Volume 66 — Georgia Reports

<p>Equity. Levy and sale. Before Judge JOHNSON. Emanuel Superior Court. April Term, 1880.</p> <p>Reported in the opinion.</p>

<p>1. Where petitioner, upon the common law side of the court, shows by his pleadings that under a written agreement his right to redeem ' certain lands expired at a given time, but sets up that it was also agreed that if he did not redeem, defendant was to pay to him the ^difference between the amount advanced and what the property ' brought at sheriff’s sale, and, also, that defendant had sold to a bona . fide purchaser for an amount largely more than the sum advanced, and prayed that he may be allowed to redeem the land, or if this could not be effected on account of the sale, that defendant may be required to account to him for the difference between the amount advanced, etc. and that at which the property was sold:</p> <p>Held, that if the purpose of plaintiff was to redeem the land, the present owner was a necessary party, and he could not be made a party to this proceeding at law by amendment.</p> <p>2. That in the absence of any averment that the agreement as to the payment to petitioner of the difference, etc. was in writing, or that it was omitted from the written contract by fraud, accident or mistake, the latter will be taken as covering the entire agreement between the parties, and the demurrer to the proceeding was properly sustained.</p>

Equity. Handwriting. Evidence. Witness. Charge of Court. New trial. '’Before Judge Snead. Richmond Superior Court. October Term, 1879. To the report of the facts of this case found in the decision, it is only necessary to add that Mrs. Cook had testified on a former trial, and the same testimony was again introduced on the second trial. The material point in her testimony was that the Cook receipt had come from her possession, and had been delivered by her to Mrs. Girardey.

Tax. License. Municipal Corporations. Evidence. Before Judge Fleming. Chatham Superior Court. March Term, 1880. Feeley brought suit,against the Mayor, etc., of Savannah, to recover money which he alleged they had unlawfully compelled him to pay for license fees *of the privilege of running his omnibusses, when he claimed that he already had the right to do so under his license as the keeper of a public stable.

<p>1. Where witnesses substantially answer cross-interrogatories, either by immediate responses or by reference to certain answers to direct'interrogatories, their testimony will not be suppressed because the cross-interrogatories are not more fully answered.</p> <p>2. In a suit against a railroad for loss of goods shipped' over its line, it was competent for the defendant to prove by the agent of a connecting road delivery in good order to it; and although the witness may never have seen the goods, he may testify from the books of 'his company, the entries having been made by 'him in the usual order of business, and the books having been proved to be accurate.</p> <p>3. When a writing is shown to be lost or beyond the jurisdiction of the court, secondary evidence of its contents is admissible.</p>

<p>1. While, as a general rule, water flowing under the surface may be diverted without liability to a proprietor whose land it might reach in its natural and ordinary course, yet where it .has once emerged and afterwards sinks, if its exact course can be traced to where it emerges again, so as to render it certain that it is the sanie water, the proprietor of the surface at the latter point will be protected in its use the same as if it were not a subterranean stream.</p> <p>2. Where the chancellor has denied an injunction on a doubtful state of facts, the evidence before him being conflicting, this court will not control him.</p>

New trial. Accord and satisfaction. Custom. Contracts. Statute of limitations. Domestic relations. Before Judge Mershon. Glynn Superior Court. May Term, 1880. The following, in connection with the decision, sufficiently reports this case: In 1879, Blain brought complaint against Madden on an open account for medical services. The first three items were dated in 1874, the others from 1875 to 1878.

<p>Criminal law. Evidence. Before Judge HlLLYER. Fulton Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

<p>Lien., Before Judge McCUTCHEN. Bartow Superior Court. January Term, 1880.</p> <p>Reported in the decision.</p>

Evidence. Res gestee. New trial. Before Judge LAWSON. Greene Superior Court. March Term, ic8o. Newsom brought case against the Georgia Railroad.

<p>Jurisdiction. Justice of the Peace. Actions. Evidence. Before Judge Pate. Glynn Superior Court. November Term, 1879.</p> <p>Tufts went before a magistrate of Chatham county and made an affidavit to dispossess DuBignon, as a tenant holding over, of certain land in Glynn county. The affidavit also stated that DuBignon was in possession of certain described personal property, which he had leased from deponent, and that he failed to deliver both the realty and personalty, on demand, after the expiration of the lease. The justice issued' a warrant covering both realty and personalty. Defendant filed his counter-affidavit, and also moved to dismiss the proceedings on the following grounds: (1). Plaintiff seeks to get possession of personal property under a warrant to dispossess a tenant holding over. (2). Because the affidavit was made before a justice in Chatham county afid a warrant issued by him to dispossess a tenant of property in Glynn county. (3). Because there was no pleading before the court on which a verdict could be based. The plaintiff filed a plea, in the nature of a plea of former recovery, alleging that at a former term a verbal demurrer had been made on the first two grounds now urged, and had been overruled ore tenns, that these questions were therefore res adjudicata; that these proceedings had never been reduced to writing, but he offered to show them by parol. The court refused to allow this, and plaintiff excepted pendente lite. The court sustained the demurrer as to the personalty, but held that the allegations as to it might be considered as surplusage, and overruled the other grounds.</p> <p>The jury found for the plaintiff the land in dispute. Defendant moved for a new trial, which was refused, and he excepted.</p>

<p>1. Where an officer making a levy cannot write, an entry thereof written out by another, in his presence and by his procurement, and signed by him with his mark is good.</p> <p>2. The statute of limitations does not run against a fi.fa. while it is-prevented from proceeding by an injunction.</p> <p>3. The requirement that notice of a levy on realty shall be given to the tenant is directory, and failure to give notice does not ipso facto render the levy void.</p>

<p>Where the complainants’ debt was not charged to the trust estate in the ' first instance, but against the trustee as an individual, and no adjudication had been had that the trust estate was liable, and the evidence was very conflicting as to such liability, the appointment of a receiver ad interim, on account of the trustee’s insolvency, was properly refused.</p>

<p>1. If a' deed be declared void for fraud, the grantee holds alone as a trustee for the grantor and his heirs. Therefore, equity will not interfere to make such decree at the instance of a purchaser from one . holding under a voluntary conveyance from such grantor of subsequent date to that sought to be set aside.</p> <p>2. Defendant’s grantor, under the facts stated, has a clear remedy at law.</p>

<p>Principal and agent. Before Judge Fleming. Chat-ham Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

Practice in the Supreme Court. Damages. Negligence. Municipal corporations. Charge of Court. Onus probandi. Before Judge Hillyer. Fulton Superior Court. March Term, 1880. Brown brought case against the city of Atlanta for damages alleged to have been done to his land, lying on the course of the same stream as the city water-works, and below the reservoir, by overflowing the same.

<p>Scire facias. Statute of limitations. Bankruptcy. Judgments. Before Judge Hillyer. Fulton Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

Municipal corporations. Damages. Charge of Court. Roads and bridges. Practice in the Supreme Court. New Trial. Before W. R; Hammond, Esq, Judge pro hac vice. Fulton Superior Court. March Term, 1880.

<p>Where a declaration in a justice court sets out fully a cause of action against a railroad company for damages to personalty, and a summons and copy of the declaration attached thereto and referred to therein, were served on the agent of the road, the action against the company was not fatally defective because the summons was directed to the agent as such, instead of being to the road itself.</p>

<p>Where a tax ft. fa. had been transferred, and levied at the instance of the' transferee, an affidavit of illegality which alleged payment in full to him subsequently to the transfer, was good; nor was it.rendered demurrable by the addition of surplus matter as to the time, place and manner of payment.</p>

<p>Criminal law. Jury. Charge of Court. New Trial. Before Judge MERSHON. Glynn Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

<p>Where a deed was made to secure a debt, which was afterwards sued on and judgment confessed, a deed back to the debtor made and the fi.fa. levied on the land, the defendant could not set up that the deed was void by reason of usury in the debt, the record showing no indication thereof. Nor could the wife of the debtor, who obtained a homestead subsequently to the making of the security deed, plead such usury as against the judgment.</p>

<p>1. If one claiming a right under a written contract does not leave the contract to stand for itself, but introduces parol testimony to explain the meaning of the terms, he cannot complain that the court submits to the jury the question so raised.</p> <p>2. The verdict in this case is not void for uncertainty.</p> <p>3. Under a contract between a municipal corporation and a street railroad company, that "the road, rolling and live stock of said company ” should be exempted from taxation, stables, shops, houses for storage of lumber, and other like conveniences were not exempted.</p> <p>(a.) The word “road ” is not a technical word, requiring explanation by the testimony of experts; nor does it alter the case that the president of the road and another witness interested therein, testified that, at the time the franchise was granted, they understood it to include such appurtenances or conveniences as those stated above.</p>

<p>Criminal law. Practice in the Superior Court. Jury. ■Constitutional law. Charge, of Court. Before Judge CLARK. City Court of Atlanta. June Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add, that the court allowed Schumann and Rauschenberg to testify, over defendant’s objection, as to testing oil bought of him, and the result.</p>

<p>Evidence. Charge of Court. Practice in the Superior Court. New Trial. Before Judge HlLLYER. Fulton Suprior Court. September Term, 1879.</p> <p>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 court admitted the following testimony of a witness, Youngblood, over objection of defendants’ counsel: “ At the time plaintiffs made the offer, witness showed plaintiffs a sample of coffee which was marked “M. 8.” and -told plaintiffs it was cheap at the price, and plaintiffs bought by the sample; and- while I do not recollect to have said so, it was the understanding of the parties that the bulk should be equal and of same quality with sample shown plaintiffs.” (2.) Because the court allowed Youngblood to testify over objection of defendants’ counsel, as follows: That it was his understanding that the characters “M. 8.” referred to the grade, quality and kind of coffee represented by the sample by which he sold the coffee. (3.) Because the court allowed the plaintiffs to testify over objection of defendants’ counsel, that their understanding was similar to that stated by Youngblood in the grounds just above.</p> <p>The other grounds are stated sufficiently in the decision.</p>

Tax. Homestead. Principal and surety. Before Judge Hillyer. Fulton Superior Court. March Term 1880. E. Cahn was one of the surties on the bond of S. R. Hoyle, tax-collector of Fulton county. The comptroller-general issued a fi.fa.cm the bond against Hoyle and his sureties for default of Hoyle. Cahn’s stock of goods were levied on and sold by sheriff for $800.00. After paying costs, $650.00 remains in sheriff’s hands.

Quo warranto. Practice in the Superior Court. Before Judge POTTLE. Wilkes County. At Chambers. September 3., 1880. To the report contained in the decision it is only necessary to add that the following were the grounds of demurrer : 1. Because the said petition is not verified and sworn to as the law requires. 2. Because the said petition is insufficient in law. 3. Because the said plaintiffs have an adequate and complete remedy in ordinary proceedings at law. 4.

Deeds. Wills. Before Judge POTTLE. Madison Superior Court. March Term, 1880. To the report contained in the decision it is only necessary to add the following: Ten’ papers were propounded by Williams et al. for probate as wills. One of them was a will in the usual form ; the other nine were of the form set out in the decision. The one was admitted .to probate, and in it Williams et al. were named as executors ; probate of the other nine was refused.

Evidence. Verdict. Homestead. Partition. Contracts. Judgment. Presumption. Before Judge Mer-SHON. Gljmn Superior Courf. May Term, 1880. The following, in connection with the decision, sufficiently reports this case : Dillon brought ejectment against King for two parcels of land located on St. Simon’s Island.

<p>Where one partner sold his interest in a note, payable to the firm, to the other partner and afterwards died, in a suit by the transferee, the makers were not competent witnesses to show payment to the deceased partnér</p>

Husband and wife. New Trial. Alimony. Before Judge POTTLE. Lincoln Superior Court. October Term, 1880. Mrs. Hawes filed her petition against her husband for alimony, alleging desertion by him, etc. He answered, denying all the principal allegations of -the petition. The evidence showed, in brief, the following facts : The parties were married in 1876, and-lived together for about three years.

<p>Actions. Husband and wife. Damages. Torts. Before Judge Fleming. Chatham Superior Court. December Term, 1879.</p> <p>Reported in the decision.</p>

<p>Amendment. Actions Before Judge LAWSON. Jones Superior Court. April Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The officer serving process ,on a corporation should specify in his return the manner in which service was perfected. Where suit was brought against a corporation and a natural person, a return of service was not good against the former when made in these terms: “ Served each of the defendants personally with a copy of the within summons.”</p> <p>2, In a .justice court suit the constable may serve process on the sheriff of the county. The provision for service upon the sheriff by the coroner, or the sheriff of an adjoining county, only applies to such processes as issue from a court in which the sheriff is the ministerial officer.</p>

<p>A conveyance to a woman for life, with remainder to her children, coupled with a power in her to convey to trustees to hold until her youngest child becomes of age, and then to divide among all the children, with rights of survivorship between them in case some should die without issue; and in the event all should die leaving no issue, then over to certain children of the donor — vests the remainder absolutely-in the children of the tenant for life on the youngest attaining majority, and the death of all or the last one after that event, without issue, will not entitle the donee’s children to the property.</p>

<p>1. For forging an instrument in these terms : “ George, let the boy-have $2.00 worth of what he wants,” an indictment will lie; the other constituents of forgery concurring, the brevity and uncertainty of this instrument will not prevent a conviction.</p> <p>2. Such a paper was not inadmissible in evidence on account of uncertainty.</p> <p>3. It is error for the court to order the arrest of the defendant’s witnesses in the presence of the jury before whom they have just given their testimony, and to have them then and there arrested on account of what they have testified. To do so amounts to an intimation from the bench that their evidence is false.</p>

<p>Criminal law. Indictment. Jurors. Constitutional law. Witness. Evidence. Charge of Court. New Trial. Before Judge Clark. City Court of Atlanta. June Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add, that the court allowed Neal, a witness for the state, to testify, over objection of defendant’s counsel, that he tested the oil sold by the defendant (detailing the manner of his testing) and the result,</p>

<p>To constitute robbery, as distinguished from larceny from the person, there must be force or intimidation in the act; therefore, where a thief slipped his hand into the pocket of a lady and got his finger caught therein, and she felt the hand, and turning, saw him Unconcernedly looking at the houses, and caught him by the coat, which was left with her in making his escape:</p> <p>Held., that the crime is larceny from the person, and not robbery, though the lady’s pocket was torn in extracting his hand.</p>

<p>Ejectment. Title. Prescription. Evidence. Verdict. Practice in the Superior Court. Before Judge MERSHON. Glynn Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

<p>Negligence is peculiarly a question for the jury. While, therefore, in a suit against a railroad by an employ , if negligence on his part is plainly shown, the court may correct an erroneous finding in his favor, or may grant a non-suit where there is no conflict in the evience, yet, where the fact of negligence is doubtful, it should be submitted to the jury.</p>

<p>1. Though a motion to dismiss a counter-affidavit in a distress for rent takes precedence of a motion to dismiss the warrant, yet where the counter-affidavit is sufficient in law to retain the case in court, the plaintiff is not hurt by the failure to hear his motion first.</p> <p>2. A counter-affidavit which, besides setting out facts amounting substantially to a good plea of recoupment, follows the statute and alleges “ that the sum distrained for or some part thereof is not due,” is good, and should not be dismissed.</p> <p>3. A distress warrant based on the affidavit of John Drake in its* recitals, and yet not sworn to by him at all, for the sum claimed to be due, but by his attorney, and that only on the best of the attorney’s knowledge and belief, is bad, and should be dismissed on motion.</p>

<p>Corporations. Parties. Laws. Before Judge FLEMING. Chatham Superior Court. December Term, 1879.</p> <p>Reported in'the decision.</p>

<p>1. The deed of an infant is voidable, not void.</p> <p>(a.) The recital of the payment of one dollar as the consideration of a quit-claim deed is sufficient. That it was not actually paid, does not affect the validity of the conveyance. If not paid, it was recoverable.</p> <p>2. An infant must disaffirm her deed withm a reasonable time after attaining majority, or her right of avoidance will be lost.</p> <p>(a.) What is a reasonable time will depend upon the facts of each case, but will not be longer than seven years after the disability is removed.</p> <p>(3.) Where a minor remainderman conveys his interest in property, he will not be excused from disaffirming his deed within a reasonable time after attaining majority, because the right to bring ejectment for the land has not accrued.</p> <p>3. Where a minor, sixteen years of age, claiming a remainder interest in realty, joined in quit-claiming all interest therein, together with her brother, who was also a remainderman, and'of age, the quitclaim being in general terms indorsed on the back of a deed from the life-tenant, their, mother, and attested by their father, after a lapse of twenty years from her reaching majority, during which valuable improvements were made' on the land by a bona fide purchaser, such claimant in remainder could not recover the land. In such a case, ignorance of what she. had done would be no protection against prescription.</p>

- New Trial, Administrators and executors. Practice in the Supreme Court. Before Judge POTTLE. Hancock Superior Court. April Term, 1880. Gresham, for the use of his minor children, brought his action against Baugh, executor of Peter Baugh, deceased, to recover a remainder interest which his wife was entitled to under the will. She being dead', he sued for the use of his children. On the trial, the evidence showed, in brief, the following facts: The testator died in 1856.

<p>Criminal law. Before Judge ERWIN. Hall Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>Where one voluntarily leaves a safe, convenient and well-lighted sidewalk, and after proceeding several feet therefrom, falls into an excavation, the municipal corporation is not liable therefor; and on such evidence a non-suit will be awarded. Aliter, if the excava- . tion was so near the sidewalk that from the ordinary accidents of travel one would be liable to fall into it while pursuing the ordinarily traveled way. .</p>

Equity. Injunction. Churches. Corporations. Parties. Before Judge Fleming. Chatham Superior Court. June Term, 1880.

<p>The clerk of the superior court is liable for damages sustained by-reason of his failure to perform, or the improper or negligent performance of, the duties required of him.</p> <p>(a.) A declaration alleged that the plaintiffs had had a case pending in the superior court, in which they had filed a bill of exceptions; that the clerk, whose duty it was to certify and send up the record and bill of exceptions, with the intention to defraud them, did not, and would not, make out and transmit such papers in due time; that by reason of this default the case was dismissed; and that if it had not occurred, plaintiffs would have obtained a new trial, and recovered the amount of their claim :</p> <p>Held, that the allegations were sufficient, and a general demurrer thereto was properly overruled.</p> <p>(¿,) That the plaintiffs in error did not compel the clerk by mandamus to send up the record, was not such negligence as would prevent a recovery for the default.</p>

<p>Practice in the Supreme Court. At September Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add, that the signature of the judge to the bill of exceptions bears date June io, 1880, while the clerk’s certificate is dated June 1, 1880.</p>

<p>That a security has paid a part of the amount due on a fi.fa , does not give him the right to control the same so as to reimburse himself. His rights are secondary to those of the holder of the fi.fa., and in order to control it without the consent of the latter, he must comply with the requirements of section 2155 of the Code.</p> <p>(a.) Nor does the fact that a transferree, who had bought property from the principal debtor, has purchased the fi.fa. to protect such property, authorize equitable relief.</p>

<p>Those who enter a court of equity to ask relief must come with clean hands. Therefore, where a wife filed her bill against one who claimed land under a sheriff’s sale thereof as her husband’s property, and from whom she and her husband hadfcince rented, to enjoin him from dispossessing them on the ground that the property was her separate estate; and where the bill and exhibits showed that her claim rested on a voluntary conveyance from her husband, made after the debt under which the sale took place was contracted, for the purpose of defrauding his creditors, an injunction was properly refused.</p>

Evidence. Debtor and creditor. Contracts. Before Judge Clark. City Court of Atlanta. December Term, 1879- Hooper sued Dunlap on an open account. The principal point at issue was whether the goods which formed the basis of the suit should have been charged to the defendant or his father.

Forcible entry and detainer. Title. Actions. Before Judge Lawson. ’Wilkinson County. At Chambers. March 19, 1880. To the report contained in the decision it is only necessary to add that Stuckey brought his action of forcible entry and detainer against Carleton, and on the trial the jury found for defendant. Plaintiff petitioned for a certiorari, which was refused, and he excepted.

<p>Municipal corporations. Constitutional law. Elections. Before Judge FLEMING. Chatham Superior Court. December Term, 1880.</p> <p>Reported in the decision.</p>

<p>A declaration in attachment was filed after the first term and notice given to the defendant. At the next term the attachment was dismissed, but without prejudice to the proceeding on the declaration. On the same day a general judgment was entered against the defendant by default, a fi.fa. issued and was levied:</p> <p>Held, that a judgment could not be taken at that term; one so taken was a nullity, and the levy thereunder Was properly dismissed.</p>

<p>Rule. Justice of the Peace. Judge. Officer. Before Judge MERSHON. Glynn Superior Court. May Term, 1880.</p> <p>Reported'iu the opinion.</p>

<p>Where a testator bequeathed to his wife all of his estate until January ist, 1880, at which time she was to distribute and pay to each child then living, or their heirs, $7,000.00, any previous payment being deducted, and directed that if any of the children should die without leaving any heirs, their share should be divided among the surviving children, it was clearly the intention of the testator to give to each of his childr.en $7,000.00 comingent upon their living to January ist, 1880, when such distribution and payment were to be made, that those who lived and received the legacies should have them absolutely, and that if any did not live to that time and left heirs (probably meaning children), those heirs were to take, but if no heir were left, then the surviving brothers and sisters were to take.</p>

<p>A widow filed her bill alleging that her husband had taken a homestead for herself and child, that after his death his administrator entered on the land, sold the crops, and applied for leave to sell the land; that he was insolvent; she prayed for an accounting for the property sold-, for injunction to restrain him, and for a receiver. It appeared on the hearing that the homestead, the year’s support and dower were áll in dispute :</p> <p>Held, that there was no error in granting an injunction, with leave to amend the bill so as to settle all the questions arising out of the homestead, the dower, and the year’s support. 60 Ga., 525.</p>

<p>1. That a claim has been filed to personalty levied on under a mortgage fi. fa., and the property found subject, does not prevent the claimant’s filing an affidavit of illegality to the execution, presenting issues other than those passed upon in the claim case, she being also defendant in Ji.fa.</p> <p>2. The affidavit, which is the basis of the foreclosure of a chattel mortgage, must disclose that the defendant resides within the county where the foreclosure is had.</p>

<p>i. One may claim property levied upon by himself, his agent or attorney. Where there are partners or persons jointly interested, any one may make the affidavit and execute the bond on behalf of all, but the character in which these rights are exercised, and this liability assumed, should appear in conformity to the facts.</p> <p>■ 2. In all suits by partners or persons jointly interested, where the name of any one who ought to have been joined is omitted, it may be inserted instanter on motion. But a suit brought by one in his individual name cannot be changed into a suit in the name of a partnership.</p> <p>(a) A claim affidavit is the foundation of a legal proceeding, and cannot be amended, there being no express provision authorizing the same.</p>

<p>Certiorari. Before Judge McCutchen. -Whitfield Superior Court. April Term,'1880.</p> <p>Reported in the decision,</p>

<p> Clerk Superior Court McIntosh Cotcnty, Ga.” </p>

The jury established the trust as to a part only of the property, and found that some of the debts represented by the defendants were entitled to go against the trust estate, because based upon considerations which went for the use of the beneficiaries, The chancellor framed an elaborate decree unnecessary here to be set forth.

Railroads. Damages. Negligence. Evidence. Charge •of Court. Master and servant. New Trial. Before Judge Clark. City Court of Atlanta. June Term, 1880. Johnson sued the Atlanta and West Point Railroad Company for a personal injury.

<p>Parties. Practice in the Superior Court. Ejectment. Administrators and executors. Before Judge Fleming. Chatham Superior Court. December Term, 1880.</p> <p>Reported in the decision.</p>

<p>A motion for new trial must be made during the term when the decision complained of was rendered, and a brief of the evidence must be filed under the revision and approval of the court. If, instead of pursuing the course prescribed by strict law, a party enters into a consent order for the brief of evidence to be filed within a specified time, and to argue the motion in vacation, time is of the essence of the contract, and the movant must abide by his bargain. Where the order passed in term time provided for the filing-of a brief of evidence within sixty days thereafter, and the brief though filed within the time, was never agreed upon, nor was presented to the court for approval until several months after the prescribed time had elapsed, the judgment of the court dismissing the motion on that ground will not be reversed.</p>

<p>r. The verdict in this case is not supported by the evidence.</p> <p>2. Charges which are not founded on the evidence should not be given.</p> <p>3. It was error for the court to charge that the issue was mainly one of law, when in truth the issues of fact were such as to control the case. c</p>

<p>1. If after a note fell due, the maker removed from the state to reside in another state, the statute of limitations did not run in his favor during his absence.</p> <p>2. Where attachment on a note was sued out against one who had removed from the state before the bar of the statute attached, and the defendant pleaded the statute of limitations, the proceeding became a suit as in case of personal service, and a general judgment against the defendant could bé rendered.</p>

Administrators and executors. Evidence. Contracts. Before Judge UNDERWOOD. Polk Superior Court. August Term, 1880. 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) .

<p>Administrators and executors. Wills. Legacies. Before Judge Snead. Burke Superior Court. May Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add the following: This was a contest between Jones and Mrs. Whitehead, her husband joining with her, over the grant of administration upon the estate of J. W. Jones, deceased. On the facts stated in the decision, the ordinary found that Jones was entitled to administer. On appeal the jury found that Mrs. Whitehead was beneficially interested under the will of James W. Jones and entitled to administer. Jones moved for a new trial, which was refused, and he excepted.</p>

<p>A fi. fa. having been levied on certain land, and a claim interposed, and a second fi. fa. having been levied on the same property, the holder of the first fi.fa. is not entitled to an injunction to stay the proceeding of the second, on the ground that, if sold pending the claim case, the property will be under a cloud and will not bring its value, that he is unable from poverty to bid on it, and that the purchaser will obtain a good title, leaving a nominal amount in the hands of the sheriff in lieu thereof, for him to have applied to his fi.fa. ■</p>

<p>1. A motion to set aside and vacate a judgment and reinstate a case cannot be determined by any fixed rule, but depends upon the circumstances of the case.</p> <p>2. In the present case the judge presiding did right to overrule the motion.</p> <p>(a) Where it was proposed to set aside a judgment by default and reinstate the case that defendant might plead to the merits, and it appeared that substantially the same matters proposed to be pleaded had been determined against the defendant in a former litigation, the motion was properly overruled.</p> <p>(b) Where a contract was made to loan money, take a deed to land as security, and give bond to reconvey on payment of the debt, and the money was loaned and the deed taken, but by inadvertence it was not signed by the debtor, a bill for specific performance would lie.</p>

<p>Receivers. Practice in the Superior Court. Before Judge HlLLYER. DeKalb county. At Chambers. July 26th, 1880.</p> <p>Reported in the decision.</p>

<p>Municipal corporation. Damages. Negligence. Before Judge FLEMING. Chatham Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. Where an indictment alleged that the defendants on a certain day, in the peace of the state then and there being, with certain pistols and shot-guns charged with powder and leaden shot, did then and there feloniously, wilfully and of their malice aforethought kill and murder the said Turner alias Awtrey, all of which was contrary to the laws of said state, the peace, good order and dignity thereof, such indictment was sufficient, though it did not allege that the killing-was unlawful.</p> <p>2. Although after an injury is done there is no principle of law which will justify an act of individual satisfaction or vengeance, yet where the line of defense to an indictment for murder was that a continuous feud had existed between the deceased and the defendant, that the latter had sought the protection of the law, but its operation had been avoided by the flight of deceased, and that he had returned, and by threats and otherwise had kept defendant in continual fear for his life, all of the facts connected with such feud, including its origin, were admissible, in order that the jury might . fully understand the case.</p> <p>3. The record of the trial and conviction of a principal in the first degree is conclusive evidence of his conviction and prima facie evidence of his guilt on the trial of a principal in’the second degree, and the onus is on the defendant to show that the principal in the first degree should not have been convicted. But defendants indicted as principals in the first degree, where they sever, have no presumption against them by reason of the fact that two may have been convicted before the third is put upon his trial.</p> <p>4. Good character may be of use in doubtful cases, but when the evidence is clear it can be of no avail.</p> <p>5. While the court may so far restrain the prisoner’s statement as to prevent his occupying the time of the court and' jury with long, rambling and irrelevant matter, yet as to all matters connected with the case the prisoner may make such statement as he may think proper, and he should not be restricted to stating such facts as would be admissible in evidence.</p>

Wills. Deeds. Jurisdiction. Evidence. Before Judge Fleming. Effingham Superior Court; November Term, 1880. Balster et al. brought ejectment against Sperber et al. The case was dismissed as to the others, and proceeded against Sperber alone. Plaintiffs claimed as heirs at law of Kohler, deceased; defendant claimed under the following instrument: State of Georgia — Effingham County.

Mortgage. Jurisdiction. Lost Papers. Before Judge Mershon. Ware Superior Court. October Term, 1880. A mortgage ft. fa. in favor of Littlefield & Bro., against Buchanan & Knowles, was levied on a certain steam sawmill, which was claimed by Clary. The original mortgage and note were lost, and copies were established before the ordinary by the summary proceeding provided by the act of 1876.

<p>Judgments. Homestead. Statute of Limitations. Mi•nors. Administrators and executors. Before Judge Lawson. Greene Superior Court. September Term, .1880.</p> <p>An execution in favor of Susan E. Merritt et al., against James Merritt, executor of Thomas Merritt, was levied upon four hundred acres of land, as the property of James Merritt. Sarah Merritt, both for herself and as next friend of her minor children, interposed a claim to said four hundred ácres of land. The ft. fa. was as follows:</p> <p>•“ Georgia — Greene County.</p> <p>“To all and singular the sheriffs of said state, greeting: James 'Merritt, of said county and state, being the executor of Thomas Merritt, •late of Greene county, deceased, said administration being in Greene -county, was required by the ordinary of said county, at the citation of Susan E. Merritt et al. (said Susan E. Merritt et al. being the heirs at law of said Thomas Merritt) to appear and submit to a settlement of his accounts, and such citation was duly served and made returnable to the December term, 1878, of this court, according to the statute in such case made and provided, and regularly continued to an adjourned court, held on Monday, December 9th, 1878. The said ordinary of said county, at the said adjourned court, held on the 9th day of December, 1878, examined all the returns and accounts of said executor as to the said Susan E. Merritt et al., and made a full, fair •and final settlement for said Susan E. Merritt et al., finding in said settlement that one thousand and fifty-five and ia0% dollars ($1,055.98) was the amount due by said James Merritt, executor as aforesaid, to the said Susan E. Merritt et al., and the court thereupon ordered and •adjudged that said James Merritt pay the said Susan E. Merritt etal. said sum. We therefore command you that of the goods and chattels, ■lands and tenements of the estate of said Thomas Merritt, in the hands of said executor to be administered, if to be found, and if not to be found, then of the goods and chattels, lands and tenements of ■said defendant, held in his own right, you cause to be made the sum of one thousand and fifty-five -,9^- dollars, principal debt, which the said Susan E. Merritt et al. recovered as above stated, and interest thereon from the 9th day of December, 1878, and that you have the said several sums of money before the said court of ordinary on the first Monday in October next, to render to the said Susan E. Merritt et al. And have you then and there this writ. Witness, Joel F. Thornton, ordinary of said county, this July 28th, 1879.</p> <p>Joel F. Thornton, Ordinary.”</p> <p>By amendment, the following equitable claim was made:</p> <p>“And now comes the claimant, Sarah Merritt,'both for herself and as next friend of her minor children, to-wit: Annie M. Merritt, Elizabeth Merritt, James T. Merritt, ■Gordon L. Merritt, Odie B. Merritt, and Esse P. Merritt, and amends the claim interposed by her in said case to .said four hundred acres of land, and says that said four hundred acres of land was, on the 19th day of December, in the year eighteen hundred and sixty-, ight, set apart as a homestead for the use of this claimant and her said minor children, in conformity with the law then of force in such case made and provided. And the claimant says that the ft. fa. or execution levied upon said land was issued upon a judgment rendered by the ordinary of said county on the ninth day of December, in the year eighteen hundred and seventy-eight, in favor of the said plaintiffs against the said James Merritt, as executor of Thomas Merritt, and claimant says that she was not a party to said judgment, neither were her minor children parties to said judgment; and neither did she or her said minor children have any notice whatever of the rendition of said judgment until fi. fa. or execution had been issued upon the same and levied.upon said land.' And claimant further says that on the fifth day of May, in the year eighteen hundred and fifty-four, the said Thomas Merritt made and executed his last will and testament, appointing therein as his executors two of his sons, viz: Benjamin Merritt and the said James Merritt, and which said will was admitted to probate in the court of ordinary of Greene county, Georgia, on the sixth day of February, in the year eighteen hundred and sixty, and the same year, to-wit, on the twenty-seventh day of December, in the year eighteen hundred and sixty, the legatees of the said Thomas Merritt under said will entered into a written agreement setting aside said will, and requesting the said James Meriitt to distribute equally among the heirs at law of said Thomas Merritt the property in his hands, as executor in the state of Georgia, according to the statute of distribution of force in said state, without any regard to .said last will and testament; and it was also, stipulated in said agreement that the said Benjamin Merritt, who had qualified as one of the executors of said will, should continue his executorship in the state of Ala-' bama, so far as might be necessary to close up said estate there, a large portion of the pro.perty of the estate of said Thomas Merritt being in the state of Alabama.</p> <p>“And claimant further says, that by the sixth item of the said will one hundred acres of land and five hundred dollars in cash were given for the benefit of the children of John Merritt, to be in the hands of said Benjamin Merritt as trustee, the said John Merritt being a son of the testator, Thomas Merritt.</p> <p>“ And claimant further says, that the one hundred acres of land specified in the sixth item of said will was sold, conveyed and disposed of by the said Thomas Merritt some years previous to his death, and constituted no part of his estate at the time of his death, so that the five hundred dollars was all the property that was left in trust for the children of the said John Merritt.</p> <p>“And claimant further says, that while the said John Merritt, a son of the testator, Thomas Merritt, was excluded from all benefit and participation in the estate of his father under said will, yet, under the said agreement ■entered into by the legatees under said will, the said John Merritt and his children received, with his brothers and sisters, an equal share or portion of the property of his father, amounting, as claimant is informed and believes, to about eight thousand dollars, or other large sum ; and of the property received 'by the said John Merritt and his ■children under said agreement there was included two hundred acres of land in said county of Greene, and upon said land the said John Merritt and his children have lived ever since they received the same under said agreement, and his said children have been maintained and provided for out of said property, and the proceeds arising from the possession, use and enjoyment of said two hundred acres ■of land, and have received, up to the present time, a great ■deal more property from the estate of the said Thomas Merritt than the five hundred dollars given for their benefit in the sixth item of said will, and all of the children of the said John Merritt, with the exception of one or two,being now over the age of twenty-one years, and the one -or two exceptions being very near the age of twenty-one years.</p> <p>“ And claimant further says, that in justice and equity there is nothing more due the children of the said John Merritt, the plaintiffs in said fi. fa., from the estate of the said Thomas Merritt, they having already received as-much if not more than any child or legatee, from the estate of the said Thomas Merritt, and certainly a great deal more than the legacy given for their benefit in the said will.</p> <p>“ And claimant further says, that If the children of the said John Merritt, the plaintiffs in said fi.fa., are still entitled to the five hundred dollars in cash, with interest on the same, in addition to what they have already received from the estate of the said Thomas Merritt, they should look to the said Benjamin Merritt, one of the executors off said will, and their trustee, who received into his possession, either as executor or as their trustee, a large amount of the property belonging to the estate of the said Thomas. Merritt, in addition to his distributive share as heir at law of the said Thomas Merritt, or as legatee under said will, certainly a great deal more besides his distributive share than the legacy given him in trust for the benefit of’ said children.</p> <p>“And claimant further says, that the said fi. fa. in favor of the said plaintiffs was issued upon a judgment rendered by the ordinary of said county of Greene, to compel, the-said James Merritt to pay to the said plaintiffs in fi.fa. the said five hundred dollars with interest on the same, notwithstanding the said plaintiffs in fi.fa. have, under the said agreement of said legatees, had the use, benefit and enjoyment of a much greater amount of property from, the estate of the said Thomas Merritt than was given for their benefit in said will, and, notwithstanding said will was by the said agreement of said legatees set aside for ■the benefit of said .plaintiffs in fi.fa., and that, notwithstanding also, the said James Merritt has acted in perfect good faith under said agreement from the first to, the last.</p> <p>“ And claimant further says, that the four hundred acres of land, now levied upon by virtue of the fi. fa. in favor of the said plaintiffs, and claimed by her for herself and her minor children, never did constitute any portion,of the; ■ estate of the said Thomas Merritt, but that the same was set apart as a homestead for this claimant and her said minor children, to-wit: Annie M. Merritt, now aged sixteen years; Elizabeth Merritt, now aged thirteen years -r James T. Merritt, now aged ten years ; Gordon L.Merritt, aged eight years; Odie B. Merritt, aged five years, and Essie P. Merritt, aged two years, out of the property of James Merritt, the husband of claimant and the father of her said minor children, and that the same has vested in this claimant and her said minor children for their use and benefit, according to the constitution and laws of said state. And claimant further says that said four hundred acres of land were set apart as a homestead for her and her said minor children ten years before any complaint was made, or any claim preferred, or any judgment rendered, against the said James Merritt in favor of the said plaintiffs in fi. fa.; and claimant further says that the said agreement of said legatees has been acquiesced in by the said plaintiffs va.fi. fa., as well as their trustee, the said Benjamin Merritt, for a period of more than eighteen years. And claimant further says that if the said James Merritt incurred any legal'liability to the plaintiffs in fi.fa. in consequence of having observed and carried out, in good faith, the said agreement of said legatees, it was the duty of the said plaintiffs in fi. fa., or their trustee, the said Benjamin Merritt, to have instituted suit or have commenced legal proceedings within the time prescribed by law against the said James Merritt, and not to have silently acquiesced in said agreement for the period of eighteen years, and have availed themselves, during all of said time, of all the benefits and advantages resulting to them from said agreement, which was of much greater benefit and value to them than the legacy given for their benefit in said will. And claimant further says that if the said plaintiffs in fi. fa. have any claim or demand against the said James Merritt on account of his connection with the estate of the said Thomas Merritt, or in consequence of his having carried out, in good faith, the said agreement of said legatees, that the said claim or demand now is and was, before the commencement of any legal, proceedings by the said plaintiffs in ji.fa. against the said James Merritt, barred by the statute of limitations in such case made and provided.</p> <p>“And claimant further says, that the said James Merritt is insolvent, and that inasmuch as the said James Merritt is utterly unable to respond to claimant and her said minor ■children for any damage which they may sustain in consequence of the rendition of the said judgment, upon which thé ft. fa. of the said plaintiffs issued, and that, inasmuch •as the claimant and her minor children were neither parties to, nor had any notice whatever of, the rendition of said judgment, that said judgment is null and void as to claimant and her said minor children, and has no lien whatever ■upon said four hundred acres of land, which has been set .apart as a homestead as aforesaid, and which has vested in claimant and her said minor children for their use and benefit. And for the reasons herein stated, as well as for divers other good and valid reasons, claimant says that said land is not subject, and cannot, either in law or equity, be made subject to the ft. fa. of the said plaintiffs, and of all of which this claimant, both for herself and as next friend of her said minor children, puts herself upon the country. And claimant further says that said ft. fa. and the judgment and proceedings upon which the same was issued, are illegal upon their face.”</p> <p>The agreement of the legatees of Thomas Merritt, Sr., deceased, was as follows:</p> <p>“ Georgia — Greene County.</p> <p>“ This agreement, made and entered into this, the 27th day of December, in the year of our Lord, i860, amongst the undersigned legatees under the last will and testament of Thomas Merritt, late of said county, deceased, bearing date the 4th day of May, 1854, witnesseth that the said legatees do hereby consent and agree that James Merritt, the qualified executor of said last will and testament, in the state of Georgia, shall proceed at once to administer the estate of said-Thomas Merritt, Sr., from this time forth according to the statute of distributions of force in said state of Georgia, and that all the property of said deceased be distributed equally among the heirs at law of said Thomas Merritt, in pursuance of said statute of distributions, without any regard to said last will and testament. And it is further agreed that the said last will and testament be set aside so far as the division of said property and the administration of said estate is concerned, only continuing the powers and authority of said executor, so far as may be necessary to carry out this agreement and to wind up said estate. And we hereby bind ourselves, our heirs, executors and administrators, severally to each other and to the said executors as aforesaid, in the penal sum of fifteen thousand dollars, to stand to and abide by this agreement, and for a breach of the same, by any or either of us, either one of the others may sue for and recover the above penal sum of the one committing said breach, in any court having jurisdiction of the same...........It is further understood and agreed that Benjamin Merritt continue his executorship in the state of Alabama, so far as may be necessary to close up said estate there.”</p> <p>On motion the court struck this equitable claim, and a verdict was rendered finding the property subject. Claimant moved for a new trial, which was refused, and she excepted. j</p>

<p>Mortgage. Statute of Limitations. New Promise. Contracts. Pleadings. Before Judge MERSHON. Wayne Superior Court. September Term, 1880.</p> <p>Reported in the decision.</p>

<p>Jurisdiction. Ordinary. Habeas Corpus. Before Judge MERSHON. Wayne Superior Court. September Term, 1880.</p> <p>Reported in the decision.</p>

Contracts. Státute of frauds. Non-suit. Before Judge HlLLYER. Fulton Superior Court. October Term, 1880. Smith sued Jones. He alleged that defendant had bought a lot from him in Cuthbert, Georgia, and owed him a balance on the purchase money. Among other pleas; the defendant pleaded that she had never entered into any written contract for the purchase of the lot.

<p>Criminal Law. Continuance. Charge of Court. Practice in the Superior Court. Before Judge Lawson. Morgan County. At Chambers. September 22d, 1880.</p> <p>Reported in the decision.</p>

<p>To warrant a conviction based on the testimony of an accomplice the corroborating circumstances should be such as, independently of his testimony, to lead to the inference that the defendant is guilty. Facts which merely cast on the defendant a grave suspicion of guilt are not sufficient.</p>

<p>That the justice who issued a garnishment told the garnishee that he had until the next term of court to answer, and thereby the garnishee was misled and failed to answer within ten days, did not excuse such failure or prevent a judgment against him, this case having arisen prior to the act of 1880.</p>

<p>Taxes. Executions. Registration. Liens. Before Judge CRISP. Lee Superior Court. November Term, 1880.</p> <p>Reported in the decision.</p>

<p>A “fast” bill of exceptions to the refusal of an injunction must be certified within twenty days from the rendering of the decision. If not so certified, the defect cannot be cured by a certificate of the chancellor that he was absent from home until the day of the signing, nor by a waiver of time by counsel.</p>

<p>1. By the second item of a testator’s will he bequeathed his property of every kind to his wife and children share and share alike, providing that the portion which fell to his daughter should vest in her for her sole and separate use, and that the share of his wife should vest in her for life with remainder to his children. By the third item, testator provided that his estate should be kept together during the life or widowhood of his wife, or until some one or more of his children should marry, and upon the death of the wife, the property should be equally divided between his four children, or the representatives of such as might be dead ; that if his wife should marry, she should draw her portion of the estate to be used by her for life, with remainder to the children ; that if a child should marry, he should draw his portion out of the estate, and the balance be kept together as before; that when his daughter should marry, her portion should vest in trustees for her separate use; and that “ in the event any of my (testator’s) children should die without issue living, or if leaving issue such issue should die under twenty-one vears of age, then the portion of such child or children shall be equally divided among my surviving children</p> <p>Held, That the limitation over related to the period before the shares should be distributed and go into the possession of the children. A child who survived the wife, and received his distributive share, took it absolutely and not encumbered by any limitation over.</p> <p>2. Under such a will as that above stated, the widow chose to take dower; the general legatees desiring a division before the death of the widow, agreed that the executors should sell the property and pass good titles to the purchasers thereof, and the proceeds should stand in the place of the land for distribution ; this was done, and the legatees receipted in full to the managing executor for their shares and released him from all further claims :</p> <p>Held, That the shares received under such agreed division vested absolutely, and without limitation over upon dying without issue.</p>

Practice in the Superior Court. Interrogatories. Evidence. Promissory notes. Indorsement. Before Judge UNDERWOOD. Floyd Superior Court. September Adjourned Term, 1880.

<p>1. Under the act of congress of 1866, omitting the case of aliens, the following conditions are necessary to a removal of a cause from the state to the federal courts: The suit in the state court must Be by a plaintiff who is a citizen of the state in which the suit is brought; it must be against a citizen of the same state and of another state as defendants ; the amount in dispute must exceed $500.00, besides costs; the removal must be applied for before the trial or final hearing of the cause in the state court. These elements concurring, the non-resident defendant — not the resident defendant — may have the cause removed, not wholly, but only so far as relates to himself, provided, also, it is a suit brought for the purpose of restraining or enjoining him, or is a suit in which there can be a final determination of the controversy so far as it concerns him without the presence of the other defendants as parties to the cause.</p> <p>2. Under the “ local prejudice” act of 1867 the following conditions are necessary to the exercise of the right of removal: That the controversy shall be bet jveen a citizen of the state in which the suit is brought and a citizen of another state; that the matter in dispute shall exceed the sum of $500.00, exclusive of costs ; that the party who is citizen of such other state, shall file the required affidavit stating the “local prejudice,” etc.; that the requisite security for appearing in the federal court shall be given.</p> <p>3. Other removal acts discussed.</p> <p>4. The application in this case was made both under the act of 1866 and of 1867, and met the requirements of those acts.</p> <p>5. If the right of remuval has once become perfect, it cannot be taken away by any subsequent amendment by the opposite party in state or federal court.</p>

<p>Equity. Amendments. Parties. Practice in Superior Court. Practice in Supreme Court. Before Judge Pate. Washington Superior Court. May Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The finding of the presiding judge passing upon this case, by consent, without a jury, was not contrary to law or the evidence.</p> <p>2. The municipal authorities of the city of Macon had power to allow encroachments on the streets.</p> <p>(a) The power to allow a portion of a street to be encroached upon and fenced in would carry with it the power to allow improvements to be placed thereon.</p> <p>■(b) One beneficiary of an ordinance allowing certain encroachments on a street is estopped from denying its validity as against the municipal authorities and another beneficiary.</p>

<p>New Trial. Before Judge CRISP. Lee Superior Court. March Tertn, 1879.</p> <p>Reported in the decision.</p>

<p>Sales. Trover-. Title. Vendor and purchaser. Debtor and creditor. Banks. New Trial. Before Judge Speer. Bibb Superior Court. October Term, 1879.</p> <p>Reported in the decision.</p>

<p>Title. Usury. Liens. Judgments. Estoppel. Before Judge Crisp. Sumter Superior Court. October Adjourned Term, 1878.</p> <p>Reported in the decision.</p>

<p>Practice in the Superior Court, Contracts. Officers. Attorney and client. Before Judge Clark. Fulton Superior Court. March Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. Where execution was issued by the governor of the state, and levied upon the property of the citizen by the sheriff of Washington county, and the legality of the process was attacked by bill for injunction filed against the sheriff, upon the ground that it was founded upon no valid constitutional law, the governor was neither a proper nor necessary party defendant thereto. The demurrer being filed for the sheriff by the attorney-general in his official capacity,' the governor was represented in the litigation, for all practical purposes, by his legal adviser.</p> <p>2. The relief prayed against the sheriff was substantial, and as he resided in the county of Washington, and the property levied on was located there, the superior court of that county had jurisdiction of the case.</p> <p>3. The provision in the last section of the act of 1876, “ to define the obligations pertaining to the office of treasurer,” which allows to that officer and his sureties only those defenses as against executions issued under that act, now allowed tax collectors against fijas issued by the comptroller-general against them, does not refer by the use of the term “those defenses ” to the appeal to the governor provided for in §912 of the Code, but to those which the courts had theretofore allowed tax collectors and tax-payers to make under the prohibition of judicial interference. Illustrative of exceptions to such prohibition may be stated'the following :</p> <p>(a.) An unconstitutional exaction, because what is then called a tax is no tax.</p> <p>(A) Where the law does not impose the tax or authorize the execution, for the same reason.</p> <p>(e.) Where the defendants did not occupy the official positions alleged1 in the execution.</p> <p>4. The bond of 1876 was never executed by the treasurer nor accepted by the governor, and though signed by the sureties, has no validity either as a statutory or common law bond. The act of 1876 did not contemplate a summary execution to issue upon such an unexecuted paper, and to arrest such process the judiciary of the state must intervene.</p> <p>5. The bond of 1877 was not executed within forty days from the election of the treasurer, .was not recorded within the time prescribed by law in the office of the seer etary of state, the sureties did not justify, nor was any affidavit of the sureties as to what they were worth attached to the bond and recorded therewith ; therefore it cannot be said to be a statutory bond taken in accordance with the act of 1^76, and the statutes in pari materia.</p> <p>6. The meaning of §167 of the Codeis to be gathered from the earlier decisions of this court, whence the codifiers drew it. These decisions ruled that official bonds were valid as common law bonds, though not executed in strict accordance with the statute, but that a recovery for the benefit of one person aggrieved, exhausted such instrument, and others were remediless. This’section was to correct that evil, and gave remedies to all suitors successively until the penalty was exhausted. This summary remedy against the treasurer was not in the contemplation of that section, for it is the creation of the act of 1876, enacted long afterwards.</p> <p>7. Whilst each surety, under the terms of the bond of 1877, was bound for a definite amount, yet each was nevertheless entitled to^ contribution from every other, and unless estopped by his own conduct, might, under the Act of 1876, claim his discharge from liability because the others had not been sworn as to their capacity to respond. The re uirement of the oath is not merely directory, but is of consequence primarily to the state, and secondarily to the sureties.</p> <p>(a.) Possibly, a surety who did not himself qualify, and who signed with the knowledge that-the others had not done so, would be estopped from setting up this defense, especially as it is recited in the bond that an oath was taken, though the oath itself is not attached as required by the statute.</p> <p>8. The joint resolution of October 16th, 1879, under which the executions sought to be enjoined were issued, fixing the amount of the supposed liability of the treasurer and his securities, and requiring the governor to issue such process, for the amounts so fixed, is contrary to the provision of the constitution of 1868 and of 1877, which directs that, “ No general law affecting private rights shall be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby.” It appearing upon the face of the executions that they were issued under such resolution, it would seem that equity -ought 'to interfere. If suspension of the executions by the governor and appeal to the legislature is the only redress of the treasurer and his sureties, the appellate power has taken the initiative and prejudged the case it was to try.</p>

<p>Railroads. Damages. Negligence. Contracts. Before Judge Clark. City Court of Atlanta. June Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. It is no ground to suppress interrogatories executed in Delaware that the witness did not exhibit to the commissioners, as requested, books of account which he testified were in Mississippi.</p> <p>(a) A witness cannot be required to attach to interrogatories a merchant’s books of account, A transcript should be asked for.</p> <p>2. Where, on objection by defendant’s counsel to certain interrogatories, a part was ruled out and a part ruled in, and subsequently counsel for defendant introduced those parts which had previously been ruled out, the ruling of the court is not a ground for new trial) on behalf of the defendant.</p> <p>3. Although a merchant may have entered on his books the amount of an inventory of his stock at a specified time, yet if he testifies positively to the correctness of a statement containing such amount> made up by himself and his clerk, and attached to the interrogatories, and the books are beyond the jurisdiction of the court and inaccessible to the witness, his testimony is admissible.</p> <p>4. Where a certificate purporting to have been signed by a justice of the peace was attached to interrogatories for identification, and the witness testified that “the certificate was in the handwriting of Stockdale, attorney, and Bacot, justice of the peace,” it might reasonably be inferred that the witness meant that Stockdale wrote and Bacot signed the certificate ; and it was admissible.</p> <p>(a) In a suit on an insurance policy, one issue raised by the defendant being that it was a badge of fraud that the insured did not furnish from the nearest magistrate a certificate concerning his loss, but furnished certificates of other magistrates near by, a certificate actually made and furnished from the nearest magistrate, to the effect that he had examined into the loss and believed it bona fide a total loss of a good stock of goods, but had not had time to examine as to the exact amount of the loss, was admissible, although such a certificate did not fully meet the requirements of the policy in failing to state such amount.</p> <p>5. Refusal to give a request in charge will not necessitate a new trial where the request was substantially covered by the charge as given.</p> <p>6. Requests not applicable to the case should not be given.</p> <p>7. The charge complained of in the sixth ground of the motion for new trial was not unsupported by evidence.</p> <p>8. A common agent of the insurer and the insured could not cancel the policy, but would be competent to convey from the former to the latter passingly notice of demand for cancellation. But to effect a cancellation before the payment of the premium, the notice, in the shape in which it reached the insured, must have been an unconditional demand for cancellation, and not a mere expression of desire.</p> <p>•9. Although a section of a charge, taken alone, may seem objectionable, yet if, when construed in connection with its context, it is proper, a new trial will not be granted on that account.</p>

<p>Corporations. Joint stock companies. Judgments. Illegality. Before Judge Erwin. Habersham Superior-Court. October Term, 1880.</p> <p>Reported in the decision.</p>

<p>Tenants. Estates. Remainder. Statute of limitations. Before Judge POTTLE. Richmond Superior Court. October Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

Administrators and executors. Amendments. Husband and wife. Set-off. New trial. Before Judge Longley. Carroll Superior Court. October Term, 1880. To the report contained in the decision, it-is only necessary to add, that the following were among the grounds of the motion for a new trial: (1) . Because the verdict was contrary to law and the evidence. (2) .

Ejectment. Administrators and Executors. Estates. Minors. Practice in the Superior -Court. Before Judge LESTER. Lumpkin Superior Court. April Term, 1880.

<p>1. Where an absolute deed was made and possession delivered thereunder, a subsequent suit by the feoffor against the feoffee on the ground that the deed was in fact a security for a debt, made so that the creditor could sell the land, reimburse himself, and pay the balance to the debtor, and that he had failed so to do, but had rented the land and afterwards sold it, but never paid the debtor anything, was demurrable, no fraud, accident or mistake being alleged as to the making of the deed.</p> <p>2. An amendment to such a declaration to the effect that the plaintiff authorized the defendant to sell the land, settle the outstanding debt, and turn over the balance to him, that the defendant had sold the land, realizing $400.00 above the amount due on the notes, which he failed to pay over, introduced a new and distinct cause of action, and was demurrable.</p>

Railroads. Damages. Negligence. Contracts. Common Carriers. Before Judge Snead. Richmond Superior Court. October Term, 1880.

<p>1. Where a rule absolute has been obtained against a sheriff, and suit is brought on his bond upon failure to pay over the amount, the sureties can set up any defense to the action which the sheriff could have urged to the rule.</p> <p>(a) As the sheriff could not have attacked the validity of the process under which he collected money in his hands, neither can his sureties do so.</p> <p>2. Where error is assigned on the rejection of documentary evidence, it should be set out in the bill of exceptions, if the case is brought up without a motion for new trial, in order that this court may judge of its admissibility.</p> <p>(a) From what has been set forth before this court, we cannot say that the execution under which the sheriff acted was invalid.</p>

<p>Equity. Trusts. Sales. Fraud. Before Judge SIMMONS. Houston Superior Court. May Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>In an action by a widow for the homicide ,of her husband, it was error to instruct the jury as matter of law that they should add interest to -whatever amount of damages they might find at the date of the homicide. The question of increasing damages in such a case was for the jury.</p>

<p>Pilots are not public officers or civil officers so as to be subject to writs of q^lo warranto. Their licenses, as well as the requisites to obtain them, are but safeguards for the protection of the marine commerce of the state, and are similar to other licenses.</p>

<p>Landlord and tenant. Damages. Negligence. Before Judge Harden. City Court of Savannah. July Term, 1880.</p> <p>Reported in the decision.</p>

Criminal law. Continuance. Evidence. Witness. Practice in the Superior Court. Indictment. Jurors. Before Judge Hillyer. Clayton Superior Court. September Adjourned Term, 1880. Betts was indicted for the murder of H„ J. Moore. Upon the call of the case he moved for a continuance, which was refused.

<p>1. The court is the constitutional organ to give in charge to the jury the law in criminal cases, and it is the duty of the jury to receive and accept the law as given them in charge by the court as applicable to the case, and to apply the law so given in charge to the facts, and give a general verdict of guilty or not guilty. In this 'sense they are judges of the law and facts.</p> <p>2. The verdict is supported by the evidence.</p>

<p>Haines and Mitchell -filed their bill against Clary & Whaley, the sheriff of Wayne county, and a constable, alleging that certain executions in favor of Clary & Whaley were proceeding against them and their property illegally, were void upon numerous grounds, that they had tendered affidavits of illegality to the sheriff, who had refused to receive the same ; praying injunction, and that the fi. fas be called in to be cancelled. The sheriff and Clary.& Whaley acknowledged service. The constable-was never served. Clary & Whaley answered at length for themselves, but the sheriff made no defense. Distinct issues of fact were submitted to the jury, and on their finding, the chancellor rendered a decree in favor of Clary & Whaley that the executions do proceed. A motion for new trial was made, rule nisi issued, and the motion overruled. In all of these proceedings the case was stated as that of Haines and Mitchell vs. Clary & Whaley. To the refusal of the new trial movants excepted, and Clary & Whaley-acknowledged service on the bill of exceptions. The sheriff, though stated therein as a party .defendant in error, was not served therewith.</p>

<p>1. Where several pleas are filed by a defendant, a verdict in his favor ' should show upon which of the pleas it was rendered; and a general verdict having been returned for the defendant, upon objection by plaintiff’s counsel, the jury should be required to retire and return a verdict specifying upon what plea or pleas it was based.</p> <p>2. This court will not grant a new trial on account of a failure to give-a request not properly made.</p> <p>(a) In a suit for slander for words imputing a crime, to support a plea, of justification, the same degree of evidence is required as would be necessary to convict the plaintiff on a criminal prosecution for-the offense.</p>

Equity. Title. Taxes. Before Judge Snead. Richmond Superior Court. October Term, 1880. Plaintiffs in error brought their bill to the October term, 1878, of Richmond superior court, against Barrett & Caswell, and Charles H. Sibley, as sheriff, alleging that it was a Massachusetts corporation.

Statute of limitations. New promise. Promissory notes. Principal and agent. Principal and surety. Before Judge Lawson. Jones Superior Court. October Term, 1880. Juhan, as surviving partner of Juhan & Clower, brought suit to the October term, 1879, of Jones superior co rt, in the ordinary form of complaint, against William M Green and John C. Green, on a note madebythem, dated March 24th, 1873, and due one day after date, for $814.35, payable to Juhan & Clower, or bearer.

Jurisdiction. Laws. County matters. Roads and bridges. Before Judge Lawson. Monroe Superior Court. August Term, 1880. Bazemore et al. petitioned the county commissioners of Monroe county to cause obstructions placed upon a private way by Bailey, agent, to be removed. On the hearing, the petition was sustained, and the defendant ordered to remove the obstructions. He petitioned for a certiorari, one ground being want of jurisdiction in the commissioners.

<p>Criminal law. Charge of court. New trial. Before Judge HlLLYER. Fulton Superior Court. October Term, 1880.</p> <p>Reported in the decision.</p>

<p>Where, on objection to an executor as an incompetent witness to show the facts stated in his returns, the court held that he was incompetent as to debts and payments between him and the testatrix in her life time, and as to other matters was competent, but after-wards testimony of the character ruled out was given by him, the objecting counsel understanding that his objection continued, while the court understood that it went in without objection, a new trial will be granted.</p>

<p>After a case has been tried, brought by writ of error to this court — exceptions being taken both to the refusal of a new trial and the form of the decree — a dismissal of the case affirms the judgment as pronounced, and a bill of review will not lie for errors apparent on the face of the record.</p>

<p>Where a will provided that the proceeds of certain property should be “ equally divided among the legatees already named, share and share alike,” and certain legatees were named in two preceding items of the will, it was not ambiguous, and parol testimony was not admissible to show which of the legatees were intended.</p>

<p>Judgments. Pleadings. Attachment. Garnishment. Before Judge UNDERWOOD. Floyd Superior Court. September Adjourned Term, 1880.</p> <p>In connection with the report contained in the decision, it is only necessary to add the following: Morgan & Armspaugh sued out an attachment against Steers & Co. At the first term plaintiffs filed their declaration. In it they alleged that defendants had contracted to deliver to them a good cotton compress, with appurtenances (describing the press), and to repair all breakage occurring for six months from September ist, 1878, provided a skillful engineer was employed and the steam pressure not allowed to exceed one hundred pounds per square inch; that plaintiffs complied with all their part of the contract, made the payments required, had a competent engineer^ and did not allow steam pressure beyond the stipulated amount; that two breakages occurred, costing $1,500.00 each to repair, within the time stated, resulting from inferiority in the machinery; that their hands were kept idle by the' failure of defendants to comply with -their contract, etc. They laid damages at $5,000.00.</p> <p>Pendente lite garnishment was issued and served on the Atlanta Steam Cotton Compress Co. On September 29th, 1880, an amendment to the declaration was made alleging this levy of the attachment. At the same term of court a verdict was rendered for plaintiffs, and judg- . ment entered thereon to be levied on certain described property of defendants “ and also of such funds of the defendants, or either of them, as may be in the hands of the Atlanta. Steam Cotton Compress Company,” etc.</p> <p>At an adjourned term of the court in December, 1880, Steers, one of the defendants, made three motions, to-wit:</p> <p>(1) . To quash the fi. fa. because the attachment bond was signed by one member of plaintiffs’ firm, and not by the firm ; because the attachment was against the individual members of defendants’ firm, and not against the firm itself, thereby not following the affidavit and bond; because the hour of the day when the levy was made was not entered; and because the individual names of plaintiffs were not set out in the affidavit and bond.</p> <p>(2) . To set aside the judgment because of the irregularities in the proceedings; because the declaration was not sufficient to found a verdict upon; ’and because the judgment against such effects as might be in the hands of the Cotton Compress Company was illegal.</p> <p>(3) . To be allowed to open the judgment and plead to the merits.</p> <p>Each of the motions was overruled and defendants excepted.</p>

<p>■1. Leaving a copy of a declaration and process with at depot agent is not sufficient service on an individual lessee of the railroad.</p> <p>. 2. This suit being by an employé against a railroad to recover damages for an injury done to him by a co-employé, and the evidence .failing to show either that he was without negligence or that there was negligence on the part of his fellow servants, a non-suit was properly awarded.</p>

<p>1. The Western and Atlantic Railroad Company is subject to a tax. of one-half of one per cent, on its net income, but to no more.</p> <p>(a). This rate is fixed by contract between the state and the company, and cannot be altered by the former during the continuance of the lease.</p> <p>2. The payment of this income tax covers also such property as may be necessary and proper for the use and enjoyment of the franchise secured by the lease to the company, whether it was received from the state or has been purchased since the lease began. Other property of the company would be subject to taxation as the property of individuals.</p>

<p>1. Where an amendment to a bill in equity was filed and service acknowledged, with the express reservation of the right to demur thereto, but no order appears allowing such amendment, it was not too late to move to dismiss it at the hearing of the case.</p> <p>2. Where a bill for injunction and for other purposes was riled' under oath, it could not be amended by striking out everything between the names of parties and the prayer -for subpoena, and. inserting entirely new matter.</p> <p>(a). The original bill being by a wife, who alleged that she had bought property through the agency of her husband, and that he.hpd been deceived as to its value by' the vendor, that she had paid' its full value, and praying that the vendor be required to make titles to her, and be enjoined from interfering with her possession, it could not be amended by alleging that her husband bought the land for himself, but'used money belonging to her with the knowledge of the vendor, and praying that she be reimbursed. Such an amendment introduced a new cause of action.</p> <p>■ 3. While technically there is no such thing as a non-suit in an equity cause, yet as this bill would properly have been dismissed because no recovery could be had 'on it under the testimony, and as the result is the same under the name of a non-suit, the judgment will be sustained.</p>

<p>The record and bill of exceptions in this case shows that Susan V. Shealy, by her next friend, filed her bill, against W. T. Toole, and Martin L. Shealy, her husband, the object .being .to protect her interest in certain land which was alleged to have been bought by Martin L. from Toole and partly paid for with complainant’s money, and which was about to be subjected for the balance of the purchase money. On the trial, the record shows that a non suit was granted as to Toole, but nothing appears to indicate any disposition of the case as to Martin L. Shealy. When the case was called in the supreme court, a motion was made to dismiss it, because there was no final judgment in the court below. After the motion to dismiss had been argued for some time, counsel'for plaintiff in error proposed to suggest a diminution of the record. The court dismissed the writ of error, announcing the principles stated in the head-notes.</p>

Nowhere did it appear in what court or county the case was tried. .The clerk’s certificate commerlced as follows : State of Georgia, ) Clerk’s office, superior court, August Washington county. ) 16th, 1880. I, Sanford M. Northington,

Attachment. Pleading. Judgment. Verdict. Evidence. Before Judge HlLLYER. Fulton Superior Court. October term, 1880. Wilson, assignee in bankruptcy of Tinckham, moved to set aside two judgments in attachment obtained against Tinckham, one by Strieker & Co., the other by Louis & Co. The motions were heard together. The principal grounds were as follows : (1.) Because there was no bill of particulars filed with the petition or declaration, nor with the attachment.

<p>Venue. Bastardy. Criminal law. New Trial. Evidence. Before Judge COBB. City Court of Clark County. July term, 1880.</p> <p>Reported in the decision.</p>

<p>1. There was no error in the manner in which the respective claims of the parties were presented by the judge to the jury in this case.</p> <p>2. It does not appear to us that the judge presented the issues in this case unfairly.</p> <p>3. There was no error in instructing the jury that in weighing the testimony of a witness who was before them, they could consider the man himself, judge of his intelligence, his manner of testifying, his integrity and uprightness, and character for veracity, if they knew it.</p> <p>(a.) Written evidence is considered of higher proof thp.n oral, and where the parties have reduced their contract, agreement or stipulation to writing, and assented thereto, it is the best evidence of the same.</p> <p>4. Testimony taken down on a former trial of the same case may be . introduced to show such contradictory statements of a witness as to make him unworthy of credit, although not conclusive as to such former testimony; and such is a fair construction of the meaning of the judge’s charge on this point.</p> <p>5. The contest being in regard to the title to land, on the trial a charge could not be invoked to the effect that if the deed under which one party claimed was void as conveying title on account of usury, it might still be foreclosed as an equitable mortgage, and be superior to the rights of the maker’s family by reason of a homestead taken after it was made.</p> <p>(a.) The homestead right cannot be defeated by á deed void for usury nor can a like result be accomplished under the same instrument by calling it an equitable mortgage.</p>

Criminal law. Charge of Court. Evidence. Verdict. Before Judge Hillyer. Fulton Superior Court. October term, 1880. Wilson was jointly indicted with Horton and Donovan for larceny from the person. The state elected to try them severally. On the trial of Wilson the evidence was, in brief, as follows: On November 10th, 1880, W. G. Mosely came into the car-shed on the Central railroad about mid-day. He had his family with him, and was also accompanied by one M Heard and family.

<p>Statute of limitations. Judgments. Executions. Before Judge Erwin. Hall Superior Court. September term, 1880.</p> <p>Reported in the decision.</p>

<p>Statute of limitations. Homestead. Minors. Married women. Before Judge Erwin. Clarke Superior Court. November adjourned term, 1880.</p> <p>Reported in the decision.</p>

Practice in the Superior Court. Supersedeas. Money rule. Before Judge WRIGHT. Decatur Superior Court. May term, 1880.

<p>Receivers. Equity. Liens. Rule. Practice in the Superior Court. Before E. N. BROYLES, Esq., Judge pro hacvice. Fulton County. At Chambers. December 28th, 1880.</p> <p>Reported in the decision.</p>

<p>Banks. Constitutional law. Liens. State depositories. Debtor and creditor. Before Judge UNDERWOOD. Floyd County. At Chambers. April 9th, 1881.</p> <p>Reported in the decision.</p>

<p>1. The lien o£ the mayor and' council of Atlanta for tax attached on the first day of April, 1875, to land as the property of the holder-on that day. That he subsequently sold the land, and upon failure of the purchaser to pay all of the purchase money, that a judgment was obtained against him, a deed made to him, and the land levied on and sold as his property, did not divest the lien of the municipal authorities. The sheriff’s sale conveyed what the defendant had, the lien attached to what the vendor had.</p> <p>2. Under such circumstances a transferee of the fi. fa. for municipal tax could not claim the sum arising from the sale by the sheriff under the ft. fa. against the purchaser, and it was irrelevant to show that he permitted the amount so raised to be paid over on the ft. fa, for the purchase money.</p>

William C. Bee & Co. filed their bill 2nd March, 1877, against Martha W. Williams (now Martha W. Churchill), the widow and executrix of Mortimer H. Williams, Sen., alleging, in brief, as follows : Mortimer H. Williams, Sen., on 28th October, 1874, purchased of John T. Blacklock the eastern one-third of a lot of land in Savannah, known as “the Johnson wharf property,” giving his note for part of the purchase money for five thousand dollars, with interest at 10 per cent., one…

<p>Practice in the Supreme Court. February term, 1881.</p> <p>The Erie City Iron Works brought trover against N. L. Angier. Upon his own motion H. H. Witt was made a party defendant. Plaintiff recovered as to Witt, but failed as to Angier, and moved for a new trial, making both defendants parties to the motion. The clerk, in certifying the bill of exceptions and the record, gave the name of the case as the Erie City Iron Works vs. Angier, omitting the name of Witt. In the supreme court, counsel for plaintiff in error, moved to withdraw the record in order to have this certificate changed, so as to include 'both defendants, or if this should be denied, counsel for plaintiff in error asked that the clerk of the superior court might come into the supreme court and alter the certificates to the record and bill of exceptions so as to include Witt, or attach a .new certificate. Counsel for defendant in error objected to this motion, and moved to dismiss the ■case on the ground that the record ánd bill of exceptions were not properly certified, and because the brief of evidence was not properly authenticated.</p> <p>The motion to withdraw was refused, and the case dis.missed.-</p>

<p>Continuance. Deeds. Title. Trusts. Evidence. Principal and agent. Notice. Service. Minors. Usury. Verdict. Before Judge SIMMONS. Bibb Superior Court. April term, 1880.</p> <p>Boardman, in his own right and as next friend of the minor children of Charles T. Holmes, filed his bill against Mrs. E. A. (or A. E.) Watkins, Charles T. Holmes and his wife, Mrs. Georgia A. Holmes, and Gibbons M. Taylor. He alleged, in brief, as follows:</p> <p>In 1863, John D. Watkins, the husband of one of the defendants, was the trustee of a Mrs. Edwards, and held the property now in controversy. In that year he gave to complainant money to purchase from himself this land for the benefit of his wife and daughter. Complainant accordingly took a deed from Watkins as trustee, and on the same day made a deed to the lot to Rutherford, as trustee. This deed provided that the trustee should hold for the following uses: For the sole use of Mrs. Watkins for life; after her death for the use of Mrs. Holmes (at that time Miss Watkins) for life ; if the latter should die without leaving any children, and leaving her mother surviving her, then Mrs. Watkins should have power to dispose of the property by will. This deed did not carry out the intention of the parties, which was to convey the remainder after the life estates to the children of Mrs. Holmes, who might be born of her marriage ; and the omission of such a provision was a mistake of the scrivener, which left a reversion in the grantor, who, in fact, disclaimed any interest in the property.</p> <p>In 1872 Rutherford resigned the trust, and Holmes succeeded him. In 1874, Mrs. Watkins, Holmes, trustee, and Mrs. Holmes united in a petition to the chancellor in which they alleged that there were taxes due by the trust estate which they had no means of settling, and prayed that the trustee be allowed to secure a loan and to execute such deed, mortgage or other instrument as might be necessary for that purpose. At that time Mrs. Holmes had one minor child. A guardian ad litem was appointed for it, and recommended the granting of the petition. It was accordingly granted at chambers; the money, $1,250.00, was borrowed from Taylor, and a deed made to him to secure the loan, Mrs. Holmes and Mrs. Watkins assenting thereto in writing.</p> <p>In 1876 the debt became due, but the trustee was unable to pay it. Accordingly, in April of that year, Mrs. Watkins, Mrs. Holmes and Holmes, trustee, again petitioned the chancellor to allow a renewal of the note to be made for eight months and the execution of a deed to secure this renewal, which should include a power of sale ; the petition also stated that the trustee contemplated securing money from a building and loan association to pay off this note at maturity, and prayed that he have power to execute such instruments as might be necessary for that purpose. At that time another child had been born to Mrs. Holmes. A guardian ad litem was appointed for the minors, but no service was had directly upon them ; the guardian ad litem answered recommending the order, .and it was granted at chambers. ' On April 28th, 1876, Holmes, trustee, with the written assent of his wife and Mrs. Watkins, executed the renewal note and the deed to ■secure the same, the latter containing a provision that if the debt was not paid at maturity Taylor should have the right to advertise the property for thirty days and sell it to pay the claim.</p> <p>On August 3d, 1877, in consideration of indulgence on the note, Holmes, trustee, his wife and Mrs. Watkins, ■signed an agreement to allow the property to be advertised on November 3d, following, and after being advertised for thirty days, to be sold without opposition. At this time one of the children living at the date of the •second order had died, and a third child had since been born to Mrs. Holmes. Under this agreement Taylor has .advertised the lot for sale; the advertisement appeared November 6th, and the sale was set for December 6th.</p> <p>The bill charges that the whole proceeding was illegal, for the following reasons : (1) Because the debt was not •contracted for the benefit of the trust estate, but was for the personal benefit of Holmes. (2)'Because no service was effected upon minor beneficiaries at the time of taking the second order, as required by the act of 1876. (3) Because of misdescription of the property. (4) Because the advertisement does not conform to the agreement. (5) Because the interest of the cestui que trusts is not such as is subject to levy and sale under mortgage with power of .sale attached.</p> <p>The prayer was for injunction to restrain the sale by Taylor, for reformation of the deed made by complainant' to Holmes, trustee, for general relief and subpcena.</p> <p>Taylor answered denying any notice whatever of any misapplication of the trust funds, insisting that the description of the land was substantially correct and was-sufficient, alleging that he was a bona fide purchaser for value, and praying, by way of cross-bill, that the property be sold and this debt paid. He alleged that I. C. Plant & Son, bankers, acted ’as his agents to loan the money and take the security.</p> <p>The other defendants, who were substantially complainants, concurred heartily with the allegations of the bill. They also alleged that the whole transaction was-tainted with usury.</p> <p>It is unnecessary to set out*the evidence except the-following: At the time of the original loan (April 20,. 1874), the note provided for interest at the rate of one and three-eighths per cent, per month. This was paid in-advance or deducted from the amount loaned. Plant & Son also charged Holmes, trustee, a commission for negotiating the loan, the amount of which was differently-stated by the witnesses. This they kept themselves, and Taylor had nothing to do with it. In 1875 (after the passage of the usury law of that year) a first renewal of' the note was had, and the interest specified at twelve-per cent., which was paid. Whether Plant & Son again required commissions was a disputed point. This rate-was continued afterwards, and the second renewal was-made at the same rate. After the loan was consummated,. Holmes, trustee, deposited the money in the bank of I.. C. Plant & Son, and subsequently drew it out on his-checks.</p> <p>The jury found for the defendant (Taylor), and that the lot be sold to pay his debt; and a decree was entered accordingly. Complainant moved for a new trial, on the.following grounds:</p> <p>(1) . Because the court refused to continue the case on account of the sickness of Mrs. Watkins, one of defendants, who was a material witness for complainant to show misappropriation of the trust funds and want of knowledge on her part of the contentS'Of the orders of the chancellor, etc. [The court certified that the case had been set ten days in advance, and no effort had been made to secure her testimony by interrogatories.]</p> <p>(2) . Because the court refused to allow the draftsman of the deed from Boardman to Rutherford, trustee, to-testify that he inadvertently omitted to include a provision conveying the remainder to the children of Mrs-Holmes, as he was instructed to do. [The court certified that this was ruled out after admission by counsel that they did not expect to show notice thereof to Taylor.]</p> <p>(3) . Because the court ruled out the same testimony" when offered simply to réform the deed, and without reference to Taylor.</p> <p>(4) , (5). Because the court rejected testimony offered-to show what use the trustee made of the money , borrowed, and also checks drawn by him on Plant & Son after the loan and deposit with them as bankers, which were offered to show notice to them of use of the funds by the trustee.</p> <p>(6) . Because the court rejected testimony of Holmes to the effect that neither his wife nor Mrs. Watkins read the petitions or other papers under which the loan was made.</p> <p>(7) . Because the court overruled the objection of counsel to the admission in evidence of the petition of 1876,. on the ground that the minors were not served.</p> <p>(8) . Because the court erred in ruling that there was no-usury in the transaction between Holmes, trustee, and Taylor.</p> <p>. (9). Because the court overruled the objection of counsel to the admission in evidence of the order of April, 1876, based on the ground that there was no authority of law allowing a trustee to make a deed with such power of sale, and the chancellor had no power to grant such an order.</p>

Practice in the Superior Court. Jurors. Equity. Injunction. Before Judge Stewart. Carroll county. At Chambers. February 8th, 1881. Driskill filed his bill against Cobb et al. to enjoin the issuing of a fi. fa. and making of a levy under a judgment obtained by Cobb against him, and to set aside such judgment and obtain a new trial.

Promissory notes. Principal and surety. ■ Before Judge HlLLYER. Fulton Superior Court. October Term, 1880. In this case three appeals were consolidated and tried together by order of court. The suit was originally begun in a justice’s court on three notes,, which read as follows: §100.00. Six months after date we or either of us promise to pay John Neal or bearer one hundred dollars, to bear two per cent, per month until paid.

Criminal law. Charge of court. New trial. Before Judge ERWIN. Gwinnett Superior Court. September Term, 1881. Three of the Whitley family were indicted for riot. On the trial, the evidence for the state showed, in brief, the following facts: Hodgins taught a country school. Two of his scholars became involved in a difficulty, a .small girl named Summey reporting a daughter of one of the Whitley’s for calling her opprobrious names.

Municipal corporations. Streets. Roads and bridges. Charge of court. Before Judge Clark. City Court of Atlanta. June Term, 1880. Champe and wife brought case against the city of Atlanta, alleging that on March 20th, 1878, Mrs. Champe stepped into a hole in abridge on Walker street, and bruised her left leg violently, and tore the flesh and wrenched her ankle, causing pain, loss of time, nurse hire and physicians’ bills, to her damage $3,000.00.

Contracts. United States mails. Before Judge Erwin. White Superior Court. November Term, 1880.

Liens. Evidence. Continuance. Equity. Decree. Before Judge Hillyer. Fulton Superior Court. October Term, 1880. Kries (or, as he is called in previous reports of this case, Kreiss) held a certain lot under lease from Gaskill for a specified term, with a conditional right to purchase. Under contract with him Davis furnished, or claims to have furnished, material and built the brick-work of a house on the property.

<p>1. Where the state authorizes a citizen, by joint resolution of the general assembly, to bring suit against her on certain stipulations and for a particular cause of action therein specified, the courts are restricted by those stipulations to that cause of action, and are not empowered to consider any broader equities which may exist between the parties, or the law which might apply to a different cause of action.</p> <p>2. When an officer of the state surrendered his warrant on the treasury for his salary and received in lieu thereof, from the treasurer promises to pay by the state, in the form of treasury notes, which circulated as currency at the time, and suit is brought for the salary, the reception of the notes and surrender of the warrants are in law payment of the salary, no matter what may have been the understanding at the time between the officer and the treasurer, even if sanctioned by the governor. The treasurer settled with the state and was credited for the salary, and the debt for the salary was extinguished. Suit on the ultimate failure to pay the notes, according to the promises therein made, if authorized and brought, would present a different question, on which the present case will not allow the judiciary to pass.</p>

Illegality. Amendment. Levy and sale. Principal and surety. Injunction. Before Judge SIMMONS. Houston county. At Chambers. February 12th, 1881. John W. Woolfolk filed his bill against D. F. Gunn et al., alleging, in brief, as follows : Complainant was the administrator of Daniel Gunn, deceased ; D. F. Gunn was the guardian of the other substantial defendants, who were children of the intestate.

<p>Judgment. Verdict. Practice in the Superior Court. Constitutional law. Before' Judge McCutchen. • Bar-tow Superior Court. July Term, 1880.</p> <p>Reported in the decision.</p>

Criminal law. Charge of court; New trial. Before Judge HlLLYER. Fülton Superior Court. October Term, 1880. To the report contained in the decision it is only necessary to add that the newly discovered evidence relied on was such as tended to impeach Mosely, a leading witness for the state.

<p>Mandamus. Banks. Actions. Officers. Before Judge Hillyer. Fulton Superior Court. October Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. In a suit on a promissory note, a plea having been filed that the endorser was discharged by reason of the failure of the holder to protest and give notice, and the latter claiming that protest and notice had been waived, it was error to charge the jury that certain facts, if they occurred, would authorize the holder to believe that protest and notice were waived. The issue was not as to his belief, but as to the actual existence of a waiver.</p> <p>2. If the indorser of a promissory note waives protest and notice, a subsequent effort by the holder to have the note protested would not affect the waiver already made. The fact of waiver being in issue, a subsequent effort to protest the note made by the holder could be proved as tending to show that what had transpired did not amount to a waiver, but would not be conclusive on that point.</p> <p>3. Where a note sued on was made payable at a national bank on its face, and a plea of discharge to the endorser, by reason of a failure of the holder to have protest made and notice given was filed, parol testimony was not admissible to show that the note had never been negotiated or left at a chartered bank for collection, and was not intended to be so negotiated or collected.</p>

<p>1. An absolute deed to land to secure a debt, even though there be a bond to reconvey on its payment, passes the legal title.</p> <p>(a). Such title is not divested by the subsequent bankruptcy and discharge of the debtor; nor is it affected by the fact that he returned the land as his property in the bankrupt court.</p> <p>2. The consent of the wife to a deed to secure a debt is not essential to the passing of title thereby.</p> <p>3. That, subsequently to the making of such a deed, a homestead in the land has been set apart to the wife is no defense to an action of ejectment under the deed.</p> <p>4. Where there has been a verdict and judgment in an action of ejectment upon a deed to land, although it may have been executed alone to secure a debt, it is conclusive between the parties and their privies upon all questions arising under the deed and its consideration which would have been the subject of a legal defense.</p> <p>5. If questions of fact are submitted to a chancellor on an application for injunction, this court will not set aside his judgment thereon unless there is a manifest abuse of his discretion in deciding upon them.</p>

<p>A declaration in an action by a railroad employé against the road alleged, in brief, as follows : Plaintiff was a baggage-master on defendant’s train, and in addition it was his duty to look after the condition of the cars, and generally to do everything in his power to preserve the safety of the trains and passengers. On the day of his injury he was notified that new wheels had been put under one of the cars, and that he should look out for them. Soon after leaving Atlanta the new wheels became hot and made a noise; he went to the side.door of the baggage car to see if they were in a condition to endanger the safety of the train, and while thus looking out, without fault or negligence on his part, he was stricken by the spout of a tank of defendant, resulting from the negligence of the latter in placing such tank or spout so near as to strike him while discharging his duty and looking out of said car in an ordinary and usual manner. It was his duty, and necessary for him to be in the position he was in at the time of the accident, and he did not and never had known that the tank was so near the track:</p> <p>Held, that a case was substantially made by this declaration, and the court properly refused to dismiss it on general demurrer.</p>

<p>Where ejectment was brought by an administrator, his letters were not rendered inadmissible because they did not mention realty. The province of letters of administration is to prove the appointment ; the law clothes the administrator with authority.</p>

<p>Injunction'. Before Judge PATE. Pulaski County. At Chambers. February 10th, 1881.</p> <p>Reported in the decision.</p>

<p>1. While it is requisite that the selection and appointment of a judge pro hac vice should affirmatively appear in the record, yet the absence of jurisdiction in the presiding judge would operate to reverse his judgment, not to dismiss the case in this court.</p> <p>2. On a motion for a new trial, if the brief of evidence has been agreed upon by council and filed in the clerk’s office (or filing has been waived) and a rule nisi has been granted, on the hearing the motion will not be dismissed because the brief tvas not approved in terms. The granting of the rule nisi is a presumptive approval within the meaning of the rule of court, and a direct approval may be made at the hearing, although a different judge is presiding.</p> <p>3. The verdict in this case was required by the evidence, and the grant of a new trial was error.</p>

<p>1. In order for a creditor to avoid a voluntary settlement by a husband on a wife which was not recorded within three months, on account of credit given before the actual record, he must be a bona fide creditor who gave credit on the faith of that property; that is upon the belief that the husband owned that property.</p> <p>2. The evidence does not disclose that credit was so given in this case. A mere general statement by one member of a firm, of which the husband was also a member, and to whom the credit was extended, . that they owned plenty of real estate outside of their stock to pay all debts they might contract, was not alone sufficient to show that this particular property was referred to or relied on.</p>

<p>Evidence. Trover. Statute of limitations. Before Judge CRISP. Macon Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

<p>Claims. Executions. Levy and sale. Before Judge CRISP. Lee Superior Court. November Term, 1880.</p> <p>To the report contained in the decision, it is only necessary to add that a fi. fa. in favor of Wyatt against Callayvay et al. was levied on certain property, which was claimed by Chapman. On the trial the court dismissed the levy, on motion, on the ground that before it was made another levy had been made under the same fi. fa. and a claim placed in the hands of the sheriff, and that no order of court was obtained to withdraw the fi. fa. for a re-levy. Plaintiff excepted to this.</p>

<p>Where a distress warrant has been taken out and levied, and a counter-affidavit made and returned into court for trial, the proceeding amounts to a suit for the rent, and pending it an action of complaint cannot be brought for the rent covered by the warrant. To such an action the pendency of the former case is a good plea, unless such former action is so defective that no recovery can possibly be had on it.</p>

<p>Liens. Summary proceedings. Before Judge Underwood. Polk Superior Court. August Term, 1880.</p> <p>Reported in the decision.</p>

<p>Claims. Onus probandi. ■ Administrators and executors. Notice to produce papers. Evidence. Before Judge SPEER. Henry Superior Court. January Term, 1880.</p> <p>To the report contained in the decision it is only necessary to add that one ground of the motion for new trial was that a deed having been brought into court by the administrator under notice to produce by the claimant, being a deed from the intestate to the claimant, it was admitted in evidence without proof of delivery. (It is not directly stated that the deed was brought in under notice to produce, but such seems to have been the fact).</p>

<p>Amendments. Contracts. Written instruments. Before Judge CRISP. Macon Superior Court. May Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The construction of a paper,whether it is by its terms testamentary in character or not, is a question for the court; the question of proper execution, testamentary capacity and voluntary making are for the jury.</p> <p>2. The verdict is supported by the evidence.</p>

<p>Criminal law. New trial. Evidence, Before Judge CRISP. Sumter Superior Court. October Term, 1880.</p> <p>To the report contained in the decision it is only necessary to ádd that counsel for the state were allowed, over objections on behalf of the defendant, to show that shortly after the burglary a witness for the state attended a party or candy-pulling, that defendant and his brother were there, that about the time the party ended, defendant’s brother showed some money, and stated that he had $150.00 belonging to defendant; that the latter was standing by near enough to hear what was said, but he took no part in the conversation, and the witness did not know whether he heard it or not. The court submitted that question to the jury with proper instructions as to the effect of such evidence.</p>

<p>1. While the plea of failure of consideration was not as full as it might have been, it was not so defective as to be stricken on general demurrer.</p> <p>2. For an attorney to agree to prosecute a case and bear all expenses of litigation for a specified part of the recovery is champertous, and a plea, setting out such an agreement, filed to a suit for the agreed portion, was not demurrable.</p>

<p>1. It is the duty of a railroad company, through its agents, to give reasonable signals of the departure of its. trains from its stations and depots, such signals as would ordinarily attract the attention of passengers and those interested in the movements of the cars of the railroad company.</p> <p>2. Should a passenger needlessly linger about a depot or station, and neglect to board a train, then the company as to such passenger is only bound to ordinary diligence; - and it would be the duty of such passenger to use caution in observing signals which might be given by the agents of the company..</p> <p>The officers of a railroad company have the right to presume that passengers will only attempt to get on and off its cars at the places designated by the company for such purpose, and it is not the duty of the railroad company to keep its track clear for those who may see proper to pursue the cars while leaving a depot or station ; and more especially would this be true as to those who pursue the cars to a point beyond that assigned by the company for receiving and discharging passengers.</p> <p>4. A party guilty of a negligence by which a loss is sustained shall only be liable Tor the proximate consequences of his wrongful act.</p> <p>5. To entitle a party to recover damages of a railroad company on account of the negligence of its agents, it should appear that the negligence was the natural and proximate cause of the injury; for should it appear that the negligence of the railroad company would not have damaged the party complaining but for the interposition of a separate independent agency, over which the railroad company neither had or exercised control, then the party complaining cannot recover.</p> <p>6. The granting of a new trial in this case by the court below, was not such an abuse of his discretion as would authorize this court to reverse the judgment.</p>

<p>The plaintiff in error .having asked leave to .withdraw the writ of error in this case after argument thereon, but before any written decision thereon had been agreed upon by the'court, it is ordered that the leave be granted and the judgment be affirmed.</p>