Volume 65 — Georgia Reports

<p>1. Where action was brought for breach of covenant, and a recovery ' is sought upon an alleged agreement not found therein, the plaintiffs must allege that such was the real contract, that the omission was caused by fraud, accident or mistake, and that one or both parties intended its insertion.</p> <p>2. When a business is sold, a stipulation is necessary to prevent the seller from carrying on the same occupation in that town; but the mere purchase of the “ good will ” will not compel such result.</p>

Levy and sale. Sheriff. Title. Contracts. Estate.' Debtor and creditor. Before Judge BUCHANAN. Troup Superior Court. November Term, 1879. The following, taken in connection with the decision, sufficiently reports this case : Jesse McClendon, deceased, was the common debtor.

<p>Practice in the Supreme Court. Jurisdiction. Practice in the Superior Court. New trial. Before Judge SPEER. Monroe Superior Court. August Term, 1879.</p> <p>Reported in the decision.</p>

<p>Contracts. Non est factum. Lost papers. Evidence. Before E. M. Butt, Esq., Judge pro hac vice. SchleySuperior Court. October Term, 1878.</p> <p>Reported in the opinion.</p>

<p>1. The evidence being sufficient to sustain the verdict under the law as ruled by this court when this case was here before, 60 Ga., 643, the refusal of the court to grant a new trial will not be controlled.</p> <p>2. Jurors cannot impeach their verdict; much less will it be set aside on the affidavit of the party for whose use the case is proceeding, that some of the jurors told him that it was caused by mistake.</p>

<p>Equity. Judgment. Practice in the Superior Court-Practice in the Supreme Court. Before Judge CRAWFORD.. Taylor Superior Court. April Term, 1879.</p> <p>Reported in the decision.</p>

<p>Criminal law. Practice in the Superior Court. Confessions. Charge of Court. New trial. Before Judge SlMMuNS. Crawford Superior Court. March Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Where a son, by his guardian, filed a bill praying to have the will of his deceased father construed so far as his rights were concerned, that the administrator be instructed as to the management of the estate, and be required to pay over to complainant, until the final ' hearing, out of the income, what was necessary for the temporary support and education of the son, an order requiring the payment of a certain amount for those purposes was not a final judgment which could be reviewed on writ of error; and a bill of exceptions predicated thereon will be dismissed. '</p>

<p>Injunction. Nuisance. Before Judge BUCHANAN. Heard County. At Chambers. March 2nd, 1880.1</p> <p>Reported in the opinion.</p>

Illegality. Judgments. Practice in the Superior Court. 'Contracts. Before Judge SIMMONS. Bibb Superior Court. April Term, 1879.

<p>Statute of limitations. Contracts. Before Judge SPEER-Putnam Superior Court. September Adjourned Term,, 1879.</p> <p>Reported in the decision.</p>

<p>Equity. Demurrer. Homestead. Deeds. Before Judge Buchanan. Heard Superior Court. September Term, 1879.</p> <p>Reported in the opinion.</p>

Railroads. Damages. Parent and child. Laws. Before Judge HlLLYER. Fulton Superior Court. September Term, 1879. Venable, as next friend of certain minor orphan children, brought case against the Atlanta and West Point Railroad for the homicide of their mother. Defendant moved to dismiss the case because the children had no-right of action. The motion was overruled and defendant excepted.

Practice in the Superior Court. Practice in the Supreme •Court. Mandamus. New trial. Before the Supreme ■Court. February Term, 1880. Cox was tried for murder and convicted at the March term, 1879, °f Fulton superior court. He moved for a new trial on various grounds, among others because the -court refused to continue on account of the physical condition of defendant and popular excitement.

<p>1. A power of sale can be exercised only in the mode, and subject to the conditions prescribed by the instrument creating the power. If the sale be only authorized on the written consent of the cestui gue trust, that consent must be obtained before the exercise of the ' power, and the court will not enjoin the dispossession of the purchaser from the trustee who bought without such consent, in order to decree a specific performance of the contract.</p> <p>72. An injunction will not be granted to enable the court to decree payment to the purchaser for improvements placed upon the property by him, where there is no allegation of the insolvency of the trust estate and the improvements were on real estate, and where there was no prayer except for specific performance.</p>

New trial. Sheriff. Levy and sale. Tax. Before-Judge HlLLYER. Fulton Superior Court. September Term, 1879. In October, 1872, Plant obtained a judgment against Thomas P. Fleming et al. In 1878 (being then controlled by deGraffenreid as transferee) the ji. fa. was levied on a certain lot in the city of Atlanta, which was claimed by Caroline Eichberg. Her chain of title was as follows: A deed from one Andrews to Fleming, dated September 11th, 1873.

<p>Contracts. Laws. Penitentiary. Injunction. Before Judge Lester. Cobb County. At Chambers. November 27th, 1879.</p> <p>Reported in the decision.</p>

Partnership. Title. Deeds. Mortgage. Before Judge UNDERWOOD. Floyd Superior Court. September Term, .1879. This case arose upon a money rule against the sheriff for the distribution of the proceeds of certain property sold 'under execution. The facts were, in brief, as follows: On May 22d, 1869, lot 118, in the Coosa division of the -city of Rome, was conveyed to John Bones, John Brown, James W. Bones and John S. Bones, individually.

Recoupment. Contracts. Damages. Attachment. Before Judge Lawson. Putnam Superior Court. September Term, 1879. Adams brought suit against Gerding, surviving partner, -on a promissory note given for the purchase of three ■mules. Defendant pleaded, among other things, that the ■plaintiff had caused an attachment to issue and be levied ■on one of the mules, which was sold thereunder, and that the attachment was void because not founded onanyaffi■davit.

Sheriff. Officers. Before Judge Wrigi-it. Decatur-Superior Court. November Term, 1879. To the report contained in the decision it is only necessary to add that Cox, sheriff, sued the county commissioners in a justice court on an open account for services-, of himself and deputy in attending upon court and summoning talesmen. The justice gave judgment for the plaintiff, and the. case was appealed. It was submitted to the court without a jury.

Fraud. Administrators and executors. Trusts. Equity. Verdict. New trial. Before Judge Lawson. Greene Superior Court. September Adjourned Term, 1879.

<p>A plaintiff in fi.fa. cannot tack the time land was held under a levy which was adjudged illegal to a subsequent levy, in order to prevent the four years’ bar of the statute of limitations in favor of a a purchaser without notice, even though such purchaser had litigated as a claimant under both levies. The Code omits the word “ peaceable,” qualifying the possession, found in the acts of 1822, and 1851— 2, and it behooves plaintiffs in fi.fa. to subject land to the payment of their executions by legal levies before the bar of the statute attaches.</p>

<p>1. Where, in a suit on a note signed by husband and wife, the uncontradicted evidence shows that the wife received no benefit, but was assuming the debt of her husband, a verdict against her is contrary to law. But if there is no assignment of error based on the verdict, this court will not grant a new trial on that ground.</p> <p>2. Where husband and wife were both sued, and the wife appeared and pleaded, a plea filed by her husband for her was properly stricken, it not appearing that she resided out of the. county.</p>

<p>Criminal law. Continuance. Pleadings. Constitutional law. Jurors. Evidence.- Res gestes. New trial. Before Judge HlLLYER. Clayton Superior Court. September Term, 1879.</p> <p>On September 18th, 1878, Mrs. Farmer was murdered, and an assault committed on her daughter, Miss Farmer, which came near resulting in another murder. Neighbors discovered the Farmer house to be on fire, and on going thither and extinguishing the flames, Mrs. Farmer was found murdered. On search being made, Miss Farmer was found about a hundred yards distant from the house badly injured. She had been struck on the head with some hard instrument, and seemed partially, if not entirely,. ■unconscious. Several witnesses testified that they did not believe her consciqus. She was taken up and carried to the house. When found she was groaning. She was asked who hurt her, and said nobody. On the way to the house she several times ejaculated, “ Oh, my poor head !” and “ Oh, Julia!” It was some days later before full consciousness returned. Julia Johnson was indicted both for the murder of Mrs. Farmer and the assault with intent to ■murder Miss Farmer. On the trial of the murder case .she was acquitted. When the other case was called, defendant moved for a continuance. The grounds of the motion were that she had relied entirely on R. S. Jefferies, Esq., who had represented her in the murder trial, to represent her also in this, and that he had only a short time previously notified her that he could not do so, thus leaving her unprepared with her defense ; also, that certain material witnesses were absent. As to what those ■witnesses would testify, the state made a counter-showing by proving what they testified on the murder trial. The court refused the continuance.</p> <p>Defendant filed a plea of former acquittal, based on the verdict in the murder trial, claiming that the circumstances pointing to her- as the perpetrator (nearness to ‘the scene, possession of goods alleged to have been stolen •from the house, etc.), applied alike to both cases. The •court struck the plea, on motion of the state’s counsel.</p> <p>In making up the jury, the defendant’s counsel proposed to ask the jurors questions other than those provided by the statute. These questions pertained to their presence .at the coroner’s inquest over Mrs. Farmer, or on the grand jury which found the indictment for murder, or at the trial thereof. Counsel stated that they had just been appointed to represent the defendant, and had no other means of testing the competency of the jurors. They, however, disclaimed any known ability to disprove the answers of the jurors to questions put to them on their 3voir dire. The court refused to allow the questions.</p> <p>The court allowed the expressions of Miss Farmer at. the time when she was found to be proved.</p> <p>The entire evidence is not necessary to be set out. The-chief point of contest in the case was the identity of the defendant as the criminal. On this point Miss Farmer-testified as follows:</p> <p>Witness had come to the house and was in the front porch and her mother in the front door, when defendant came and said she wanted to get some cherry bark, and defendant and witness went together to the tree on the bluff to get the bark—defendant carrying the chop axe— chopped off the bark, and they had just started back to the house, witness walking in front, when she was stricken, and remembered nothing more occurring then nor for a good while afterwards. She knows no one else was present but defendant and herself. She had seen defendant twice before, once at the well sometime before, and again a day or two previous to the assault when defendant came to the house to get butter and eggs. On all these occasions defendant had worn a Scotch homespun dress. She-had never heard defendant called by name; had been told she lived on Calhoun’s place. Witness usually wore-spectacles—did not that day. Negro women looked as. much alike to her as a gang of black-birds. She had failed to identify defendant on the murder trial when-asked to point her out among three or four negro women,, defendant being then dressed differently from what she had been on the previous occasions. She didn’t want to. make the same mistake again; her brother and others had told her what kind of clothing was now worn by Julia. She had seen but one negro woman inside the bar on coming in that morning; knew defendant was to be tried, and'knew in reason that was defendant. Had kept her eyes on her so as to know her. Defendant had changed hats. Witness’ memory had never been as good since she-was wounded. She thought would never be again. She. had a dizzy feeling in her head all the time. Learned on regaining her consciousness' that defendant had been arrested charged with the murder of her mother and the injuries to herself. She positively remembered that defendant was the person with her and who struck her. She had lived at the same place fifty years. Did not remember when the railroad was built, nor when the war began, nor when Atlanta was captured, nor when the battle at Jonesboro was fought, nor when the negroes were freed. Is sixty years old.</p> <p>The court was requested to give the following charge: “Before the jury can convict the prisoner on the testimony of Elizabeth Farmer, they must believe to the exclusion of a reasonable doubt that she positively remembers that, as a fact within her own knowledge, the prisoner then known to her as the identical person now on trial, committed the assault on her charged in the indictment.” This request the court gave, but further charged the jury in connection therewith as follows : “ But if you are satisfied that she had in her mind and memory a knowledge of the facts testified by her, and that she truly stated those facts, and recognized the prisoner as the perpetrator, then you would be authorized to believe such facts against the prisoner. The inquiry as to each person testifying on the trial is, do you believe the witness? If you do not, you ought not to base a verdict on such evidence; but if you do believe the witness, you would have no right arbitrarily to set aside the testimony of such witness.”</p> <p>The jury found defendant guilty. She moved for a new trial, assigning error in each of the rulings set out above. The motion was overruled, and defendant excepted.</p>

<p>Contracts. Practice in the Superior Court. Evidence. Witness. Before Judge Buchanan. Spalding Superior Court. August Term, 1879.</p> <p>The facts are reported in the decision.</p>

<p>Homestead. Levy and sale. Before Judge PATE. Twiggs Superior Court. September Term, 1879.</p> <p>Reported in the decision.</p>

<p>The power to relieve against a mistake in equity must be exercised with caution, and to justify it the evidence must be clear, unequivocal, and decisive as to the mistake. It must arise from ignorance, surprise, imposition or misplaced confidence, and be unmixed with negligence. The present case does not present such a mistake as to require equitable relief.</p>

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

Equity. Practice in the Superior Court. Verdict. Judgment. Evidence. New trial. Before Judge UNDERWOOD. Coweta 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: (1) .

Mortgage. Jurisdiction. Lien. Amendment. Before Judge CLARK. City Court of Atlanta. December Term, 1879- William Rich was security on a recognizance for the appearance of one George McCullough to answer a criminal charge. The recognizance was duly forfeited.

<p>Where a creditor by mortgage files his bill alleging that another senior creditor of the common debtor held but an equitable mortgage, though in the form of an absolute deed, that by reason of payments-of usury made to him, his debt was nearly settled, that he was about to sell to an innocent purchaser, etc., and praying an accounting and the writ of injunction, the discretion of the chancellor exercised in granting the injunction until the hearing will not be controlled, the evidence submitted by the respective parties being conflicting.</p>

<p>Practice in the Supreme Court.' Practice in the Superior-Court. Trover. Judgment. Before Judge Snead. Richmond.Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

Railroads. Damages. Negligence. Charge of Court. Before Marshall J. Clarke, Esq., Judge pro hac vice. Eulton Superior Court. September Term, 1879. Wyly sued the railroad for damages done to his dray and mules by a train at a street-crossing in the city of Atlanta.

<p>A laborer’s lien as against real estate must be foreclosed as provided by §1980 of the Code, and in declaring for such a debt, the pleadings, verdict, judgment and execution must set forth the lien.</p>

Amendment. Mortgage. Contracts. Evidence. Promissory notes. Before Judge SlMMONS. Crawford Superior Court. March Term, 1879. To the report contained in the decision it is only necessary to add that the note and written instrument which formed the basis of this suit were as follows: -“$30.00. Fort Valley, April nth, 1877. “On November 1st, after date, I promise to pay Cubbedge, Hazleihurst & Co., or order, thirty dollars, at Fort Valley, Ga. Value received.

Practice in the Superior Court. New trial. Before Judge Simmons. Bibb Superior Court. March Term, 1879. To the x-eport in the decision it is only necessary to add* that the order was taken October 19th, 1878, allowing-defendant’s attorneys until December 1st to present the-motion for approval. It was dismissed at the March, term, 1879, being still unapproved.

<p>1. When a fertilizer known as “ Stonewall No. 1,” was imported in casks, legally analyzed and inspected, and then taken from the original packages, manipulated with land plaster and other ingredients, then sacked and sold without further analysis or inspection as “ Stonewall No. 2,” it falls within the prohibitory law of 1874.</p> <p>2. A note given for such fertilizer is void even in the hands of a bona fide purchaser because based upon an illegal consideration.</p>

<p>i . Where in a proceeding to reform a deed at the instance of a daughter against the vendor and the administrator of her deceased husband, it appeared that the father of complainant paid the purchase money and the deed was made to the son-in-law, and the question was whether or not it should have been made to him as trustee for his wife, the death of the son-in-law did not prevent the father, who-paid the money, from testifying as to instructions given by him to the deceased in regard to the manner of taking the title, while the latter was acting as his agent for that purpose.</p> <p>2. The verdict is not contrary to evidence.</p>

<p>1. The town of Forsyth issued $30,000.00 in bonds, bearing two per cent, interest. It entered into a contract with P. & Son, brokers, to give them the use of bonds of the nominal value of $7,500.00, provided they would keep $7,500.00 more at paras a circulating medium in the town and redeem them when presented; when the town by taxation should redeem $7,500,00, the other $7,500.00 were to be delivered up to be canceled. P. & Son became bankrupts, having on ■hand $4,900.00 of the bonds. The town claimed that these should be delivered up for cancellation; the assignees claimed them as assets :</p> <p>Held, that the contract created a trust in the nature of a bailment, and when it became impossible for the bankrupts to comply with their contract, the town was entitled to recover the bonds.</p> <p>2. It is immaterial that the bonds in the hands of the bankrupts were not the identical ones delivered to them by the town. The contract, from its nature contemplated a use of the entire issue and a return in kind.</p> <p>3. If the brokers knew that more than the exact amount agreed upon had been issued, and nevertheless received their part and went on with the contract, they could not afterwards complain.</p>

<p>Witness. Evidence. Practice in the Superior Court. Charge of Court. Collaterals. New trial. Before Judge Buchanan. Spalding Superior Court. August Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Evidence. Practice in the Superior Court. Charge of Court. New trial. Before Judge UNDERWOOD. Floyd Superior Court. September Term, 1879.</p> <p>John Rush sued Landers, administrator of Thompson,, on three notes and an account, aggregating $706.01. Defendant pleaded tender, payment, and the scaling ordinance of 1865. Both parties having died, Rush, administrator, was made the party plaintiff, and Ross, administrator de bonis non, the defendant. On the trial, Mrs. Wimpee, who was formerly the wife of Thompson, deceased, testified that she paid one of the notes sued on for her husband, he being absent in the army. • After the evidence on both sides was closed, court adjourned until the next day. Counsel for plaintiff, when court again met, offered to read certain answers of Mrs. Wimpee to a set of interrogatories previously taken out for her, in order to contradict her evidence from the stand. This the court refused to allow.</p> <p>The jury found for plaintiff $51.46 principal, and $67.14 interest. Plaintiff thereupon moved for a new trial, on the following, among other grounds:</p> <p>(1) . Because the verdict is contrary to law and the evidence.</p> <p>(2) . Because Mrs. Wimpee was allowed to testify, Rush, the payee of the note concerning the payment of which she testified, being dead. [It does not appear that her testimony was objected to at the time when it was given.];</p> <p>(3) . Because the court refused to allow the interrogatories of Mrs. Wimpee to be read.</p> <p>(4) . Because the court charged that the ordinance of 1865 (reading the ordinance) was intended to authorize the jury to settle the indebtedness of parties arising upon contracts made at any time from the first day of June, 1861, to the first day of June, 1865, upon principles of equity, and that they might consider the value of Confederate money at any time, without explaining to the jury for what purposes they might consider the value of Confederate money at any time' other than that named in the contracts sued upon.</p> <p>The motion was overruled and plaintiff excepted.</p>

Criminal law. Charge of Court. Evidence. Before Judge Hood. Randolph Superior Court. November Term, 1879. Jones was indicted for the murder of Hamp Jones, his step-son, a child about six years of age, and on the trial was found guilty. He moved for a new trial on the following, among other grounds: (i.) Because the court charged that confessions must be received with great caution, when there was no evidence of any confessions.

<p>Criminal la.w. Confessions. Evidence. New trial. Before Judge CRISP. Macon Superior Court. December Term, 1879.</p> <p>This case is reported in the opinion.</p>

<p>Criminallaw. License. Before Judge LESTER. Lump-.kin Superior Court. September Term, 1879.</p> <p>Reported in the decision.</p>

<p>3. Even if a marriage between persons of color in December, 1865, was illegal, which is by no means apparent, yet, if they were living together as man and wife at the date of the act of 1866, the marriage relation was thereby established, and bigamy could be predicated thereon.</p> <p>a. An indictment for bigamy need not state that the h'usband and wife are colored persons.</p>

<p>1. Contracts between railroad and telegraph companies, vesting in the latter the exclusive right to use or occupy the right of way of the-former, for the erection of telegraph poles and other purposes in connection with their business of transmitting messages, etc., by telegraph, aré void as in general restraint of trade, and tending to-create monopolies, thus being against the public policy.</p> <p>2. The railroad companies themselves are in possession of their rights-of way by the exercise of the right of eminent domain, granted to-them by the state for certain specified uses, and it was never contemplated that property thus condemned to the public use could be conveyed to another company for its exclusive interests and in antagonism to the public interest.</p> <p>3. There was no power vested in the governor or superintendent of the Western and Atlantic Railroad, whilst conducted under state-control, to convey any right of way along its line to'any company by which such exclusive rights as are here claimed would pass.. This result could only be accomplished by legislative act.</p>

Levy and sale. Evidence. Sheriff. Title. County matters. Before Judge SlMMONS. Polk Superior Court-August Term, 1879. Longworthy brought ejectment against FeatherstonThe jury found for defendant, and plaintiff excepted-For the other facts see the decision.

Trust. Deed. Charge of Court. Vendor and purchaser. Husband and wife. Compromise and settlement. Evidence. New trial. Practice in the Supreme Court. Before Judge Law.^ON. Monroe Superior Court. August Term, 1879. This case was called at the heel of the docket of the entire term, under the act of 1877.

<p>Homestead. Contracts. Debtor and creditor. Before Judge Buchanan. Carroll Superior Court. October Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Witness. New trial. Before Judge Erwin. Gwinnett Superior Court. September Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Questions not made in the court below will not be considered in the supreme court.</p>

<p>1. A purchase by an executor at his own sale is not void, and although it may be set aside by any parties injuriously affected thereby, yet until that is done the legal title remains in the purchaser.</p> <p>2. Where land was so purchased by an executor, his title being only voidable, the property was subject to an execution based on a judgment rendered against him whilst he held the title.</p> <p>3. The jury having found contrary to the charge, a new trial should have been granted.</p>

Decree. Interest. Before Judge Snead. Richmond .'Superior Court. October Term, 1879. The sole question considered in this case, was whether a certain amount decreed to be due, and which, with other claims, was to be paid out o.f an estate, bore interest or not.

<p>1. Alimony is granted in cases pending for a divorce, and in suits where there is a voluntary separation between the parties, or where the wife, against her will, is abandoned by the husband. In these latter cases, where the husband fails to make provision for the support of the wife and minor children, equity may compel him thereto by decree.</p> <p>2. That equity will, by injunction, prevent the husband from alienating his property to defeat alimony, being well established, if others cooperate with him to perpetrate such wrong, the same remedy is proper as against them.</p>

Equity. Jurisdiction. Practice in the Superior Court. Before Judge CRAWFORD. Muscogee Superior Court.. November Term, 1879. Mrs. Watson filed her bill, alleging, in brief, as set out. in the first head-note and the decision. Moses pleaded to-the jurisdiction, alleging that he was a resident of Fulton county, while the bill was filed in Muscogee. The plea was overruled.

<p>1. Upon the trial of a criminal case, that, certain witnesses heard a ' person other than the defendant say that he 'bad committed offense, is inadmissible.</p> <p>2. Even though the magistrate had been allowed to testify as to the-statement of the defendant at the committing trial, it could not have changed the result.</p>

Sheriff. Levy and sale. Evidence. Debtor and creditor. Fraud. Claim. Title. Practice in the Superior Court. Before Judge Lawson. Greene Superior Court. September Term, 1879..

Administrators and executors. Promissory notes. Contracts. Pleadings. Before Judge CRISP. Crawford Superior Court. September Term, 1879. To the report contained in the decision, it is only necessary to add that, in support of the motion to dismiss, counsel for defendant in error offered to read a certificate made by the clerk some time after the date of his certificate to the record, stating the cause of the delay in transmitting the papers.

Evidence. Contracts.' Custom. Verdict. Before Judge SIMMONS. Bibb Superior Court. April Term, 1879- Branch, Sons & Co. sued Palmer.

<p>Practice in the Superior Court. Motion. County Matters. Pleadings. Before Judge Wright. Randolph .'Superior Court. November Term, 1879.</p> <p>Reported in the opinion.</p>

Ejectment. Estoppel. Before Judge SPEER. Campbell Superior Court. August Term, 1879. Collins brought complaint for land against Nix. The tract consisted of parts of three land lots in Campbell county, viz: Half of land lot 78, half of lot 46, and one acre of lot 19.

Principal and surety. Promissory notes Presumptions. Administrators and executors. Interest and usury. Pleadings. Charge of Court. Before Judge Fleming. ■ Chat-ham Superior Court. May Term, 1879. John N. Lewis, as executor of Spivey, sued Alfred Haywood and himself, as administrators of Joseph M. Haywood, deceased, and Alfred Haywood, as indorser, on three promissory notes made by Joseph M. and indorsed by Alfred.

<p>Whilst it is well settled that all previous negotiations concerning a contract, when the same is agreed upon and concluded, are merged in the written instrument, and that parol proof is inadmissible to add to, vary or take from, the writing, yet when an action was brought alleging that there was a contract between the plaintiff and the defendant which the paper should have contained, but did not, and praying that it might be reformed so as to express the real agreement, or if it should be made to appear that none was ever mutually entered into, that then the defendant should be decreed to refund the money which the plaintiff had paid under a mistake as to the existence of a subsisting contract, parol and written testimony covering.the negotiations antecedent to the writing, was admissible to show what the real agreement was, or that there never was any agreement upon which the minds of the parties met.</p>

<p>An ordinance of a city assessing “ on all gross sales of cotton on commission, by warehousemen, factors, etc., one-tenth of one per cent.,” was in conflict with the act of 1873, which provided that municipal corporations of this state shall not levy or assess a tax on cotton, or the sales thereofand injunction was properly granted to restrain the enforcement thereof.</p>

<p>The evidence being conflicting, and no error of law complained of, this court will not interfere with the discretion of the court below in refusing a• new trial.</p>

<p>Tort. Pleadings. Evidence. Criminal law. Before Judge McCutchen. Whitfield Superior Court. April Term, 1879.</p> <p>Reported in the decision.</p>

<p>i. A case was tried at the March term, 1879, of Washington superior court. At the same term defendant made a motion for a new trial, which was filed and served. A brief of evidence was also filed, subject to the revision and approval of the court. Subsequently, plaintiffs’ counsel took it into his possession for the purpose of examining the same, but was not then asked to agree to it, and never promised to do so. Court was adjourned until the second Monday in June, but the adjourned term was not held on account of the sickness of the judge. At the next regular term the brief was submitted for the revision and approval of the court, still not agreed upon by counsel. The court indorsed on the brief that it had for the first time been submitted to him, and that six months having elapsed, he was unable to certify whether it was correct or not, though he recognized the correctness of portions of it. He dismissed the motion for new trial because no brief of evidence had been filed under the approval and revision of the court, as required by law.</p> <p>-Held, that the indorsement of the judge did not amount to an approval of the brief of evidence.</p> <p>There was no error in dismissing the motion for new trial, the inability of the judge to approve the brief of evidence resulting from the laches of the movant in not presenting it sooner for approval.</p>

<p>Trover. Verdict. Constitutional law. Supersedeas. Practice in the Superior Court. Habeas corpus. Before Judge SNEAD. Richmond Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

<p>Scire facias. Statute of limitations. Judgments. Plead ings. Before Judge Fleming. Bullock Superior Court. October Term, 1879.</p> <p>Report unnecessary.</p>

Verdict. Charge of Court. Evidence. Before Judge Clark. City Court of Atlanta. June 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: (1) . Because the verdict was contrary to law and evidence. (2) . Because the court allowed the answers of Culber.son to be read, as set out in the fourth head-note.

<p>Practice in the Superior Court. Equity. Decree. Motion. Waiver. Judgments. Before Judge JOHNSON. Washington Superior Court. September Term, 1879.</p> <p>In this case the recollection of the counsel and that of the court seems to differ somewhat, and the statements of the bill of exceptions are materially qualified by the judge’s note appended thereto. As thus qualified, the facts appear to be as follows: Coston filed his bill against Dudley, executor, and Coston, in Washington superior court. At the March term, 1879, an order was passed which recited that no answer had been filed and provided that if no sufficient excuse should be rendered for the ■neglect of defendants at the next term of the court, the facts charged in the bill should be taken as confessed =0 ■far as the complainant (or his solicitor in his absence, would swear that the same were true, or according to his ■information and belief must have been admitted to be true by the defendants in an honest answer. At the .September term, 1879, the case was called. Dudley was in court, and stated that he did not propose to litigate the case, and cared nothing for it. From subsequent .statements of counsel, it appears that one of defendants’ counsel (Mr. Langmade) was also present, and asked counsel for complainant to have the case continued, which the latter refused. Counsel for complainant informed the chancellor that the bill had been taken as confessed at the previous term of court, and was thereupon allowed to take a verdict and decree. Subsequently defendants moved to set aside the decree, among other reasons, because no affidavit had been made as a foundation for taking the bill as confessed. The motion was argued without objection to it as the proper remedy, and was granted. Complainant excepted.</p>

<p>Where the justice of a district in which the defendant resided was disqualified, and suit was brought and the case tried upon its merits, without objection, in another district, the presiding justice of which had jurisdiction of the subject matter, the defendant thereby waived objection to the jurisdiction of his person, and the judgment for the plaintiff was good as against him.</p>

<p>Sheriffs. Levy and sale. Practice in the Superior-Courts. Before Judge Wright. Decatur Superior Court. November Term, 1879.</p> <p>Reported in the decision.</p>

Justice Courts. , Constitutional law. Before Judge MERSHON. Laurens Superior Court. October Term, 1879. Corputt began two actions on account in the justice court 342d district, G. M., of Laurens county, before David P. Robinson, a commissioned notary public of that district, against Tarpley. The actions were brought to the fourth Tuesday in July, 1879, and on that day judgments were rendered against defendant.

<p>1. Where the answer to a certiorari fails to reply specifically to the allegations in the petition, to entitle the excepting party to a fuller response, he must specify in writing the defects and give notice to his opponent.</p> <p>2. A justice of the peace must be one of the persons presiding at a constable’s election, if there is one in commission to be had who is not a candidate. W5¿ere such officer acted for but a portion of the day, the election was rendered illegal.</p> <p>3. Whenever there is a failure to elect from any cause, either that the election is illegal or there is no candidate, or if the election be legal and there is a candidate, if he fails to qualify and give bond, then, in legal contemplation, there is a vacancy, and it is the duty of the magistrates to appoint. The county commissioners have no authority to order a new election.</p>

Railroads. Negligence. Presumptions. Jurors. Certiorari. Before Judge McCUTCHEN. Catoosa Superior Court. August Term, 1879. Steadly sued the Western & Atlantic railroad for twenty dollars damages for killing his cow.

Interest and usury. Contracts. Promissory notes. Before Judge McCUTCHEN. Whitfield Superior Court. October Term, 1879. Lanier sued Cox et al. in a justice court on two promissory notes, each dated October the 18th, 1876, due six months after date to one Treadwell or bearer, aggregating .$172.00, with interest specified at twelve per cent., made by two of defendants, and indorsed by another (Tread-well). The defendants pleaded the general issue and usury.

<p>Sheriff. Damages. Judgment. Practice in the Superior Court. Before Judge POTTLE. Hancock Superior Court. October Term-, 1879.</p> <p>Reported in the decision.</p>

<p>1. Where a debtor executed to his creditor an absolute deed to land, taking from him an agreement in writing to relinquish all claim thereto on the payment at a specified time of a certain sum of money, and this agreement was canceled and renewed from year to year at each time the payment should have been made by the debtor, a bill in equity by the creditor, recognizing the deed as an equitable mortgage, and praying that upon the failure of the defendant to pay the amount due, that his equity of redemption be forever barred and foreclosed, was not demurrable upon the ground that the complainant had an ample common law remedy. The contracts to relinquish by the creditor, being executed at different times from the deed, were not such defeasances as would constitute it a mortgage which could be foreclosed at law.</p> <p>2. The money to secure which the deed was executed having been borrowed by the debtor to purchase the very land thereby conveyed, there was certainly abundant equity in the bill. The debtor cannot retain both the money and the land.</p>

<p>Non-suit. Estates. Pleadings. Remainder. Practice in the Superior Court. Wills. Before Judge CRAWFORDMuscogee Superior Court. November Term, 1879.</p> <p>Reported in the decision.</p>

Administrators and executors. Contracts. Promissory notes. Before Judge UNDERWOOD. Coweta Superior Court. September Term, 1879. Lynch, as administrator of Chandler, brought complaint against Kirby, as administrator de bonis non of J oseph Bohannan, on a promissory note dated March 6th, 1862, due one day after date to James W. Chandler, or bearer, signed by “ E. Bohannan.” The original declaration, in the short form, was filed December 27th, 1869.

<p>Practice in the Supreme Court. Parties. Service. Before the Supreme Court. February Term, 1880.</p> <p>Reported in the opinion.</p>

Wills. Estates. Title. Grant. Remainder. Res adjudicata. Former recovery. Before Judge Speer. Newton Superior Court. September Term, 1879. Held: and still hold, the stock transferred to them by Graves, trustee, and forming the subject matter of the suit.

The certificate of the presiding judge was not dated at all. The acknowledgement of service was as follows: '• Due and legal service of the within bill of exceptions acknowledged. Copy and all further service waived. This November 4th, 1879. (Signed) B. B. Bower, “ Att'y for J.K. P. Keaton, ex'r of B. 0. Keaton, deft in error.

When this case was called a motion was submitted to dismiss the writ of error because the judge’s certificate to the bill of exceptions did not state it to be true. The material portion of his certificate was as follows:

<p>It appeared from an examination of the record that the judge had approved what purported to be the brief of evidence as stated in the second head-note. The record contained the depositions of several witnesses for the defendants which did not appear in the brief of evidence. The bill of exceptions showed that such omitted testimony was introduced on the trial, but contained no verification of the same.</p>

<p>Pawn. Collateral security. Contracts. Damages. Negligence. Before Judge WRIGHT. Mitchell Superior Court. Maixh Term, 188O.</p> <p>Reported in the decision.</p>

<p>1. Where the evidence introduced by the plaintiff would be sufficient to sustain a verdict in his favor, a non-suit should not be granted.</p> <p>2. In a suit on an open account the plaintiff testified positively as to the correctness of the items; that the goods, the price of which was sued for, were furnished; that most of them were sold by himself, some by his clerk; that he knew the account was correct by the sales and by reference to his books, and that he could not tell exactly what amount he sold because his day-book was burned, but knew that he sold most of them himself, and knew the amount was correct because he kept the books himself :</p> <p>Held, that this testimony was not objectional as being secondary.</p> <p>3. The verdict is supported by the evidence.</p>

<p>1. For a power to sell realty to survive the death of the grantor, it must be coupled with an interest, and that interest must be not in the proceeds alone of the thing to be sold, but in the thing itself. Therefore, an instrument in the form of a mortgage, which provided that in case of default in the payment of the debt thereby secured, it should be lawful for the mortgagees to sell the property covered thereby, and the equity of the redemption of the mortgagor, according to the direction of the act of the legislature in such cases made and provided, accounting for the overplus, after satisfaction of the principal and interest due, the charge for advertising, the costs of foreclosure, and all attorney’s fees and commissions, if there should be any overplus, to the mortagor, did not vest such a power as would survive the mortgagor and take precedence of dower, year’s support, expenses of administration, trust debts, etc.</p> <p>2. That a part of the money, the repayment of which was secured by mortgage, was used in paying the purchase money of the land mortgaged, ■ did not place it on a different status from the balance of the debt, there being no agreement to that effect.</p> <p>3. A testator in his lifetime rented certain land and assigned the rent note or contract, and subsequently re-rented to the same tenant for the same year, and after his death his executor received a part of the rent under the second contract, and applied it to the payment of the year’s support and other legitimate claims. The tenant was insolvent, and therefore a judgment obtained by the assignees was unproductive :</p> <p>Held, that in a distribution of the estate, the assignees of the rent note would have a claim for the amount collected by the executor which would take precedence of a debt for money entrusted to the testator.</p>

<p>Though a deed be made to defraud creditors, neither the vendor nor those in privity with him will be allowed to set up this fact to defeat an action of ejectment brought by the vendee. The deed is good as between the parties thereto and those in privity with them, though void as to creditors. Therefore the declaration of the vendor, whether made before or after the execution of the deed, as to his embarrassed condition, and the object of its execution, would be inadmissible.</p>

<p>1. A minor cannot make a legal sale of land to her guardian.</p> <p>2. While a sale of land by a minor to her guardian is not a legal sale, yet if it is acted on, and she receives a valuable consideration and retains it, or receives the benefit of it after majority, with full knowledge of her rights, she thereby ratifies the sale and will be bound by it.</p> <p>3. All the questions in this case were not fully submitted and passed upon, and a new trial is granted.</p>

Practice in the Supreme Court. Homestead. Before Judge SPEER. Newton County. At Chambers. February 17th, 1880. A ft. fa. in favor of Eckles & Abercrombie vs. Smith et al. was levied on a horse, and Mrs. Smith claimed it as exempted property. On the trial in the justice court where the case originated, it appeared that at the time Smith obtained his exemption he did not own a horse.

<p>1. That the levy of an execution against one defendant does not state as the property of whom the seizure is made, is no ground of illegality.</p> <p>2. Where illegality to execution levied on land is based on the falsity of the return of the constable that there was no personal property to be found, it is insufficient to allege that defendant has a sufficiency of personal property on which to levy; it should be distinctly averred that defendant had such property at the time of the levy, and that it was subject.</p>

<p>1. While we think it a sound rule of practice, in putting witnesses under the rule, to swear all of them on both sides and send them out of hearing until called to testify, still we know of no law which renders a witness incompetent because he has heard some of the testimony on the side opposed to that on which he was called. It might be a ground to attach the witness, but not to exclude him.</p> <p>2. In a criminal case the venue must be proved beyond a reasonable doubt.</p>

Criminal law. Jurors. Charge of Court. New trial. Continuance. Before Judge Speer. Pike Superior Court. April Term, 1880. To the report contained in the decision it is only necessary to add that one ground of the motion was predicated on the fact that several persons were discussing the case near where the jury were at dinner, and some opinions, adverse to the prisoner, were expressed.

<p>Levy and sale. Crops. Before Judge WRIGHT. Mitchell Superior Court. March Term; 1880.</p> <p>Report unnecessary.</p>

<p>Bonds. Principal and surety. Before Judge Butt. Muscogee County. At Chambers. March nth, 1880.</p> <p>Reported in the decision.</p>

<p>Partnership. Estoppel. Newly discovered evidence. New trial. Verdict, Before Judge SPEER. Rockdale Superior Court. February Term, 1880.</p> <p>Hunt, Rankin & Lamar sued Ayers & Co., alleged to be composed of Ayers, Smith and Richards, on an account. Richards pleaded no partnership. The declaration stated the principal debt at $474,00, but the account showed the principal to be $458.13. On the trial, the jury found for the plantiffs $474.00, besides interest. Defendant moved for a new trial on the following, among other grounds:</p> <p>(1.) Because the verdict was contrary to law and the evidence.</p> <p>(2.) Because of newly' discovered testimony. This ground rested on the fact that since the trial one of the defendants (Smith) had refreshed his memory by reference to the invoice book of the firm, and remembered certain new facts.</p>

<p>The record of the application for an exemption under the homestead laws of the state, must affirmatively disclose as whose property, whether of the husband or wife, the exemption was claimed. For failure in this respect the exemplification of the proceedings in securing the exemption was properly excluded.</p>

<p>Trover. Carriers. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>Homestead. Before Judge Hillyer. Newton Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>New trial. Verdict. Contracts. Before Judge SPEER. Bibb Superior Court. October Term, 1879.</p> <p>Reported-in the decision.</p>

<p>i . Where a contract containing a promise to pay both cotton as rent and money for provisions advanced by the landlord, was transferred by the following indorsement on its back: “For value received, I hereby transfer, assign and indorse the within lien and mortgage to R. P. Brooks, with full power to enforce the same ” the landlord became an indorser for value; and in a suit against him by the transferee, the contract was admissible without first showing the insolvency of the tenant.</p> <p>2. Such an indorser did not occupy the position of a surety, but of an indorser for value; and therefore a plea to the effect that about two weeks before the debt became due the indorser notified the holder to make the money, the tenant then having cotton subject therefor, which he afterwards disposed of, that the holder failed to do so, and the debt was thereby lost, was demurrable. Especially so, as the county of the principal was not stated.</p> <p>3. A plea which alleged that the contract and intention of the parties was not to render the landlord liable as an indorser, but simply to transfer the rent contract, and which prayed for a reformation accordingly, was demurrable, there being no specific allegation of fraud, accident or mistake in the use of the term “ indorse.”</p>

<p>Levy and sale. Caveat emptor. Estoppel. Before</p> <p>Judge Erwin. Oconee Superior Court. July Term, 1880.</p> <p>Reported in the decision.</p>

Execution. Judgment. Deed.. Evidence. Presumption. Tax. Levy and sale. Before Judge Wright. Dougherty Superior Court. April Term, 1880, A fi. fa. in favor of “ R. P. Hooper and Louisa P. Hooper ” was levied on certain land as the property of Shackleford, and he interposed a claim on behalf of his wife and children. This claim was based on a tax sale against the defendant, at which his wife bought.

<p>1. That a horse was stolen, and a few days thereafter the defendant sold it some miles away, and made false statements as to the ownership and possession thereof, was sufficient to support a verdict of guilty of larceny.</p> <p>2. Where an important fact was brought to the attention of the solicitor-general for the first time by the statement of the prisoner, there was no error in permitting him to reopen the case to show that fact.</p>

<p>Where defendant’s passenger train was temporarily stopped some distance from the depot for receiving and delivering passengers until two freight trains in advance of it could be moved out of the way, and the plaintiff boarded such train in search of his wife and child, who were thereon as passengers, and in attempting to move from one car to another, by passing around an intervening car, stepped off the platform into a culvert fifteen or twenty feet deep, which he ■ could not see on account of the darkness of the night, thereby sustaining serious personal injury, the company was not liable therefor, even though the lights in some of the cars had been blown out by drunken and disorderly men. The exercise of ordinary care on the part of the plaintiff would have avoided the injury.</p>

<p>i. A municipal corporation is not liable for damages resulting from a failure on the part of its council to perform, or an improper performanee of those powers and duties which.are legislative or judicial in their character. For damages resulting from neglecting to perform, or negligence in' the performance of those duties which are purely ministerial, it would be liable.</p> <p>2. There is no sound distinction as to such liability between a failure to pass an ordinance in the first instance and its repeal or suspension after being passed. Therefore, where a city council passed an ordinance forbidding the running at large of cattle in its streets, but subsequently suspended its operation indefinitely, on the ground, among others, that the growth of weeds and grass was too luxuriant for comfort, health and good appearance, one who was gored by a cow running at large in the streets would not have a cause of action against the city.</p> <p>(a.) Nor would the principle be altered by the fact that the owner paid' a municipal tax on the cow.</p>

Non-suit. Verdict. Jurors. New trial. Before Judge SPEER. Rockdale Superior Court. February Term, 1880. Stevens brought complaint against the Rockdale Paper Mill on the following note : “ One day after date I promise to pay to John Stevens, or bearer, five hundred and eleven dollars and twenty-four gents for labor, with interest at one per cent, per month. February 10th, 1875.

<p>Criminal law. Costs. Witness. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1880.</p> <p>Reported in the opinion.</p>

<p>Pleadings. Set-off. Interest and usury. Before Judge Hansell. Brooks Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

Municipal corporations. Torts. Damages. Principal and agent. Before Judge WRIGHT. Dougherty Superior Court. April Term, 1880.

<p>Statute of limitations. Before Judge Wimberly. Muscogee Superior Court. May Adjourned Term, 1880.</p> <p>On April 23, 1878, Victoria Munroe, formerly Victoria Lowe, Marian Grey, formerly Marian Lowe, Missouri Overton, formerly Missouri Lowe, brought complaint against Laura Phillips, as administratrix upon the estate of Pleasant J. Phillips, deceased, for $10,000.00. The declaration alleged that on January 1st, 1854, defendant’s intestate, being the guardian of petitioners, received as such guardian from Henry Lowe, as the reputed father of petitioners, $4,268.76 for their use, and the said intestate undertook and promised to pay them the aforesaid money when he should be thereunto afterwards requested, yet the said intestate whilst in life, and the said Laura Phillips as his administratrix, since his death, although often requested, to-wit: on January 1st, 1873, hath not paid the same or any part thereof, but the same to pay hath hitherto refused, and still does refuse, to the damage of petitioners $10,000.00. Wherefore they bring suit and pray process, etc.</p> <p>The case was tried on the declaration as above stated without amendment. The remaining facts, so far as material, are stated in the opinion.</p>

<p>Equity. Jurisdiction. Venue. Before Judge SIMMONS. Crawford Superior Court. March Term, 1880.</p> <p>Report unnecessary.</p>

Wills. Administrators and executors. Statute of limitations. Before Judge Buchanan. Douglass Superior Court. January Term, 1880. 1 Summerlin et al., administrators dc bonis non of Lazarus Summerlin, brought assumpsit, in 1879, against Dorsett, administrator of Joseph Summerlin, who had been the executor of said Lazarus. The declaration alleged substantially the facts stated in the head-note.

<p>1. The age of legal majority in this state is twenty-one years. Any one of less age, whether male or female, is an infant.</p> <p>2. Indentures of apprenticeship during minority do not give to the master any higher rights or greater control over a female apprentice than such as the parent could legally exercise, and therefore are not void upon her arriving at the age of eighteen years, as being in restraint of her right of marriage.</p>

<p>Whatever may have been the law prior to the Code, section 2681 declares that where a person having paper title to a tract óf land is in actual possession of only a part, the law construes the possession to extend to the boundary of the tract, thus rendering actual possession of part necessary to constructive possession of balance. Under this principle the defendant showed a valid prescriptive title, and the verdict in his favor was correct.</p>

<p>Where a wife sought to enjoin the sale of her husband’s land on the grounds that she had an interest of $965.00 principal in the fi. fa., that the holder, who was a transferee, had knowledge of her interest, that she was unable to bid on the property and desired to have the sale restrained until she could contest her rights with the holder, there was no abuse of discretion in refusing to restrain the sale, but ordering a sufficient amount to secure her rights to be retained by the sheriff until further order.</p>

<p>1. Where a defendant files equitable pleas setting up facts upon which the jury are to pass, they may return a verdict covering the facts, which will be sufficient and legal, if it decides the issues in the trial so that a decree may be moulded thereon.</p> <p>2. One party to an issue being dead, the other is an incompetent witness as to what passed between them.</p> <p>3. Nor can such a witness testify as to what was reported to her by other parties as coming from the deceased.</p> <p>4. A party having an absolute deed as security for a debt, may recover in ejectment; nor can the maker of the deed defeat a recovery by merely setting up a partial payment of the debt. An equitable plea for that purpose should go further and tender the balance, or allege some good reason why it would be inequitable for him to be ejected, with a proper prayer for relief.</p> <p>5. As full and complete equity can be done by upholding the verdict (it being supported by the testimony), and giving directions for the guidance of the court below, it will be so ordered.</p>

<p>1. An indictment for malicious mischief which charged the commission of the offense in a certain year without naming, either a day or month was'defective, and should be quashed on special demurrer before arraignment.</p> <p>2. The mere shooting of a cow is not rendered criminal by the statute, but only the killing or maiming of cattle or the killing of a hog. In other cases the owner is remanded to his civil action.</p>

<p>Courls of ordinary have general jurisdiction of the granting or revocation of letters of administration. Therefore the judgment granting letters as to a particular estate cannot be impeached collaterally on the ground that the decedent resided in a different county. Such a judgment must be attacked in the court where it was rendered. Especially so when the judgment itself recites the fact that the deceased was late of that county.</p>

Executions. Judgment. Lien. Trust. Before Judge Speer. Monroe Superior Court. February Term, 1880.

<p>Criminal law. New trial. Before Judge SPEER. Butts Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>Estrays. Damages. Freeholders. Before Judge SIMMONS. Houston Superior Court. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>Bankrupt. Homestead. Jurisdiction. Before Judge CRISP. Sumter Superior Court. April Term, 1879.</p> <p>Reported in the decision.</p>

<p>Criminal law. Murder. Jury. Charge of Court. Practice in the Supreme Court. Before Judge SIMMONS. Bibb Superior Court. April Term, 1880.</p> <p>This case is sufficiently reported in the opinion. The defendant was James Roberts, and the deceased, his cousin, Solomon Roberts.</p>

<p>Criminal law. County matters. Before Judge Erwin. Gwinnett Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>Landlord and tenant. Actions. Contracts. Before Judge UNDERWOOD. Floyd Superior Court. March Adjourned Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add that Brown & Lumpkin brought complaint against Dwinell on an account for money had and received ; that the jury found for the plaintiffs, and the cDurt refusing a new trial, the defendant excepted. Brown succeeded the firm, and was the real party to the suit.</p>

<p>Judgment. Decree. New trial. Parties. Before Judge McCUTCHEN. Gordon Superior Court. February-Term, 1880.</p> <p>Reported in the opinion.</p>

<p>Distress warrant. Landlord and tenant. Pleadings. Amendment. Bankruptcy. Principal and surety. Evidence. Before Judge SlMMONS. Houston Superior Court. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. It is a general rule that a defendant cannot be charged with separate and distinct offenses in the same indictment; but offenses which are of the same nature, and differ only in degree, may be joined in an indictment. Further, there are some offenses, though not of the same nature, which may be incorporated in the same indictment if they constitute but one transaction, but not otherwise. Of this class is larceny and burglary occurring together. But even then the allegation is more to fix and establish the burglary than to charge the larceny.</p> <p>2. If two distinct offenses are charged in the same indictment, and no exception is taken thereto by demurrer, the defendant may, nevertheless, demand that the state elect on which it will proceed. If the indictment shows the difference in the charges, the election may be made when it is read; if the difference appears from the evidence, the election may then be made; but it must be called for before the defendant opens his case.</p>

<p>A court of equity has the power to enjoin the publication and circulation of a libel. This principle is applicable to equitable rights arising under the patent-laws of the United States, where the legality of the patent is not the subject of inquiry but is only collateral to the relief sought. Under the facts of this case the discretion of the chancellor in refusing the injunction was not abused.</p>

<p>Where an action ex contractu, was brought in the superior court for one hundred and fifty dollars, and without any plea of set-off, recoupment or payment pending suit, the verdict was for $25.00 “and costs of suit,” on motion the court should have taxed costs against the defendant as in a justice court, and ordered the balance of the costs to be retained out of the recovery. The finding of the jury for costs will be construed in such a case to mean legal costs.</p>

<p>1. Where plaintiff in ejectmént claimed title to land under a sale made by a commissioner appointed by decree of a court of equity, and the defendant by virtue of a deed from a defendant in the equity case, the record of the proceedings in equity was admissible both to show the origin and foundation upon which the chancellor exercised jurisdiction and granted the decree, and also to show that the purchaser bought pendente title.</p> <p>2. If a purchaser buys property directly condemned to sale for a particular debt in a court of common law, and practically the same parties as those to the common law suit carry the property into a court of equity, and there, by decree, sell it, instead of selling under the common law judgment, one who purchases pendente lite is as much affected by that sale as if it had taken place under the common law judgment.</p> <p>3. A court of equity has full power to mould its decrees as to sales so as to meet the exigencies of each case.</p> <p>(a) Whether a sale by a commissioner in equity requires confirmation or not depends on whether the decree ordering it is interlocutory or final. In this case it was final.</p>

<p>Equity. Homestead. Before Judge CRISP. Upson Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

Bankruptcy. Practice in the Superior Court. Attorney and client. Before Judge Lester. Cobb Superior Court. March Term, 1880. Howell moved to set aside certain judgments rendered against him in favor of Glover, on substantially the following grounds: (1.) Because he had been adjudicated a bankrupt prior to the rendition of the judgments.

Prescription. Private way. Easement. Estate. Before Judge LESTER. Lumpkin Superior Court. September Term, 1879. To the report contained in the decision it is only necessary to add the following: In the rear of Boyd’s residence lot was an open tract of land, and across this he was accustomed to go as the nearest way to the road leading to a grist mill and to his farm. After passing over this land a number of years—at least seven, he testifies—he bought a sixth interest in it.

Criminal law. New trial. Evidence. Practice in the Superior Court. Jurors. Before Judge Hillyer. Pike Superior Court. April Term, 1880. To the report contained in the decision it is only necessary to add the following: Leak, a witness for the state, testified as stated in the second head-note. The declarations of the deceased as to who shot him were objected to as not being dying declarations within the rule; but they were admitted.

<p>Alimony. Practice in the Supreme Court. Constitutional law. Evidence. Production of papers. New trial. Before Judge SIMMONS. Houston Superior Court. April Term, 1880.</p> <p>Reported in the opinion.</p>

<p>1. The decree in this case was in accordance with the finding of the ju ry</p> <p>2. To charge in an equity case that the complainant must show the principal point in dispute by clear and conclusive proof, where the defendant denied the right claimed, was error; especially where the answer of the defendant was not under oath, and discovery was waived.</p> <p>(a) Although the court committed some errors in this case, yet the verdict was required by the evidence, irrespective thereof, and the judgment is therefore affirmed.</p>

<p>Landlord and tenant. Emblements. Lien. Money rule. Before Judge Buchanan. Campbell Superior Court. February Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The judgment is supported both by the law and evidence.</p> <p>2. Where a foreign corporation contracts with a machinist out of the state to come within its limits to do certain work, in case of a breach by the company the courts of this state have jurisdiction of a suit to enforce the machinist’s lien as against the property upon which the work was done, located here. The case of Bawknight vs. The Liv. & Lon. & G. Ins. Co. 55 Ga., 194, distinguished.</p>

<p>Practice in the Supreme Court. Laws. Constitutional law. Before Judge LESTER. Cobb County. At Chambers. April 8, 1880.</p> <p>Reported in the decision.</p>

<p>Criminal law. Continuance. Practice in the Superior Court. Charge of Court. Before Judge SNEAD. Richmond Superior Court. April Term, 1880, .</p> <p>Reported in the decision.</p>

<p>1. The evidence being conflicting, this court will not control the discretion of the court below in refusing a new trial.</p> <p>2. Where an employ^ fails to obey orders, to comply with his contract, was incompetent for the position he had assumed, or his conduct was such that he was injuring the business of his employer by selling at a loss, or by driving off the customers, in case of his discharge, he cannot recover for the time he did not serve, and whatever damage his employer has sustained, he can recoup against what wages may be due the employe.</p> <p>3. Such conduct would authorize the discharge of the employé. The jury must determine whether his discharge was really caused thereby, or whether it resulted from the dullness of business. A slight mistake, working no injury, that would ordinarily be made, would not be a breach of the contract.</p>

<p>Practice in the Superior Court. Charge of Court. New trial. Before Judge CRISP. Early Superior Court. Octoher Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>Criminal law. Practice in the Superior Court. Before Judge HiLLYER. Newton Superior Court. MarchTerm, 1880.</p> <p>Reported in the decision.</p>

<p>[Jackson, Chief Justice, was providentially prevented from presiding in this case.]</p> <p>Where to a suit brought in Georgia on a judgment rendered in the state of Tennessee, the defendant pleaded his discharge in bankruptcy, and it appeared that he was adjudged a voluntary bankrupt pending the suit in Tennessee, but failed to plead that fact, or to ask a stay of the proceedings on that account, and the judgment was subsequently rendered, and he thereafter obtained his discharge :</p> <p>Held, that the plea was a valid bar to a recovery. The Tennessee judgment did not-constitute a new debt, but simply a new security for the old debt, and of itself had no force or effect in Georgia.</p>

<p>New trial. Practice in the Supreme Court. Before Judge COBB. City Coiirt of Clarke County. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The verdict in this case was not contrary to law or the evidence.</p> <p>2. It was not admissible to ask a prosecutrix if she did not make certain statements in reference to the case on trial to an attorney different from those testified to by her, it appearing that such statements were made, if at all, in contemplation of the employment of the attorney to prosecute the case, although he was not actually employed until afterwards. If, however, in the examination in chief the witness should testify to anything occurring in such communications material to her side of the case, the other party would have the right to inquire concerning the entire conversation. If there should be anything tending to criminate her and she should refuse to answer as to it, the whole conversation should be excluded.</p> <p>3. If counsel in argument travel outside of the case, the attention of the court should be called to it, and his ruling invoked either to restrain counsel or by way of a request to charge. It is too late to raise the point on a motion for new trial.</p>

<p>Husband and wife. Contracts. Before Judge COBB. City Court of Clarke County. April Term, 1880.</p> <p>Reported in the decision.</p>

Equity. Administrators and executors. Before Judge Crisp. Lee Superior Court. March Adjourned Term, 1880. To the report contained in the decision it is only necessary to add the following: The will of Leggin, under which McRae, administrator de bonis non, was acting, provided that certain property should be sold for the payment of debts, it gave certain specific bequests, and left a share of the residue to his wife for life with remainder over.

<p>Sheriff. Actions. Costs. Before Judge SlMMONS. Bibb Superior Court. April Term, 1880.</p> <p>Reported in the head-note and decision.</p>

<p>1. The evidence was sufficient to sustain the verdict.</p> <p>2. Where it was shown that a witness upon a former trial had since committed a homicide, had been advised to go off, had not been heard of in several years, and that his wife and sisters either did not know where he was, or would not communicate his whereabouts if they did, that he was inaccessible was reasonably established, and secondary evidence as to what his testimony was on the first trial was admissible.</p> <p>3. Where there are several lessors in ejectment, deeds from the one to the other are admissible in evidence,, whether void or voidable, to .show privity between them, and to establish the right of the plaintiff to use their names.</p> <p>(a). Under art. ix, sec. viii, par. 1 of the constitution of 1877, a deed conveying homestead which had been set apart under the constitution of 1868, and the acts passed thereunder, is not void.</p> <p>(¿). When the consideration of a deed conveying a homestead set apart under that constitution was to secure a debt which was superior to the homestead, the title passed.</p> <p>('c). Though a deed tendered in evidence by the plaintiff in ejectment conveyed no title, it should be admitted subject to have its legal effect construed by the court.</p> <p>4. Where a recovery in ejectment is had upon a declaration containing several demises, the verdict will be upheld though but one of the demises be good.</p> <p>5. Where ejectment was brought in the year 1874 on the demises of the beneficiaries of a homestead and of the purchasers therefrom, and was pending at the date of the act of 1876, even though the conveyance of the homestead was void, the title remained in the the beneficiaries and a recovery could be had on their demise.</p> <p>6. Where one of the heirs of an estate having one-third undivided interest in certain lands, executed a mortgage thereon in the year 1867, and foreclosure was had, a sale thereunder only conveyed such one-third undivided interest, and made the purchaser a tenant in common with the other heirs, though subsequently to the date of the mortgage, and before the sale, a division was had by agreement, and a specific portion of the land was set apart to the mortgagor, and a homestead laid off to him and his family therein.</p>

<p>Evidence. Executions. Mortgage. Lien. New trial. Before L. C. HOYL, Esq., Judge pro hac vice. Randolph Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

<p>Homestead. Before Judge WRIGHT. Dougherty Superior Court. April Term, 1880.</p> <p>This was a suit on notes made by D. W. Price & Son to Ives, Faulk &Co. Ehrlisch obtained possession of them and brought suit and garnished W. T. Jones for a sum of money he had in his hands belonging to D. W. Price, one of the defendants. Pending the suit against Price & Son, and before judgment against them, D. W. Price applied to the ordinary for homestead and exemption, and had the same set apart to him in due form. He took the homestead and exemption for his family consisting of a wife and minor children. He forgot to include in his application the sum of money in the hands of W. T. Jones, bu't immediately upon the discovery of the omission, he made application for a supplemental homestead and exemption in accordance with the statute. The original homestead and exemption, as was the supplemental one, were duly passed by the ordinary, and the usual orders exempting the property from levy and sale were passed. The ordinary passed an order exempting the money of D. W. Price in the hands of W. T. Jones from process of law and vesting it in D. W. Price and family. When this was done, Jones paid the money over to Price, under the said order of the ordinary, less sixty dollars, which he retained in his hands.</p> <p>The debt on which the garnishment and suit were founded was contracted subsequent to 1868 and prior to the adoption of the constitution of 1877. The jury found against the garnishee for the full amount that was in his hands, notwithstanding the fact that he had paid it all over to Price, the applicant for homestead and exemption, except sixty dollars, under the order of the ordinary.</p> <p>Jones made a motion fora new trial, which was refused, and he excepted.</p>

<p>Illegality. Tax. Jurisdiction. Before Judge Lester. Cobb Superior Court. November Term, 1879.</p> <p>Reported in the decision.</p>

<p>Damages. Verdict. Practice in the Superior Court. New trial. Before Judge Butt. Talbot Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>Ordinaries. County matters. Officers. Judgment. Jurisdiction. Before Judge CRISP. Early Superior Court. October Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>Appeal. Certiorari. Justice Court. Before Judge CRAWFORD. Muscogee Superior Court. November Term, 1879.</p> <p>Reported in the opinion.</p>

Justice courts. Jurisdiction. Waiver. Evidence. Before Judge WRIGHT. Calhoun Superior Court. March Term, 1880. Two suits for $100.00 each were brought in a justice court by Thurston et ux vs. Wilkerson; judgments were rendered in twelve days from the beginning of the suits. Fi. fas. issued and w'ere levied, and affidavits of illegality filed; the justice sustained the illegalities, and plaintiffs appealed.

<p>Equity. Before Judge SlMMONS. Bibb Superior Court. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>New trial. Evidence. Before Judge HOOD. Early Superior Court. April Term, 1880.</p> <p>Reported in the opinion.</p>

<p>Process returnable to the April term, 1873, of Twiggs superior court, was served fourteen days before the beginning of the term. The names of counsel were marked on the bench docket as appearing for the defendant, and the following entries were made by the presiding judge: “Oct. adj., 1873, appearance term of term. April,T., 1874, put to heel. Oct. T., 1874, judgt.” The judgment was by default:</p> <p>Held, that under the facts of this case, the defect in the service was waived, and a levy founded on the judgment so rendered should not be dismissed on the ground that it was void.</p>

<p>Criminal law. New trial. Before Judge Butt. Talbot Superior Court March Term, 1880.</p> <p>Reported in the decision.</p>

<p>The bill of exceptions, as certified to by the judge, must show clearly the errors complained of, or the writ of error will be dismissed.</p>

<p>Husband and wife. Prescription. Title. Minors. Before Judge HOOD. Miller Superior Court. October Term,' 1879.</p> <p>Reported in the decision.</p>

<p>1. Where suit was brought on a promissory hote having several makers and indorsers, and judgment obtained agaist two of them, they only being served, it barred another suit on the note as to them.</p> <p>2. Where suit against two makers of a promissory note was barred by reason of a former recovery, their residence did not confer jurisdiction on the superior court of their county in a subsequent suit against all of the makers and indorsers.</p>

<p>1. Where a perpetual injunction against the enforcement of an execution was proper on a final decree, a temporary restraining order,</p> <p>■ pending the litigation, to protect property levied on, was not improper,</p> <p>2. Property acquired by the bankrupt since his adjudication, is not subject to a judgment rendered before, even though it may never have been proven in the bankrupt court.</p>

<p>x. The evidence is conflicting, and a new trial will not be awarded on the ground that the verdict is contrary thereto.</p> <p>2. While one party to a cause of action may testify as to a contract between himself and the agent of the other within the scope of the latter’s agency, although the principal be dead, the agent being alive and able to confront him, yet he may not testify to mere statements of the deceased repeated to him by the agent touching a past contract between the principals.</p> <p>(a). Nor does it alter the case that the agent subsequently became the executor of the deceased and a party to the suit. He was not a party to the contract.</p> <p>3. The contract between the indorser and payee of a promissory note is distinct from that between the payee and the maker. Therefore in a contest between the indorser and payee, which could not in any way affect the liability of the maker, he was not rendered an incompetent witness by the death of the payee.</p> <p>4. Where one indorsed a promissory note, to be liable in the second instance, and subsequently became the attorney of the holder in endeavoring to secure payment from the maker, and in a suit on his indorsement pleaded a release from liability, letters from him to his client which were otherwise admissible, were not rendered inadmissible, by the fact that they related to an effort to effect a compromise between the client and the principal debtor. To exclude them as relating to a compromise it must be one in which the writer was interested.</p> <p>5. The relation of attorney and client is eminently one of trust and confidence. Where the attorney to collect a debt from the principal debtor was himself liable in the second instance, the statute of limitations as to his liability ran from the time when the debt could not be collected from the principal, and when the liability of the attorney was made apparent to the client.</p> <p>(a) . While the client was bound to ordinary diligence to discover the insolvency of the principal debtor, he was entitled to the diligence, knowledge and advice of his attorney on that subject.</p> <p>(b) . The testimony stated in the second head-note was inadmissible for the further reason that it tended to show the bona fides of the witness in his relation as attorney for the deceased.</p> <p>6. A. letter written by one party to a suit for the purpose of effecting a compromise with the other, is not admissible in evidence.</p> <p>7. The published volumes of supreme court reports do not furnish the highest evidence of the judgment of affirmance or rever al in a particular case. The remittitur is the best evidence thereof.</p> <p>8. We find no material error in this case other than those specified above.</p>

Practice in the Supreme Court. September Term, 1879. Veal et al. applied for a writ of possession against Robinson, requiring the sheriff to put them in possession of certain land which they alleged they had bought at sheriff’s sale. Robinson answered, setting up irregularities in the levy, etc., and disclaiming title in himself. The court struck all except the disclaimer, and that was withdrawn.

<p>1. A charge not warranted by the evidence- should not be given.</p> <p>2. Partners may dissolve inter sese by consent, but in order to relieve a retiring partner from liability to one who has dealt, and continues to deal, with the firm on the faith of his being a member, notice of the dissolution is necessary; especially where the firm name remains unchanged.</p> <p>(a) Actual notice is required. Therefore, a publication in a paper which does not circulate in the vicinity where the person to be notified resides, without more, would not be sufficient.</p> <p>3. The verdict is not contrary to law or evidence, except in so far as controlled by the erroneous charge.</p>

Practice in the Supreme Court. Practice in the Superior Court.- Certiorari. Before Judge MERSHON. Dodge Superior Court. May Term, 1880. Sapp brought suit against Adams, superintendent of the Macon & Brunswick Railroad, in a justice court, for damages to a horse, resulting from failure to keep a crossing in proper repair. The case involved disputed questions of fact. The justice rendered judgment for the plaintiff for $50.00 and costs. Defendant sued out a certiorari.

<p>Injunction will not be granted to restrain an action at law where the grounds urged therefor can as readily be set up as a defense to such action. To warrant interference by injunction, it must appear that the remedy at law is not complete. The concurrent jurisdiction of courts of law and equity has been greatly enlarged, and the court first taking jurisdiction will retain it, unless some good reason can be given for the interference of the other.</p>

<p>Equity. Amendment. Banks. Tort. Felony. Practice in the Superior Court. Auditor. Discovery. Charge of Court. New Trial. Practice in the Supreme Court. Damages. Before Judge POTTLE; Richmond Superior Court. October Term, 1879.</p> <p>Reported in the opinion.</p>

<p>L filed a bill for account and settlement against B, who answered in the nature of a cross-bill, making J a party. J answered in the nature of a cross-bill against both B and L. B filed a plea of bankruptcy, and the case was dismissed as to him ; it proceeded to trial between J and L. J excepted to the dismissal as to B :</p> <p>Held, that both L and B were necessary parties to the bill of exceptions, and for failure to serve L the writ of error will be dismissed.</p>

<p>Possessory warrant. Fraud. Action. Before Judge Butt. Chattahoochee Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>Equity. Injunction. Railroads. Constitutional Law. Eminent Domain. Before Judge UNDERWOOD. Floyd County. At Chambers. April 9th, 1880.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Charge of Court. New Trial. Before Judge Hood. Randolph Superior Court. May Term, 1880.</p> <p>Jones was indicted for the murder of his little step-son. One count in the indictment charged death by strangulation, another by burning. The corpse when found was in the fire-place. . It bore marks both of burning and strangulation. The court charged, among other things, as follows: “ If it be true, under the evidence (under the rules of law I will hereafter give you in charge) as charged by the state in this case, that the accused, Luther Jones, killed this child of tender years (there being no dispute as to the age of the deceased), you will look to the evidence and see what was the provocation for the deed, what circumstances of alleviation, palliation, or justification are in the case ; if the circumstances are not shown does it not follow that the killing shows an abandoned and maglignant heart, etc.? * * * If, therefore, you should find from the evidence (and I express no opinion on the evidence in the case) that the deceased was killed by the defendant,” etc.</p> <p>Defendant was convicted. He moved for a new trial, which was refused, and he excepted.</p> <p>For the other facts, see the decision.</p>

<p>When in the bankrupt court an exemption is granted by the judge or register, such exemption is no more subject to levy and sale than if it had been set apart by the ordinary having jurisdiction thereof.</p>

<p>Levy and sale. Practice in the Superior Court. Before Judge PATE. Pulaski Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

<p>A merchant whose agent purchased goods in New York on a credit'— • although the credit was unauthorized—cannot refuse to pay, when he has received and sold the goods, and pocketed the proceeds; especially where he has paid other bills made by the same agent.</p>

<p>[Jackson, Chief Justice, was providentially prevented from presiding in this case.]</p> <p>Railroads are required by law to establish posts on each side of public crossings, to blow the whistle and check the speed of its trains in approaching them, so as to be able to stop should any one be on the crossing. While these provisions are intended to protect life and property at such crossings; yet where an accident took place just beyond a crossing, the fact that these requirements were disregarded maybe considered by the jury in determining the question of negligence on the part of the employes of the railroad.</p>

<p>Lien. Railroads. Actions. Service. Before JAMES T. WlLLIS, Esq., Judge pro hac vice. Harris Superior Court. October Term, 1879.</p> <p>Reported in the opinion.</p>

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

<p>1. The verdict in this case is contrary to law and the evidence.</p> <p>2. A prayer for general relief, in addition to specific prayers, in a bill in equity, will only warrant the granting relief pertinent to the case made by the bill. Therefore such a prayer added to a bill, the specific object of which was to enjoin a trespass, would not warrant a determination of the title to the premises.</p> <p>3. A charge not warranted by the evidence should not be given.</p>

<p>Rule. Sheriff. Levy and sale. Before Judge HOOD. Terrell Superior Court. May Term, 1880.</p> <p>Reported in the opinion.</p>

<p>Levy and sale. Mortgage. Charge of Court. New Trial. Before Judge WRIGHT. Dougherty Superior Court. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The verdict in this case is contrary to evidence. One who has made a valid conveyance of personalty cannot afterwards avoid the transfer by his mere admissions that the property is his, there being no question of fraud, and the debt under which the property is sought to be subjected, having been contracted after the transfer.</p> <p>2. For a justice to admit a written conveyance of personalty in evidence before a jury, remarking that “the court thought the deed to personalty was worth but little, but as the jurors were judges of the law and evidence, he would permit it to go before them for their consideration,’ if it was worth anything to them,” was error, and was a good ground for certiorari.</p>

<p>Corporations. Trust. Debtor and creditor. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1880.</p> <p>Reported in the opinion.</p>

Equity. Practice in the Superior Court. Specific performance. Contracts. New Trial. Before Judge Snead. Richmond Superior Court. Held: all the members being present. Various matters regarding the general interest of the Company and the progress of work at the mines was considered, and the following resolution was offered by Col. Clark, and adopted : “ Resolved, That the president at once proceed to purchase * * * (certain named articles). “Judge William Tuggle was…

<p>Criminal Law. New Trial. Before Judge CRAWFORD. Muscogee Superior Court. November Term, 1879.</p> <p>■Reported in the decision.</p>

<p>The setting apart of a homestead under the constitution and act of 1868, even though subsequently confirmed in the bankrupt court, does not protect property from a judgment rendered prior both to the adoption of the constitution of 1868 providing for such homestead and the passage of the bankrupt law of the United States.</p>

<p>New Trial. Evidence. Béfore Judge MERSHON. Dodge Superior Court. May Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add the following :</p> <p>Plaintiffs sought to show that they did not hold the land as payment of the debt; that it had been levied on and sold as the property of defendant under a justice court ft. fa., and they had bought it. One of them was on the stand as a witness, but stated nothing about the possession of the ft. fa. It was shown by the sheriff and clerk that the former turned over the ft. fa. to the latter for record with the deed to the purchasers, that the deed was recorded, but the ft. fa. was not, and that neither the sheriff nor clerk could find it. Plaintiffs offered to prove the contents of the ft. fa. and its entries by parol. This was rejected, and is one of the errors alleged.</p>

<p>Practice in the Supreme Court. New Trial.' Before Judge McCutchen. Bartow Superior Court. July Term, 1879.</p> <p>Reported in the opinion.</p>

Partnership. Principal and agent. Contracts. Promissory notes. Before Judge HlLLYER. Cobb Superior Court. November Term, 1879. Huguley sued Morris & Tumlin on a promissory note for $1,050.00. They pleaded (1), the general .issue,-and (2), that they had embarked in a speculation in negroes, which had been settled up before the note was given—in the nature of a plea of no partnership.

Equity. Injunction. Before Judge Erwin. At Chambers. Gwinnett County. June 9th, 1880. Reported in the decision. See also reports of the same case when argued at the September term, 1878, and the February term, 1880, not yet published.

<p>Homestead. Waiver. Judgment. Before Judge LESTER. Cherokee Superior Court. February Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The special jury provided for the trial of appeal cases from justice courts, by the act of 1878, is to be taken from the panels of traverse jurors, and not from the grand jury.</p> <p>2. While generally a party cannot directly impeach his own witness, yet he may contradict him by proving the facts to be otherwise than as the witness has stated them.</p> <p>3. The verdict is supported by the evidence.</p>

<p>Contracts. Fraud. Equity. Before Judge UNDERWOOD. Chattooga Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. Where the proof is that the plaintiff, having ceased to sell goods to the defendant, then sells them to his wife on her own credit, and so charges them, such a sale does not bring the previous account of the husband, which has stood for more than four years, within the statute of limitations.</p> <p>2. Open accounts are barred after four years from the time when the right of action accrues. Accounts between merchant and merchant, which concern the trade of merchandise, have been made an exception to the rule, and to this have been added mutual accounts between others than merchants.</p> <p>3. Where a sale of goods has been made, in the absence of proof of either contract or custom concerning payment therefor, the presumption is that the amount is payable on delivery.</p> <p>4. The contract of a wife for goods sold to her on her own credit alone is not binding on the husband, though the seller may have expected her to get the money from her husband.</p>

<p>A deed to land, or a bill of sale to personal property, given to secure a debt, passes the title and protects the property again t all liens created by contract 'or judgment thereafter, and this whether the wife’s consent was previously obtained, or whether the conveyance was recorded.</p>

Equity. Administrators and executors. Before Judge JOHNSON. Johnson Superior Court. March Term, 1880. Johnson, administrator, filed his bill agains Flanders et al., alleging substantially the facts set out in the headnote. On demurrer the court dismissed the bill, and complainant excepted.

<p>Verdict. New trial. Claim. Parties. Before Judge Lawson. Greene Superior Court. March Term, i860.</p> <p>Reported in the decision.</p>

<p>Possessory warrant. Before Judge Erwin. Haber sham Superior Court. April Term, 1880.</p> <p>Reported in the opinion.</p>

Fraud. Title. Warranty. Actions. Trover. Before Judge LAWSON.' Putnam County. At Chambers. January 27th, 1880. Pennaman brought trover for a mule against Dawson in a justice'court. On the trial, the evidence in his behalf was, in brief, as follows: Plaintiff went to a livery stable where defendant had his mules and horses for sale, for the purpose of effecting a trade or swap with him. Plaintiff told defendant that he wanted a good family horse.

<p>Landlord and tenant. Distress warrant. Pleadings. Before Judge PATE. Washington Superior Court. May Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

Amendment. Attachment. Levy and sale. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1879. Lockett sued out an attachment against Cooper, as administrator of the estate of Braswell, and W. L. Fowler, on the following note: ‘■‘$145.00.

<p>Carriers. Railroads. Vendor and purchaser. Stoppage in transitu. Before Judge Sfeer. Bibb Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

<p>1. The verdict is not contrary to law or the evidence.</p> <p>2. An objection that the judge, in a murder case, failed to amplify his charge on the subject of reasonable fears will not necessitate a new trial, where it appears that no request to charge on that point was made, and that the charge as given contained substantially the amplification desired.,</p> <p>3. Counsel may read and comment on the law to the jury in a criminal case. During the argument he may invoke the opinion of the court upon any principle of law involved in the case, and the court may rule upon it in his charge, or at the time, if his mind is settled in regard to it.</p> <p>4. Where a motion for new .trial was set for a hearing during a certain session of the superior court, and was heard at that time, the court had the right to withhold its decision for further consideration without any order for that purpose. In the present case, moreover, the decision was rendered during the term.</p>

<p>Contracts. Construction. Before Judge LESTER. Cobb Superior Court. March Term, 1880.</p> <p>Reported in the opinion.</p>

<p>Certiorari. Railroads. Damages. Negligence. Practice in the Supreme Court. Before Judge Snead. Columbia Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>Officers. Laws. Costs. County matters. Before Judge Snead. Burke Superior Court. November Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

<p>1. If suit be brought on an account which is not transferable by parol, in the name of the original owner for the use of the equitable owners, it is no ground for a non-suit that the latter could not sue in their own names. It is a matter of no consequence to the defendant, who cannot be hurt by the addition of the use clause to the name of the original owner.</p> <p>2. Where a letter of credit, under which goods were delivered to the bearer and charged to the writer, was lost, it was not necessary to establish a copy in a separate proceeding. The contents could be proved by parol in a suit for the price of the goods.</p>

<p>1. It was error for the court to refuse a request to charge, and to state in the hearing of the jury that there was no evidence to authorize such a charge, when, in fact, there was such evidence.</p> <p>2. When an attorney represented a party in court with his knowledge, and he did not object thereto, the presumption is that such services were rendered with his consent, and under an implied contract to pay what those services were reasonably worth. But it does not follow, if there were more parties than one on a side, and the attorney was employed by only one, and the others had knowledge that he was representing the whole case, and the services were for their benefit, and accepted by them, that to avoid liability it was their duty to have notified the attorney that they would not be liable.</p> <p>3. It was error for the court to repeat again and again that portion of his charge which was favorable to the plaintiff, but not that part which was favorable to the defendant.</p> <p>(a). The motion for new trial was approved without qualification or reference to the general charge of the court, April 8th, 1880 (the trial having been on March 18th); in the record is what appears to be the charge of the court; at its close is an order of court, dated April 8th, 1880, stating that it is the substance of his charge, and directing the clerk to send up a copy of it as a part of the record:</p> <p>Held, that this cannot be considered for the purpose of qualifying the grounds of the motion for new trial in the absence of all reference thereto in connection with the approval.</p>

<p>1. It is too late, at the trial term of an equity cause, to move to dismiss the bill because there is a complete common law remedy.</p> <p>(a) Where the beneficiary of trust property illegally sold, was a minor, and after attaining majority he repudiated the sale and brought ejectment for the lot, a bill to enjoin the same, claiming compensation for valuable improvements innocently placed thereon by the purchasers, would not be. without equity.</p> <p>2. Where a bill was brought to enjoin an action of ejectment, it was too late to move to try both cases together after the testimony in the equity cause had closed and the argument was about to begin.</p> <p>3. Where in an equity cause, questions were drawn up by counsel for complainants, and read in the hearing of opposing counsel, it was not sufficient for the latter to state generally that he objected to the questions; he should have specified the grounds of objection, and where he agreed to state them in argument, but failed to do so, the objection will not be considered here.</p> <p>4. The verdict is not contrary to the evidence.</p> <p>5. A chancellor at chambers has jurisdiction, under section 4221 of Code et seq., to order a part of a trust estate to be sold to pay a debt which was an incumbrance on the whole estate, the cestui que ¿rusts assenting thereto, and all parties in interest having notice and being properly represented.</p> <p>6. Although a purchaser from a trustee may have had notice of the trust, yet if he also had notice that his grantor held the claim which bound the trust estate, and received a deed from the trustee, under authority of the chancellor, conveying a portion of the trust estate, he would stand, in equity, upon the same footing as a purchaser without notice.</p> <p>7. Beneficiaries of trust property sold under an invalid order of the chancellor, who for years have seen the purchasers erecting valuable improvements thereon without objection, are estopped from setting up title thereto.</p> <p>(a.) Would a minor old enough to understand his rights be estopped by similar conduct ?</p>

<p>1. Where the record is so confused or imperfect that an alleged error cannot be passed upon, it will not be considered.</p> <p>2. That an indictment states that the grand jurors were “sworn, chosen and selected,” is no ground for quashing it.</p> <p>3. Although a juror may appear to be competent when put upon his voir dire, and may have been sworn in chief, still he can be proved incompetent and rejected.</p> <p>4. On a trial for rape it is essential to show, either by direct or indirect evidence, actual carnal knowledge. This not being shown in the present case, the verdict is contrary to law.</p>

<p>Equity. Banks. Corporations. Stockholders. Before Judge SlMMONS. Bibb Superior Court. October Adjourned Term, 1879.</p> <p>Reported in the opinion.</p>

<p>Lien. Distress warrant. Justice Courts. Actions. Before Judge WRIGHT. Decatur Superior Court. May-Term, 1880.</p> <p>Reported in the decision.</p>

<p>(Jackson, Chief Justice, was providentially prevented from presiding in this case.)</p> <p>1. The act of 1872 did not confer on the commissioners of Whitfield county judicial powers except as to roads.</p> <p>(a). If they had any judicial powers as to claims against the county, a refusal to pay unaccompanied by any judgment as to correctness or incorrectness, would not be conclusive.</p> <p>2. Mandaimts may be a proper remedy to compel a board of commissioners to pay a fixed and established debt, but suit is the proper mode of determining a liability which is unliquidated and denied.</p>

<p>Claim. Sales. Before L. N. WHITTLE, Esq., Judge pro hacvice. Bibb Superior Court. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>Equity. Fraud. Trusts. Before Judge LAWSON. Greene Superior Court. March Term, 1880.</p> <p>Nancy E. Park filed her bill against James B. Park, alleging, in brief, as follows: In 1862 Betsy Ann Park died testate. By her will she left to complainant a legacy consisting of certain personalty and two thousand dollars out of the money then on hand; there was on hand four thousand dollars in specie. Very shortly after the testator’s death, the executor sold this specie for Confederate money at a premium, and used the money so received to pay his own debts. He has frequently admitted the justice of the claim, and has declared his intention to pay it. He never made any returns except one, which, with the appraisement, was made in 1863. Both were illegal and fraudulent. In 1880, after complainant had demanded her legacy, he endeavored to make a return and.to keep the same secret, thereby evidencing his intention to defraud her. She became of age in 1870, and has since demanded payment of her legacy, which has been refused. The object of the bill was to have an account and settlement.</p> <p>Defendant demurred to this bill on the following grounds:</p> <p>(1.) For want of equity.</p> <p>(2.) Because there was an ample common law remedy.</p> <p>(3.) Because the returns of the executor were not exhibited to the bill.</p> <p>By amendment he demurred to all that part of the bill relating to such returns. The court sustained this ground of demurrer, and struck that part of the bill. The other grounds he overruled. Defendant excepted.</p>

Pleadings. Evidence. Contracts. Before Judge WRIGHT. Baker Superior Court. May Term, 1880. To the report contained in the decision and head-notes it is only necessary to add that there was evidence tending to show that the railroad stock mentioned in the contract had been received by Mrs. Couch and some dividends collected ; and also, that it was of small value at first, and depreciated to nothing.

<p>Pleadings. Recoupment. Set-off. Promissory notes. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1880. *</p> <p>Reported in the decision.</p>

<p>Certiorari. Practice in the Superior Court. Before Judge UNDERWOOD. Floyd Superior Court. January Term, 1880.</p> <p>Reported in the decision.</p>

<p>Criminal law. Venue. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1879.</p> <p>Reported in the decision.</p>

Criminal law. New trial. Charge of Court. Alibi. Practice in the Superior Court. Evidence. Before Judge WRIGHT. Baker Superior Court. May Term, 1880. To the report contained in the decision it is only necessary to add the following: Wade was indicted for the murder of one J. L. Ready. One defense relied on was alibi. He was found guilty, and the jury recommended that he be imprisoned for life. He moved for a new trial, which was refused, and he éxcepted.

Judgments. Lien. Contracts. Evidence. Title. Claim. Before Judge McCUTCHEN. Whitfield Superior Court. April Term, 1880. A fi.fa. in favor of Lanier against Varnell, founded on a judgment rendered in May, 1875, was levied on certain land, and Henry Brooker claimed. The following are, in brief, the facts: Bacon sold the lot of land to J. W. & W. H. Brooker on June 1st, 1870.

<p>1. The verdict is supported by the evidence.</p> <p>2. That the principal witness for the state,on whose testimony the conviction largely rested, had had a serious personal difficulty with the prisoner, and testified under strong feelings of malice, and that defendant’s counsel did not know of the difficulty until after the trial, furnished no ground for new trial. The defendant knew the facts and should have communicated them to his counsel.</p>