evidence closed, to announce to counsel that the principles involved had been settled in his mind, and then to read in the presence of the jury what he should charge. If counsel had new authorities to read, or additional reasons to submit, it would be the duty of the court to hear him.</p> <p>10. The instructions of the court, and the refusals to charge, were in accordance with the principles herein announced.</p> <p>11. The verdict was in obedience to law, in conformity with the evidence, in harmony with the equity, and in strict accord with justice.</p> <p>12. The principles of law governing a case, separately considered, are not changed, nor their power lessened, by massing the objections thereto together, and in their totality presenting them to the court.</p>

<p>Certiorwi. Interrogatories. Evidence. Presumption. Practice in the Superior Court. Before Judge Speer. Rockdale Superior Court. August Adjourned Term, 1879.</p> <p>To the report contained in the decision it is only necessary to add that defendant in eertiora/ri moved to dismiss the case because the certificate of the county judge did not show that all costs had been paid ; because the original interrogatories and answers sued out in the county court for Scott were attached to the petition for certiorari; and because a new trial had been granted in said cause before. The motion was overruled. The certificate of the county judge is that petitioner “ has paid the costs in the above .case, as follows (naming items for trial, issuing commissions and subpoenas).</p>

<p>Injunction. Tax. Constitutional law. Railroads. Laws. Stock. Before Judge Simmons. Bibb County. At Chambers. Deceiuber 22nd, 1879.</p> <p>Reported in the decision.</p>