Volume 67 — Georgia Reports

<p>1. Though a suit be brought in the short form of pleading upon an insurance policy, under section 3392 of the Code, the better practice is to allege a loss by fire and a compliance with the conditions precedent to a recovery, or a waiver by the insured thereof.</p> <p>(a.) A failure to so allege is curable by amendment, and is to be reached by special demurrer, not by general motion to dismiss because no cause of action is set out.</p> <p>2. The verdict is supported by the evidence, and is not contrary to law.</p> <p>3. The head of a family, out of whose property a homestead has been set apart, has an insurable interest therein.</p> <p>4. The application for homestead in this case was made prior to the adjudication in bankruptcy, and was pending at the time thereof, and the homestead was set apart before the deed of assignment was made. Therefore it would seem that it never passed to the assignee at all. But the full proceedings before the bankrupt court not being in the record, this point is not ruled.</p> <p>5. A ground of error abandoned in this court will not be considered.</p> <p>6. A demand for payment of an insurance policy and an absolute refusal thereof, waives proofs of loss.</p>

New Trial. Mistake. Levy and Sale. Title. Before Judge HlLLYER. Fulton Superior Coürt. April Term, 1881.

<p>1. Where all the parties are before the court in a claim case, on proper pleadings equitable rights may be adjudicated; but where it is necessary to seek specific performance of a voluntary agreement on the faith of which improvements have been made, and for that purpose to make new and distinct parties, a court of equity is the proper forum for the case.</p> <p>2. While the testimony of a witness since deceased, given under oath at a former trial upon substantially the same issue, and between substantially the' same parties, may be proved by any one who heard it and professes to remember the substance of the entire testimony, yet testimony of such a witness on a trial between other parties cannot be so proved.</p>

<p>1. Possession of personalty by an agent is áctual, not constructive, possession by the principal, and 'will support a possessory warrant by the latter against one who wrongfully and fraudulently takes possession thereof.</p> <p>2. When, under a possessory warrant, a justice of the peace awards the possession of personalty to the plaintiff, he should require a bond for its forthcoming to answer any suit or judgment on behalf of the other party, as provided by §4035 of the Code. A failure to require such bond will work a reversal of the judgment.</p>

<p>1. The verdict in this, case is amply supported by the evidence.</p> <p>2. To charge that if certain facts, sought to be shown by the State, are true, the jury might consider such facts in making up their verdict, is not error of which the defendant can complain.</p>

<p>Jurisdiction. Executions. Judgments. Presumptions. Before Judge HARDEN. City Court of Savannah. February Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. When an injunction is granted or refused upon the facts made by the bill, answer and affidavits, this court will not interfere with the discretion bf the court below unless it has been abused. But if there be errors of law committed by the chancellor, the judgment will be reversed, though he may be right on the facts.</p> <p>2. In this case the facts are conflicting, and we see no reason to disturb the judgment of the chancellor thereon.</p> <p>3. The ordinary has power to establish a new militia district either in term time or in vacation.</p> <p>(a.) No special notice to a justice residing in the old district, and whose fees will be diminished by creating the new one, is necessary.</p>

<p>■ Certiorari. Corporations. Pleadings. Garnishment. Before Judge WILLIS. Muscogee Superior Court. May Term, 1881.</p> <p>The Pioneer Co-operative Company brought suit against Louis Givins in a justice court, and procured garnishment to issue thereon directed to the Eagle and Phcenix Manufacturing Company. The garnishee, by its treasurer, answered that it was indebted to defendant in the sum of $13.90 for daily labor. Judgment was rendered against the defendant, Givins. Counsel for the garnishee moved for its discharge, it appearing from the answer that the debt was for labor of defendant. The justice overruled the motion and rendered judgment against the garnishee for the amount admitted to be due. The garnishee sued out a writ of certiorari. The certiorari case’ being called in the superior court, the Pioneer Company moved to dismiss the same, because of insufficiency of the affidavit upon which said certiorari was based ;• because it nowhere alleged that the affiant verily believed that the said garnishee had good cause for certiorari.</p> <p>The affidavit was as follows: “I, G. Gunby Jordan, treasurer of the Eagle and Phoenix Manufacturing Company, do solemnly swear that the petition for certiorari is not filed in the case for the purpose of delay only; and I verily believe I have good cause for certiorari, and that the facts stated in the foregoing petition, so far as they come within my own knowledge, are true, and so far as they are derived from the knowledge of others, I believe them to be true.”</p> <p>The court overruled the motion to dismiss, and rendered judgment, reversing the judgment of the magistrate and discharging the garnishee.</p> <p>Plaintiff excepted.</p>

<p>1. Where an affidavit to obtain a distress warrant stated that certain rent was due,a counter-affidavit which denied that the sum distrained for was due, was not demurrable. If the landlord desired to dis-train before the rent was due, his affidavit should have stated the ground therefor.</p> <p>2. When a counter-affidavit to a distress warrant has been dismissed, the case is out of court, and a judgment for the plaintiff for the amount of rent claimed cannot be rendered.</p> <p>3. Since the constitution of 1877 judgment by the court can only be rendered where the suit is on an unconditional contract in writing.</p>

Practice in Superior Court. Practice in Supreme Court. New Trial. Decree. Judgments. Before Judge Crisp. Macon Superior Court. December Term, 1881. This was a bill filed by Willis et al., in which they set up about the following facts: That Jas. J. Fokes, while in life, became'indebted to the complainants in the bill certain amounts, and that afterwards, in the year 1870, that he departed this life intestate, leaving a large estate, and these debts unpaid.

<p>1. It was not the intention of the act of 1881 (acts 1880-81, page 124) to interfere with pre-existing liens, or to hinder and delay parties in the ordinary rights provided by law for the exercise of their usual common law remedies. Nor did it make the grant of injunction and appointment of a receiver mandatory, but gave a new remedy to creditors against insolvent traders, and left such action discretionary, as heretofore, under the facts of the case.</p> <p>2. In this case it appears that the lien debts were sufficient to exhaust the assets, and there was no contest among them which required equitable interference. Hence injunction at the instance of other creditors would be fruitless.</p>

<p>1. There was no error in dismissing this case on motion at the close of the evidence.</p> <p>(a.) To render one an executor de son tort it must appear that he wrongfully intermeddled, without authority, with the personalty of the decedent, or that he converted the same to his own use.</p> <p>(3.) That a trustee may be indebted to his cestui que trust at the time of her death will not make him an executor de son tort.</p> <p>2. A general demurrer to a bill in equity rules the equity of the bill, and after being overruled the same question cannot be again raised in the answer. But if the evidence on the trial fails to sustain the allegations of the bill, a motion to dismiss, in the nature of a non-suit, may be granted.</p> <p>3. A will made by one who was a resident of Georgia at the time of her death must have been attested by three witnesses in order to be probated and admitted in evidence.</p>

Evidence. Interrogatories. Witness. Non-suit. Malicious Prosecution. Before Judge FLEMING. McIntosh Superior Court. May Term, 1881.

<p>Equity. Administrators and Executors. Bills. Dower. Parties. Before Judge CARSWELL. Chatham Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>A testator died in 1864, leaving a will by one item of which he bequeathed two negroes, of a stated value, to his'daughter, to be delivered to her by the executors upon her arriving at the age of twenty-one, or upon being married, and provided that if either or both of the negroes should die before the daughter became of age, she should be made equal to the other children out of the estate of the testator. The negroes did not die, but were emancipated before the daughter became of age:</p> <p>Held, that by the will title to the negroes vested in the daughter, with delivery of possession postponed, and that the loss occasioned by emancipation fell upon her, not upon the estate.</p>

<p>1. In a criminal case the place at which the prisoner’s leg was amputated being a material point, it was error for the court to require him to make profert of himself, so that a witness could see him and describe his condition to the jury. A defendant in a criminal case cannot be required to give evidence against himself, either by acts or words.</p> <p>2. To state to the jury in a murder case that it was conceded that the deceased was killed with a pistol was error, where no such concession was made, and the weapon used was a material question in the case. That the defendant denies altogether that he committed the homicide, does not admit its commission in the manner claimed by the state.</p>

<p>Administrators and Executors. Non-suit. Judgments. Before Judge MERSHON. Wayne Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>Claims. Pleadings. Judgments. Before Judge WlLLIS. Muscogee, Superior Court. November Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. Neither a legal nor an equitable amendment which sets out a new cause of action and requires new parties can be made to an action at law.</p> <p>(a). An action of complaint for land cannot be amended by alleging that the lánd belonged to an estate of which the plaintiff was a distributee; that the administrator sold it in 1864, and had it bought in for himself; that the present holder claims under the administrator, and knew of this sale, that the administrator obtained a final receipt from the plaintiff by fraudulent statements, with a prayer to set aside the sale and cancel the deeds under it.</p> <p>(S). A purchase by an administrator at his own sale is voidable, not void.</p> <p>2. Where suit was brought in 1880 on a cause of action which appeared by amendment to have arisen prior to June 1st, 1865, it must appear that the plaintiff was under some disability, or came within some exception to the act of 1869, and brought suit within proper time after the same was removed.</p> <p>(a). Fraud in which the defendant to an action, on'its face barred by the statute, was in no way concerned, will not operate as a relief from such bar.</p>

<p>While lapse of time between the occurrence of a ground for divorce and the application therefor may be considered by the jury, and if not satisfactorily explained may be good ground for refusing the divorce, yet the statute of limitations does not apply to bar such actions.</p> <p>•.(a). Especially would the statute not apply to the ground of willful and continued desertion.</p>

<p>■ Title. Notice. Mortgage. Practice in Supreme Court.. Before Judge Fleming. Randolph Superior Court-May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Courts of ordinary have general jurisdiction of the granting or revoking of letters of administration, and a judgment granting letters cannot be collaterally attacked by showing that the applicant was not a citizen of Georgia.</p>

<p>1. At common law the right to fit up a building for city purposes and to provide suitable accommodations for the transaction of the business of the city, is a necessary incident to the administration of every municipality; and expenses incurred for that purpose may be ranked as necessary expenses.</p> <p>2. By the act of 1874 extraordinary expenses are defined to be those incurred for paving or macadamizing the streets, for educational purposes, and for paying the public debt; all other expenses of municipal corporations are classed as ordinary current expenses; and the tax to cover the latter class is limited to one-half of one per cent., unless increased under authority of a vote of two-thirds of the legal voters.</p> <p>3. A municipal corporation may expend a portion of the tax lawfully raised for ordinary expenses in fitting up necessary municipal offices, due regard being had to the retention of a sufficiency for the payment of salaries and other like essentials to the conducting of municipal government.</p> <p>4. Where a tax has been levied by a municipal corporation sufficient to cover an anticipated expenditure for city offices or the like, it is not necessary to delay taking any steps towards securing such improvements until the money is actually in the treasury. To have work done and pay for it at its completion, or by installments during its progress, having the money ready when the time of payment arrives, is not to incur a debt within the meaning of the constitutional prohibition on that subject.</p> <p>Crawford, J., dissenting.</p>

<p>[Jackson, Chief Justice, being disqualified in this case, Judge Underwood, of the Rome circuit, was appointed to preside in his stead.]</p> <p>1. The rulings of the court on exceptions of law to a master’s report do not form grounds for a motion for new trial after verdict. They may be assigned as errors in the same bill of exceptions which brings up the refusal of a new trial, if it be tendered within the proper time after such rulings are made. Otherwise exceptions pendente lite may be filed, and error assigned thereon after final termination of the case and bill of exceptions taken to the final judgment therein.</p> <p>(a.) That rulings of the court on exceptions of law to a master’s report are set out as grounds for a new trial, will not work a dismissal of the writ of error if there are other grounds of the motion or assignments of error. The result will be merely to exclude from our consideration such allegations of error.</p> <p>2. Errors in a decree give no ground for setting aside the verdict on which it is based, and granting a new trial. Such errors are curable by direct exception thereto.</p> <p>3. The verdict was not contrary to law or the evidence.</p> <p>4. Under the facts of this case the amount of the decree against the Central Railroad was right.</p> <p>5. Upon payment of the amount found against the railroad company on account of its title under a bill filed to settle its rights to certain property in litigation, it was entitled to a perpetual injunction to prevent further disturbance thereof, and to have the title confirmed.</p>

<p>Wills. Estates. Title. Judgments. Res ad judicata. Ordinary. Before C. P. GOODYEAR, Esq., Judge pro hac vice. Ware Superior Court. April Term, 1881.</p> <p>John Hargraves died testate in the year 1857. By his last will, made June 10th, 1856, he devised to J. M. Hargraves his entire estate, and in the event the devisee could not inherit, he devised said estate to John Denton and William Denton. The devisee, J. M. Hargraves, at the time the will was made, and at the death of the testator, was a slave. The will was admitted to probate in 1857. In 1878 J. M. Hargraves filed his bill against Lott et al. It alleged that complainant became of age in 1876 ; that he was entitled to the estate; that defendants had colluded with the executor, and had wrongfully obtained possession of a large part of the estate; and that the executor had died insolvent in 1876, and there was no administration on his estate. The prayer was for account, etc.</p> <p>Defendants pleaded, among other things, that at the time of the testator’s death the. complainant was a slave, and the devise to him was void. Complainant demurred to this plea on the ground that it attacked collaterally the judgment of the court of ordinary admitting the will to probate. The demurrer was overruled. Defendants answered. On the trial, the jury found for defendants. Complaihant moved for a new trial, which was refused, and he excepted.</p>

<p>1. To entitle complainant to enter a court of equity to seek relief against trespassers on land, it is not necessary to show a perfect title thereto. A prima facie title is sufficient in the absence of a better outstanding title.</p> <p>2. Where it is sought to set aside deeds made by an administrator, as well as the grant of administration, on the ground that they were both fraudulently procured, he is a necessary and substantial party, and the bill may be filed in the county of his residence.</p> <p>3. A bill to set aside and cancel a deed is not such a suit respecting titles as must be brought in the county where the land is situated.</p> <p>4. Equity has jurisdiction to set aside a judgment granting letters of administration, where such judgment was obtained by fraud.</p>

<p>1. To a suit by a corporation against one of its stockholders, the defendant may plead and recover as a set-off any sum of money obtained from him by fraud as a subscription to the stock; unless, being a subscriber, there are debts of the corporation unpaid, incurred after his subscription, to the amount of the sum so paid, or greater. •</p> <p>2. If there were any errors in this case, they were immaterial, and did not hurt the defendants.</p>

Criminal Law. Charge of Court. Before Judge WlLLIS. Muscogee Superior Court.. November Adjourned Term, 1880. Madden et al. were indicted for robbery. The testimony for the state was to the effect that Madden snatched money from the hands of the prosecutor and Miller aided him in the transaction. The testimony for the defendants was to the effect that they won the money betting on a mode of drawing certain cards from among a number of others.

<p>1. The city of Savannah is bound to keep such banks or embankments along canals controlled and used by it as a part of its drainage system as will securely keep the waters of such canals within their channels ; and also to keep them open and in such order as to protect the proprietors of adjacent lands, and to do this in such manner as to provide against the changes of weather which .are usual and ordinary at different seasons in that latitude.</p> <p>2. If overflows and consequent damage resulted from allowing grass, weeds, or other obstructions, to remain in the channel of the canal, the city would be liable.</p> <p>(a.) Nor could the city put obstructions in the canal for the purpose of repairing it in such way as to injure proprietors of adjacent lands.</p> <p>3. Extraordinary rain-falls against which the city by the use of care and caution could nut provide, if unmixed with^negligence on the part of the city, will not create any liability for damages from overflows caused thereby. But if the proximate or immediate cause of the overflow was negligence of the city in allowing the canal to become obstructed, the existence of extraordinary rainfalls will not relieve it from liability for damages.</p> <p>4. An exception that the charge of the court as a whole has a tendency to mislead the jury and give them wrong impressions as to the facts proved, and presents wrong-issues, is too general to be considered by this court,</p> <p>5. To show the ownership by another than the city of a part of the bank of a canal is irrelevant, where the damage complained of was not at such place, but at a different portion of the bank, at some distance therefrom.</p> <p>6. The verdict is supported by the evidence.</p>

<p>Evidence. Continuance. New Trial. Deeds. Before Judge HlLLYER. Clayton Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

Evidence. Records. Bonds. Administrators and Executors. Verdict. Non-suit. Charge of Court. Contracts. Before Judge HARRIS. Troup Superior Court. May Term, 1881. This was an action by plaintiffs against W. S. Jackson, administrator on the estate of H. F. Erwin, deceased, as principal, and George Huguley, Reuben Jones and W. H. Huguley as securities upon the administration bond of Jackson, which was on its face for $150,000.00.

<p>Criminal Law. Jurisdiction. Before Judge SNEAD. McDuffie Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

Municipal Corporations. Actions. Damages. Non-suit. NewTrial. Evidence. Before Judge Fain. Whitfield Superior Court. April Term, 1881. Love sued Pruden et al. for damages for pulling down a house of his in the city of Dalton. Defendants pleaded the general issue. On the trial the following facts, in brie.f, appeared: The defendants were the mayor and council of Dalton.

-Husband and Wife. Title. Evidence. Before Judge Pottle. Hancock Superior Court. March Term, 1881. To the report contained in the decision it is only necessary to add that interrogatories of P. T. and E. M. Pendleton were offered for the purpose of showing that Guill, the husband of complainant, went into possession and claimed the.property in dispute as his in 1866 (prior to the application for division and judgment of the ordinary thereon).

Master and Servant. Principal and Agent. Common Carriers. Damages. Negligence. Charge of Court. Before Judge Pate. Pulaski Superior Court. November Adjourned Term, 1880.

<p>A husband may waive the right of homestead in his property as against a certain debt, and his waiver will bind his family, although an application for homestead may at the time be pending.</p> <p>(a.) If the wife joins her husband in the waiver, and is a party to the foreclosure of the mortgage in which it was made, would it not bind her also, aside from the waiver of the husband ? Quaere.</p>

<p>Railroads. Amendment. Demurrer. Before Judge CRISP. Sumter Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where a number of persons living along the line of a railway, running from the main line of a railroad to a granite quarry, operating under charter, and running through the streets of a town with the consent of the council thereof, brought suits against the company for damages resulting from the making of embankments and cuts in the street which ran in front of their property, and from the use of an improper engine, which cast cinders and soot into plaintiffs’ yards and houses, and the running thereof at irregular tinws, a bill by the company to settle the rights of all parties and to prevent multiplicity of suits was not without equity.</p> <p>2. The chancellor did not abuse his discretion in granting a temporary injunction to restrain the damage suits until a trial of the equity cause could be had.</p> <p>(a.) Though the bill was brought only ten days before the trial term of the damage suits, the chancellor relieved the defendants of injury therefrom by requiring, asa condition of the grant of injunction, a consent order to try the case at the next term.</p> <p>(A) Nor did he abuse his discretion in refusing to enjoin the-business of the company until the hearing.</p>

<p>Practice in Superior Court. Contracts. Practice in Supreme Court. Estoppel. Before Judge Stewart. Rockdale Superior Court. February Adjourned Term, 1881.</p> <p>The Stewarts were merchants. Vaughn desired to make purchases of them. They declined to make him advances without security. Zachry, as his landlord, took a lien which he assigned to the Stewarts, and they thereupon made the advances. They foreclosed the lien. Zachry, as a contesting creditor, came in and filed a counter-affidavit denying that the lien existed at all, and alleging that if it did it had been partly paid off. The case went to the superior court by appeal. On the trial the evidence as to the existence of the tenancy and the application of certain cotton towards paying the claim was conflicting. The jury found for the plaintiffs. Zachry moved for a new trial on the following among other grounds:</p> <p>(1.) Because the verdict was contrary to law and the evidence.</p> <p>(2.) Because the court erred in not allowing counsel for Zachry, contesting creditor, to open and conclude the argument, at his request, before the jury, the burden of sustaining said illegality being on said Zachry, contestant. [It appears that the Stewarts assumed the onus and opened and concluded the testimony without objection.]</p> <p>(3.) Because the court refused to' allow counsel for Zachry to prove by him that plaintiffs, the Stewarts, were to make the money out of the first cotton made by said Vaughn on lands rented of said Zachry.</p> <p>(4.) Because the court charged as follows: “ I charge you that if you find from the evidence that the landlord, Mr. Zachry, for the purpose of enabling his tenant to procure supplies with which to make a crop on his (Zachry’s) land, took a lien as landlord from his tenant and transferred the same to the Stewarts, and as a consideration for making such transfer he was benefited in obtaining supplies by the use of which crops were raised and grown on the land of Zachry, then he, Zachry, would be estopped from denying that such lien existed, and if you thus find the evidence to be, your verdict should be in favor of the Stewarts. But how all these matters are it is for you to say under the evidence.”</p> <p>The motion was overruled and Zachry excepted.</p>

<p>1, The power to issue execution against a defaulting county treasurer' was formerly vested in the inferior court, then in the ordinary, and lastly in the county commissioners, in counties where they exist.</p> <p>(a.) Such an execution is issued summarily, and the defendant then has a right to test the questions involved by a trial by jury. A defendant who has had a full and complete trial after the issuance of execution, has no cause to complain that he did not have it before.</p> <p>(A) An execution issued by county commissioners and signed by thei r clerk on their order is good.</p> <p>2. Exceptions to matters of fact in an auditor’s report must be definite and specific. Mere general allegations of error are not sufficient.</p> <p>3. Where after a case had been pending in court for several years on exceptions of fact to an auditor’s report, on the trial it was proposed to add new exceptions, without showing any cause for the delay in offering them, there was no error in rejecting them.</p> <p>4. After an auditor’s, report has been made, ample opportunity for legal exceptions to it given, and no exceptions pf.law made, but only exceptions of fact, or exceptions of law made and overruled, the report is frima facie evidence, and the burden of overcoming it is on the exceptor.</p> <p>5. The burden being upon him who excepts to an auditor’s report,he is entitled to open and conclude unless the other party introduces no testimony, in which case the right of conclusion shifts to him. To cross-examine a witness of the objector, and to continue the cross-examination after a temporary suspension of it by the court, is not the introduction of testimony by the party so cross-examining in such a sense as to affect his right to the conclusion.</p> <p>6. What a county treasurer said on turning over his books for examination to certain persons appointed by the county commissioners for that purpose,, is not admissible in his own favor on the issue of whether or not there was a default by him.</p> <p>7. The rate of interest to be charged upon a given principal is a question of law. Being brought into question by exception to an auditor’s report, it is for the decision of the court.</p> <p>8. The verdict is supported by the evidence.</p> <p>9. The confused state of many of the records sent to this court, the illegible .and unintelligible manner in which they are made up, and the latitude allowed to counsel in having them sent back in the midst of a crowded docket for alteration or correction, call for a remedy. It would be advantageous for the legislature either to permit this court to make and enforce proper rules on this subject, or to remedy the evil by direct legislation.</p>

<p>1. One of two executors, during the month of December, 1868, made application to resign his trust on the ground that he intended to remove from the county, suggesting his co-executrix, who was the widow of the decedent, as a proper person to succeed him. On December 6th, 1868, an order was passed which recited that whereas such application had been made, and whereas (naming her) the “widow, etc., and next of kin of testator aforesaid, has been cited to appear at this term,” etc., and thereupon ordered that the applicant be dismissed upon settling with his successor. There were minor children and legatees:</p> <p>Held\ that the proceedings showed on their face that no proper notice cf the application was given, and the discharge was a nullity; and on a citation for settlement by other legatees than the widow, the record of the discharge was not admissible in evidence.</p> <p>Speer, J., dissenting.</p> <p>2. One issue in a case being whether an executor had settled an individual debt of his with a note belonging to the estate, or with another note belonging to himself, it was competent to prove by the maker of the latter note that he had paid it to the individual creditor of the executor. .</p> <p>(a.) Interrogatories must be sufficiently explicit to indicate to the opposite party the nature of the testimony expected, but they need not .show the use which the party taking them expects to make of the answers.</p> <p>3. Where a charge in writing is,requested, and the presiding judge has not time to prepare it during the trial, an adjournment from one afternoon until the next morning in order to give time for its Careful preparation is not error.</p> <p>(a.) The better practice in such a case would be not to state to the jury at whose request the charge was to be put in writing; but that the court did so state will not necessitate a new trial in this case.</p> <p>4. Unless a request to charge is itself a complete statement of the principle invoked, without requiring addition or alteration to make it perfect, a failure to give it will not require a new trial.</p> <p>(a.) Where there are two or more executors of a will, each is liable for his own acts only, unless by his own act or gross negligence he enables or permits his co-executor to waste the estate.</p> <p>(b.) If one executor, whether intentionally or otherwise, contribute to the devastavit of his co-executor, he will be responsible.</p> <p>5. We cannot say that the jury erred in their finding on the facts of this case.</p> <p>6. In deciding upon the credibility of witnesses, the jury may consider not only their manner of testifying, their intelligence, 'their means of and opportunity for knowing the facts, and their interest or bias, but also their character for integrity and veracity, if known to them.</p>

<p>1. Where the remitter from this court was filed in the clerk’s office below to be entered on the minutes, but was lost before being so entered, if the court below had a certified copy of the full decision of this court, ruling the points in the case and granting a new trial, he could order such certified copy to be spread upon the minutes, and that the case proceed.</p> <p>Jackson, C. J., dissenting.</p> <p>(a.) That an order granting a defendant in a criminal case a first new trial may have been irregularly entered, is no reason why he should-after a second verdict, have still another new trial.</p> <p>2. The charge in this case Was founded on the facts, and was proper.</p> <p>3. The verdict is supported by the evidence.</p> <p>Speer, J., concurred dubitante.</p>

<p>Injunction. Jurisdiction. Before Judge WILLIS. Upson Superior Court. At Chambers. November 11th, 1881.</p> <p>Reported in the decision.</p>

Equity. Practice in Superior Court. Res Adjudicata. Minors. Witness. Evidence. Equity. Deeds. Notice. Volunteers. Before Judge SlMMONS. Bibb Superior Court. April Term, 1881. In addition to the report contained in the decision, it is only necessary to state that the following were among the grounds of the motion for new trial: (1), (2), (3), (4). Because the verdict was contrary to law, evidence and equity. (5).

County Matters. Constitutional Law. Officers. Before Judge HlLLYER. Fulton Superior Court. October Term, 1881. To the report contained in the decision it is necessary to add only the following: In January, 1881, Conley was elected justice of the peace in the 530th district, G. M., of Fulton county.

Criminal Law. Practice in the Superior Court. Witness. Evidence. Husband and Wife. Before Judge Fleming. Chatham Superior Court. March Term, 1881. . Williams was indicted for bigamy. Elizabeth Williams was the prosecutrix. On the, trial she was offered as a witness, and defendant objected , to her. The solicitor-general admitted that she was the person alluded to in the indictment as the lawful wife of the defendant. His counsel objected to her being sworn.

<p>1. A deed of gift conveyed land to a trustee upon the following uses: To the use of said grantor and his wife and the children of her body lawfully begotten by him, to the exclusion of his and their children by any other marriage, during the 'natural [life] of said grantor and wife, and during the natural life of the survivor; and at and from their death this trust to cease, and the property and increase thereof to be equally divided between their children, the issue of their marriage, to the exclusion of all others, with right of representation by the children of a deceased child:</p> <p>Held that the children were joint usees for life with their parents, and at the same time took a vested fee simple estate in remainder.</p> <p>2. The trustee only held title to the life estate, and could not convey the remainder.</p> <p>(a.) Under a conveyance by him the statute of limitations did- not begin to run against the remaindermen until the death of the parents.</p> <p>3. An attempt by the grantor, his wife and the trustee, to divide the propérty and give to the grantor a title to a part of it, could not affect the rights of the remaindermen.</p> <p>4. Isolated portions of the charge excepted .to cannot be intelligently considered in the absence of the entire charge.</p>

Wills. Estates. Title. Husband and Wife. Before Judge HlLLYER. Dekalb Superior Court. March Term, 1881. Jones et al. brought ejectment against Johnson. Both parties claimed under Everett Sapp. In 1845 Sapp made a will, by which, after making specific bequests, he left the residue of his estate to be divided into two shares, one to go to his son, the other in trust for his daughter, Sidney Ann Elizabeth Sapp, and her children for her life, with remainder to her children.

Slander. Actions. Damages. Pleadings. Before Judge HlLLYER. Fulton Superior Court. April Term, 1881. Browne brought suit against Franklin for slanderous words uttered about him.

Certiorari. Courts. Savannah. Practice in Superior Court.- Constitutional Law. Before Judge FLEMING. Chatham Superior Court. March Term, 1881. This case was commenced by attachment issued November 19th, 1880, by a justice of. the peace in the city of Savannah, in favor of a discharged seaman against the owners of the barque “Wild Hunter,” returnable to December term, 1880, of his court.

Biils. Equity. Before Judge Carswell, Chatham Superior Court. April Term, 1881. To the report contained in the decision, it is necessary to add only the following: Mackall, Jr., as assignee of Lawrence, filed a bill in equity against the firm of West Brothers, J. H. Simmer, H. E. Simmer, and the last two named parties (J. H. Simmer and H. E. Simmer) as copartners under the firm name of H. E. Simmer; and the firm of Heard StFulcher.

Courts. Ordinary. Roads and Bridges. Before Judge POTTLE. Elbert Superior Court. March Term, 1881. Fortson filed his petition before the ordinary of. Elbert county to have obstructions removed from a private way claimed across the land of Mattox. On the hearing the ordinary ordered that the obstructions be removed within forty-eight hours. Mattox carried the case to the superior court by certiorari.

<p>Railroads. Stock. Estates. Wills. Before Judge Fleming. Chatham County. At Chambers. September 15th, 1881.</p> <p>To the report contained in the decision, it is only necessary to add the following:</p> <p>About the first of June, 1881, the directors of the Central Railroad passed the following preamble and resolutions :</p> <p>“Whereas, the great depression in all business throughout the country, from the year 1873 to 1877, caused so large a falling off in the receipts of the Central Railroad and Banking Company of Georgia as to render it necessary to withhold for the time all dividends from the stockholders, in order to liquidate outstanding indebtedness, and to make such betterments as a revival of business would certainly demand; and</p> <p>“Whereas, renewed prosperity and strict economy in the management of the company’s affairs and the use of profits withhetd have added to these betterments, consisting of many miles of connecting roads built and purchased, the substitution of steel for iron rails, the purchase of many engines and cars, the establishment of efficient lines of steamships to northern ports, with the requisite wharves, sheds, cotton presses and warehouses, which have added much to the value of the company’s property, by enlarging its working capacity, and by giving increased facilities to the public, as well as much economy in the execution of all business connected with the road; and</p> <p>“Whereas, the stockholders have had nothing to represent their dividends and incomes thus withheld and appropriated; therefore, be it</p> <p>“Resolved, That certificates of indebtedness be issued, bearing date July 1st, 1881, to the holders of stock this day of the,Central Railroad and Banking Company, at the rate of $4.0.00 per share, and to the holders of stock of the Southwestern Railroad at the rate of $32.00 per share; the said certificates to be payable in the currency of the United States, at such time as may be determined on by the board of directors of this company. But no certificates''shall be called in for payment until July, 1891. Interest at the rate of six per cent, per annum shall be paid on the certificates of indebtedness, on the 1st day of January and July of each year, until the date fixed for their redemption ; and notice of such intention to pay shall first be published in one or more of the "public gazettes in Savannah, Georgia, three months in advance of date fixed for such payment.</p> <p>“ Resolved\ That the certificates of indebtedness shall be for $100.00 and the multiples thereof, and when any number of shares shall produce a fraction, that the fraction be paid in cash, or, if the stockholder desires, he shall have the privilege of adding to the fraction a sum of money sufficient to make $100.00, and receive a certificate therefor.</p> <p>“ Resolved, That the certificate of indebtedness shall pass only by transfer on the books of the company, and that the cashier have prepared the necessary books, and that the transfer books be closed durirg the months of. June and December each year, to prepare for the payment of interest due thereon.”</p> <p>Early in the same month (June, 1881,) the following notices were published in the daily papers of the city of Savannah:</p> <p>“NOTICE TO STOCKHOLDERS.</p> <p>“Southwestern Railroad Company, “Macon, Ga., June 4th, 1881.</p> <p>“Dividend No. 55, of three dollars and fifty cents per share, has been declared, and will be paid the stockholders of this company on and after the twentieth instant. Stockholders receiving their dividends in Macon will be paid at the Central Georgia Bank in this city; those at Savannah, at the Central Railroad Bank of that city.</p> <p>“ Also, a dividend of thirty-two dollars per share in certificates of indebtedness, dated July 1st, 1881, has been declared by the directors of the Central Railroad and Banking Company to the stockholders of this company, payable, at the option of said company, after July, 1891, and bearing interest at six per cent, per annum until paid.</p> <p>“ Certificates will be issued in multiples of one hundred dollars; fractions paid in cash, or the stockholder can add to his fraction money enough to make one hundred dollars, and receive a certificate.</p> <p>“Notice will be given hereafter of the time when those certificates will be ready for delivery. W. S. Brantly, ■</p> <p> Secretary and TreasurerS </p> <p>“DIVIDEND NOTICE.</p> <p>“Central Railroad and Banking Company,</p> <p>“ Savannah, Ga., June 1st, 1881.</p> <p>“ A dividend of four dollars per share from the earnings has been declared by the directors on the capital stock of this company, as held this day, payable on and after the twentieth instant. Also a dividend of $40.00 per share, in certificates of indebtedness, dated July 1st, 1881, payable, at the option of the company, after July 1st, 1891, and bearing interest at six per cent, per annum until paid.</p> <p>“ Certificates will be issued in multiples of one hundred dollars; fractions paid in cash, or the stockholder can add to his fraction me ney enough to make one hundred dollars, and receive a certificate.</p> <p>“ Notice will be given hereafter of the time when these certificates will be ready for delivery. T. M. Cunningham,</p> <p> Cashier'S </p> <p>In accordance with these resolutions and notices, John M. Guerrard, as trustee under the will of testatrix, drew from the Southwestern Railroad stock $399.00, cash dividend, and from the Central Railroad stock $160.00, cash dividend, and from the Central Railroad and Banking Company, on account of the stock in both of said roads, certificates of indebtedness as follows: One for sixteen hundred .dollars ($1,600.00), being 40 per cent, on 40 shares of Central Railroad stock, and one for thirty-six hundred dollars ($3,600.00), and $48.00 in cash, being 32 per cent, on 114 shares of Southwestern Railroad stock, being, in all, five thousand two hundred dollars ($5,200.00) in said certificates of indebtedness, and $48.00, fractional part of said scrip dividend, paid in cash.</p> <p>The form of the certificates of indebtedness was as follows:</p> <p>“No. 429. $1,600.00.</p> <p>“CERTIFICATE OF INDEBTEDNESS.</p> <p>This certifies that the Central Railroad and Banking Company, of Georgia, is indebted to John M. Guerrard, trustee under will of Cornelia M. Millen, in the sum of sixteen hundred dollars, payable at the office of the company at any time after the first day of July, eighteen hundred and ninety-one, on giving three months’ notice of its intention to pay in one or more of the public gazettes published in Savannah, Georgia, which sum shall bear interest at the rate of six per centum per annum, payable semi-annually on the first day of January and July in each year, until the expiration of the three months’ notice for the payment of the principal sum, when the interest shall cease.</p> <p>This certificate of indebtedness may be transferred in multiples of one hundred dollars on the books of the company at any time (except during the months of June and December of each year) by the party in whose name it is registered, .in person, or by attorney duly authorized for that purpose.</p> <p>No certificate will be issued for less than one hundred dollars.</p> <p>Wm. M. Wad LEY, President.</p> <p>T. M. Cunningham, Cashier.</p> <p>Savannah, Georgia, July 1st, 1881.</p> <p>A bill was filed by the children of George R. Millen, the life usee, who were the remaindermen under the will of Cornelia M. Millen, the substance of which is stated in the decision. • They alleged the facts stated above, claimed the certificates of indebtedness as part of the remainder, charged that the trustee was -about to transfer them to the life tenant, and prayed injunction to restrain him from so doing, and that they be decreed to be entitled thereto.</p> <p>The trustee answered, praying direction, and the life usee answered, claiming the right to the certificates.</p> <p>Thé chancellor held the life tenant entitled to the property, and refused the injunction. Complainants thereupon excepted.</p>

Municipal Corporations. Constitutional Law. Tax. Debtor and Creditor. Before Judge Snead. Richmond County. At Chambers. September 17th, 1881. Walsh, an owner of real estate and a tax-payer, filed his bill against the city council of Augusta to enjoin the issuing of $400,000.00 of' bonds which they purposed to issue.

Damages. Railroads. Negligence. Charge of Court, Presumptions. Before Judge Willis. Talbot Superior Court. March Term, 1881. To the report in the decision, it is only necessary to add the charge of court, which was as follows: “ This is a suit by W. C. Singleton, against the Southwestern Railroad Company, for damages alleged to have been sustained by him, by the running of the cars of said company.

<p>Practice in Superior Court. Practice in Supreme Court. Damages. Officers. Savannah. Landlord and Tenant. Laws. Actions. Trespass. Before Judge Harden. City Court of Savannah. February Term, 1881.</p> <p>Pausch brought an action against A. G. Guerrard, Emily B. Guerrard, Evelina Guerrard and Thomas A. Folliard, to recover damages for an alleged trepass. The declaration alleged, in brief, as follows: Emily B. and.Evr elina Guerrard were the owners of a store in the city of Savannah,and A. G. Guerrard acted as their agent. Plaintiff was their tenant. During the continuance of this tenancy, on August 5th, 1880, A. G. Guerrard swore out a warrant to dispossess Pausch from the store as a tenant holding over; on the same day Folliard, a constable of Chatham county, notified Pausch of the warrant, and on the next day ejected him from the store.</p> <p>The defendants pleaded the general issue. On the trial the evidence for the plaintiff was, in brief, as follows: Pausch rented the store for a year at a stipulated price per month, in December, 1878, and continued in possession under such contract until August 6th, 1880. In June, 1880, Guerrard leased the premises to one - Reedy, and asked Pausch if he would give Reedy any trouble, to which Pausch replied no — understanding that Reedy’s lease was subject to his. Considering Reedy as the agent of Guerrard, Pausch paid him the rent for July, 1880. On August 5th, Guerrard sued out a warrant to dispossess him, and on August. 6th, Folliard, a constable of' Chatham county, doing business in Savannah, ejected him after twenty-four hours’ notice. He tendered bond with security and a counter-affidavit during the progress of the removal of his goods, but they were rejected by the constable.</p> <p>The evidence for the defendants differed from that for the plaintiff in the following material points: Pausch did not rent by the year, but by the month, and it was expressly agreed that he.would give up possession whenever Guerrard could do better. The latter asked Pausch if he would surrender possession without trouble to Reedy, if Guerrard leased to him, and Pausch agreed to do so. This, was in June, 1880. A few days thereafter Guerrard made a lease for five years to Reedy. Pausch remained in the house during July; no question was raised by him as to being a yearly tenant, but he claimed that his month expired on the 10th and not on the 1st of the calendar month. He would have left if Reedy would have allowed him the rent for July, but this the latter declined to do, and notified him to vacate. The counter-affidavit and bond were tendered after nearly all of the property had been removed from the building; there was no attestation of the bond ; it was again tendered, attested, after the plaintiff in the warrant had been put in possession.</p> <p>The jury found for the defendants. Plaintiff moved for a new trial, on the following grounds :</p> <p>(1.) Because the verdict was contrary 'to the law, evidence, and the charge of the court.</p> <p>(2.) Because the court erred in charging the jury that the three days’ notice required, to be given under the statutes of Georgia to tenants before dispossessing them was not applicable to the city of Savannah, and in charging that, no notice was necessary from the officer to the tenant.</p> <p>(3.) Because the court erred in' charging that Thomas A. Folliard, the constable who executed the writ, was a constable of the city of Savannah, and authorized by law to execute said process,</p> <p>(4.) Because the court erred in charging that if the jury found that there was no time specified for the termination of the tenancy, in that case the law construes it to be a tenancy for a year, and under the custom of the city of Savannah three months’ notice was necessary to terminate the tenancy, there being no evidence of any such custom.</p> <p>(5.) Because the court erred in charging that if the jury found that before the lease to Reedy, Pausch promised Guerrard that in the event he did rent to Reedy he (Pausch) would not delay Reedy, and that Guerrard upon the faith of that promise did lease to Reedy, Pausch would be estopped from violating that promise.</p> <p>(6.) Because the court erred in charging that the bond tendered was not a valid bond under the law governing such cases in the city of Savannah.</p> <p>(7.) Because the court erred in charging that if the jury found that the bond and affidavit were tendered too late, or after Pausch had been dispossessed, or after the officer had removed all the goods he could remove, then in that case the officer did right in rejecting the bond.</p> <p>(8.) Because the court erred in charging that the officer who executed the writ, and Guerrard, the agent of Emily B. and Evelina Guerrard, were not liable to Pausch in damages, and that they were not to be considered in making their verdict.</p> <p>The motion was overruled, and plaintiff excepted.</p>

<p>Practice in Supreme Court. At September Term, 1881.</p> <p>Clay brought an action on account against Elsas, before a justice of the peace, and recovered judgment. Elsas, being dissatisfied, with the judgment, presented his petition for certiorari to the judge of the superior court,, which petition being refused, Elsas excepted, and assigned the same as error. The petition for certiorari does not appear in the bill of exceptions. It is there stated that such a petition was presented on certain grounds, and refused. The record contains what purports to be the petition. It is not identified by the signature of the judge! The clerk in his certificate to the record states that “the foregoing pages contain a true copy of the petition for certiorari, copy account, plea,” etc. On motion the writ of error was dismissed, the court announcing the principles stated in the decision.-</p>

Attorney and Client. Administrators and Executors. Ne exeat. Equity. Before Judge Fain. Bartow County. At Chambers. August 6th, 1881. Conyers, administrator de bonis non of the estate of Felton, filed his bill praying for a ne exeat against Gray.

Charge of Court. Title. Estoppel. Judgments. Before Judge LAWSON. Wilkinson Superior Court. April Term, 1881. A fi. fa. in favor of Parker vs. Brannon was levied on certain land, and Beall interposed a claim. On the trial, the evidence disclosed, in brief, the following facts : Parker’s judgment was rendered sometime prior to 1873. In that year Brannon, being uifeble to pay his debts in money, offered to give up his land to his creditors in payment of their claims.

Tax. Officers. Executions. Mandamus. Before Judge Stewart. Fulton Superior Court. April Term, i88r. During the spring term, 1881, of Fulton superior court, James C. Freeman filed a petition for a mandamus requiring Wm. H. Holcombe, as marshal of the city of Atlanta, to transfer to him a tax fi. fa. issued by said city against John R. Wallace, and which was then in said Holcombe’s hands for collection.

Practice in Supreme Court. At September Term, 1881. Jane Bones, as widow of John S. Bones, petitioned for dower out of real estate in the city of Augusta, of which her husband died seized and possessed. • As .administratrix of said Bones, she instituted an action for rent for one-third interest in said real estate against The National Exchange Bank of Augusta. The defendant filed a caveat and objections in the first case, and plea of general issue in the second.

<p>Trusts. Title. Vendor and Purchaser. Before Judge Pottle. Hancock Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Alibi. New Trial. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>Practice in the Supreme Court. New Trial. Sales. Before JOHN F. DeLacy, Esq., Judge pro hac vice. Pulaski Superior Court. November Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>Equity. Judgments. Service. Before Judge Lawson. Putnam Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where an appeal was entered In due time by an agent under written authority, but such authority was not filed because it was lost, and subsequently the appellant ratified the action, the appeal will not be dismissed. Irregularities in appeals are curable.</p> <p>2. If a security on an appeal bond becomes insolvent after appeal, reasonable time should be given to furnish new security.</p>

<p>A bill charged that an execution was about to be enforced by levy on the property of a debtor; that he induced complainant to purchase the fi. fa., promising to deliver to the latter enough of his crops to pay the debt; that the debtor died, and without any administration, the defendants combined together to defraud complainant, and took possession of the crop (stating what was taken by each) and appropriated it to their own use, refusing to account for the same or pay the debts of the estate, rendering' the estate insolvent; that he had been delayed in levying by the promise of one of the defendants, then in possession of the crop, to comply yvith the contract of the debtor, but that this had not been done. The prayer was for an account and settlement:</p> <p>Held, that there was a complete common law remedy, and the bill was demurrable.</p>

<p>Distress Warrant. Landlord and Tenant. Contracts. Sales. Before Judge HOOD. Terrell Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Evidence. Charge of Court. Verdict. Practice in Superior Court. Before Judge SlMMONS. Bibb Superior Court. October Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>Homestead. Claims. Husband and Wife. Evidence. Bankruptcy. Arbitrament and Award. Jurisdiction. Ordinary. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>1. The grounds of a motion for new trial must affirmatively appear to be correct by a certificate to the motion itself, or by an affirmative recital in the bill of exceptions; otherwise they will not be considered by this court. A statement in the bill of exceptions that the grounds set forth in the motion for new trial were the grounds taken on trial, as stated, was not sufficient.</p> <p>2. A tenant agreed to pay rent in cotton raised on the land. After the crop had been “laid by” he died, and by agreement his widow proceeded to carry out the contract. She had cotton picked and placed in the gin-house of the landlord; the latter had it ginned, packed and carried it to town for her. There, by inadvertence, he left the cotton at the warehouse of a creditor of his, who sought to apply it to his debt to them :</p> <p>Held, that the widow had a right of action for the cotton against the warehouseman. A landlord’s creditor cannot, without consent of parties, take the tenant’s cotton to be applied to the landlord’s debt. (a.) Possession of property under claim of right will give a right .of action against one who unlawfully interferes therewith.</p>

<p>Practice in Supreme Court. Practice in-Superior Court. Homestead. Administrators and Executors. Charge of Court. New Trial. Before Judge Willis. Muscogee Superior Court. November Adjourned Term, x88o.</p> <p>Reported in the decision.</p>

<p>Damages. Municipal. Corporations. Constitutional Law. Before Judge Clark. City Court of Atlanta. June Term, 1881.</p> <p>Reported in the decision.</p>

<p>Possessory Warrant. Practice in Supreme Court. Before Judge Willis. Muscogee Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Heirs at law of a decedent may recover realty of which he was seized at his death as against one who shows no other claim than entry and possession since the death of such decedent, and who has not held sufficiently long to acquire any prescriptive right.</p>

<p>Executions. Judgments. Mortgage. Evidence. Claim. Title. Before Judge WRIGHT. Calhoun Superior Court. September Adjourned Term, 1880.</p> <p>The facts are stated in the head-notes and decision.</p>

<p>1. Where an administrator, who was complainant in a pending case, died, and no party complainant was made in his place for several years, the court did right to put the case on terms, and order that if no party complainant should be rhade by the next term, the case should be dismissed.</p> <p>2. Where a bill was filed in 1859 by an administrator, who died in 1872, and no action was taken therein until the April term, 1880, of the superior court, when the case was put on terms to be dismissed at the October term, unless a party plaintiff should be made, on the call of the case at the April term, 1881 (nothing further having been done up to that time) it was too late for a person who had been sui juris ever since the death of the administrator, and had had ample opportunity to move in the case, to come in and be made a party on the ground that she was the real party in interest, and that the original suit was brought for her benefit, no reason for the delay appearing.</p>

Municipal Corporations. Title. Commons. Laws. Powers. . Railroads. Columbus. Before Judge WlLLIS. Muscogee Superior Court. May Term, 1881. Held: in which shall be submitted the question of connection on the basis of the report of the committee.’ And whereas, in pursuance of said resolution, an election was held at the court house in the city of Columbus, on February 27th, 1858, at which the question of ‘ connection ’ and * no connection ’ was submitted to the people, and a…

Alimony. Husband and'Wife. Jurisdiction. Continuance. Before Judge TOMKINS. Chatham Superior Court. December Term, 1881. Mrs. Annie Louise Campbell, on behalf of herself and her child, five years of age, filed her bill in Chatham superior court against her husband, W'illiarti' Campbell, to recover permanent alimony. She also applied for temporary alimony pending the case for permanent alimony.

<p>Non-suit. Charge of Court. Master and Servant. Damages. Before Judge Clark. City Court of Atlanta. December Term, 1880.</p> <p>Reported in the decision.</p>

<p>If a sheriff violates his duty, and as a result is imprisoned for con. tempt, he cannot recover damages from another, on the ground that he was induced to adopt such line of conduct by the false and fraudulent representations of the defendant and promises to protect him, and by the false representation that a check given in payment for land bought at the sheriff’s sale would be paid. To allow official misconduct to be the basis of a recovery against a coadjutor therein, however guilty the latter might be, would be contrary to public policy.</p>

<p>Contracts. Estoppel. Debtor and Creditor. Before-Judge Simmons. Houston Superior Court. April Term,, 1881.</p> <p>Reported in the decision.</p>

<p>An execution against a sheriff should be directed to the coroner of the county of the sheriff’s residence and to all and singular the sheriffs of the state, except the sheriff of the county of such residence, and the same may be levied by the coroner, other sheriff or constable of the county, at the option of the plaintiff.</p> <p>(a.) The object of this provision is to prevent a defendant from handling a process against himself. While therefore afi. fa. directed to all and singular the sheriffs and coroners of this state was not in exact accord with the statute, the defendant having at its date been a sheriff, yet where it appeared that he had ceased to be a sheriff and that the fi.fa. was levied by his successor, it substantially complied with the statute, and the court properly refused to dismiss the levy on motion.</p>

<p>Evidence. Contracts. Promissory Notes. Before Judge SlMMONS. Bibb Superior Court. April Term, 1881.</p> <p>Powell & Company sued Subers & Massey individually and as a firm, on the following note :</p> <p>“Sparta, ga., December 15th, 1876.</p> <p>On the first day of December, 1877, we, or either of us, promise to pay L. Powell & Company, or bearer, one hundred and eighty-three dollars and sixty-five cents, with interest from January 1st, 1874.</p> <p>This note is given in consideration of the indebtedness of S. D. Massey to L. Powell & Company, which we hereby assume.</p> <p>(Signed) Massey & Subers.</p> <p>Amos A. Subers, Orren E. Massey.”</p> <p>Defendants pleaded the general issue, and a special plea of failure of consideration.</p> <p>The latter plea was to the effect that S. D. Massey owed Powell & Company, and defendants owed S. D. Massey; that the indebtedness of Massey to Powell & Company was evidenced by a note ; that defendants gave the obligation sued on for the accommodation, and at the request of plaintiffs, and that as the consideration thereof the note of Massey was to be transferred and delivered to them; that this was not done, but they were compelled to settle their debt to Massey without deduction ; that he has left the state and is insolvent, so that a delivery of the note would now be useless; that the consideration of their note had therefore failed.</p> <p>■ On motion the court refused to strike this plea. The same point was raised by objection to evidence and exceptions to the charge of the court.</p> <p>The jury found for the defendants. The court refused a new trial, and plaintiffs excepted.</p>

<p>1. When the sheriff seizes property under a Ji. fa., if he turns it over to the defendant to keep, he does so at his peri!; and- this applies as well to a mortgage ft. fa. as to a ft. fa. founded on a general judgment.</p> <p>2. In such case the sheriff is not entitled to fees for watching -and guarding the property until the sale, and hence cannot transfer any right to such fees to defendant in ft. fa.</p> <p>3. If the defendant, in caring for such property, has incurred necessary expenses, without making any profit, equity will allow him such actual expenses ; but it will not allow him more on the ground that the fees of the sheriff, had he held possession, would have been more.</p> <p>(a.) - Even if- equity would ordinarily allow such fees, it will not do so where the property sells for much less than the amount of the ft. fa. In that event, it will apply the fees so acquired as a credit on the ft. fa.</p>

<p>Injunction. County Matters. Tax. Commissioners. Before Judge Underwood. Floyd County. At Chambers. November 30th, 1881.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Jurors. Evidence. Witness. Practice in Superior Court. New Trial. Before Judge SIMMONS. ..Bibb Superior Court. April Term, 1881.</p> <p>Thomas was indicted for the- murder of one Nancy Dykes, alias Puss Edge. On the trial the following facts, in brief, appeared from the testimony:</p> <p>The defendant and deceased had lived together as husband and wife for a considerable length of time, and he staid almost nightly at her house. She became jealous of his attentions to another woman, and quarrels ensued, in the course of which he struck her and threatened to kill her. On the night of the homicide he had not returned home up to bed time, since early in the evening. She looked out of the house, and saw two people standing in an alley which ran nearby. She said, “Yonder stand two persons at the corner of the lot; it looks like Harp'Thomas and his sweetheart, I think; and I am going to see if it is them, and am coming back right away to the house.” She went towards the couple, who separated and moved off in opposite directions. About the same time a witness testified to hearing defendant and deceased (at least he felt quite confident it was they) talking in angry tones in the alley. Defendant stated to a witness that night that he had separated from his wife (meaning the deceased). He did not return home that night, but went to the house of another woman, where he sat before the fire and nodded. She told him to lie down with the children, but did not know whether he did so, as she went to sleep leaving him sitting there, and when she woke early-next morning he was putting on his shoes. He went to work unusually early next morning, without going home and without breakfast, dressed too in other than his usual working garb.' A stick which he left at the house where he staid showed stains apparently of blood. The deceased never returned to her house after-leaving it as stated above. Next morning she was found dead a-short distance down the alley with her throat cut and a contusion on the side of her head, as though she had been struck.</p> <p>The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved for a new trial, on the following among other grounds:</p> <p>(i.) Because the court overruled a challenge to the ar: ray of jurors, on the ground that many names of citizens were not in the jury box that should be there, and that the names of only very few colored men were on the jury list. (Affidavits pro and con were produced.)</p> <p>(2.) Because the solicitor-general was allowed to swear the state’s witnesses and place them on the stand, over objections of defendant’s counsel.</p> <p>(3.) Because the court allowed a witness, over objection of defendant’s counsel to testify to what deceased said just before leaving her house, as set out in the evidence above.</p> <p>(4.) Because the court allowed a witness who found the defendant’s stick in the house where he had staid the night of the murder, it being found the next day, to testify that it had stains upon it which looked like blood, the witness not being an expert.</p> <p>(5.) Because the court admitted the stick itself in evidence.</p> <p>(6.) Because there was no proof of the corpus delicti.</p> <p>(7.) Because the verdict was contrary to law and evidence.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Evidence. Administrators and Executors. Guardian and Ward. Statute of Limitations. Charge of Court. Confederate Money. Verdict. Before Judge Snead. Burke.Superior Court. May Term, 1880.</p> <p>Julia W. Hayne, individually-and as guardian of Mary Anderson, moved three rules in the court of ordinary against Edmund Byne for settlement — one against him as guardian of Mary Anderson, one as administrator de bonis non on the estate of James Anderson, Jr., and the other as administrator de bonis non of Moses P. Anderson.</p> <p>The rules being tried in the court of ordinary, an appeal was taken to the superior court.</p> <p>On the trial on appeal the three rules were, by order, consolidated and tried together.</p> <p>These facts appear from a sort of condensed statement in the record, there being no copy of the rules themselves. As far as can be ascertained from the confused record in this case, these rules were in part at least in the nature of actions of devastavit, and the principal points therein were the mismanagement of the estates, and receiving Confederate money during the war, without accounting for it to the estate and when it was imprudent to receive it. On the material points the evidence was conflicting.</p> <p>Mary Anderson seems to have been interested in each of the estates sought to be settled, but how much her interest amounted to is very difficult to understand from the record, if, indeed, it be possible. Mrs. Hayne was appointed guardian of Mary Anderson in June, 1869; these rules were taken out in December, 1871, and Mary Anderson became of age in 1874.</p> <p>The jury found for Mary Anderson alone $4,500.00. Defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the court erred in ruling-out and excluding as testimony before the jury the annual returns and vouchers of Edmund Byne, as administrator de bonis non of James Anderson, Jr., deceased, for the years 1863, 1864, 1865 and 1868 ; the annual returns and vouchers of said Edmund Byne as administrator de bonis, non of Moses P. Anderson, deceased, for the same yearsand the annual returns and vouchers of said Edmund Byne as guardian of Mary Anderson for the yeárs 1863, 1864, 1865 and 1869. (The testimony of defendant's counsel was that said rejected returns had been each of them annually made before the first day of July of each year ; that they had remained of file in the ordinary’s office until the commencement of this suit, when théy were taken therefrom, and remained in possession of counsel respectively on each side.)</p> <p>(2.) Because the court erred in charging the jury as follows : “ If you find from, the evidence that Miss Mary Anderson was a minor before June 1st, 1865, then the plea of the statute of limitations does not apply to her. Her cause of action did not accrue until she became of age, and if she became of age after June 1st, 1865, the statute of limitations as pleaded is of no force in this case, and hence the question of moral fraud by the defendant is not ■for your consideration.”</p> <p>(3.) Because the court erred in charging the jury as follows : “ If you find that Mrs. Háyne sued the defendant for the recovery of her property by or on January 1st, :187o, in the superior court, and afterwards commenced the present suit for the same purpose in'the court of ordinary, and after commencing this suit, dismissed the former one, then the statute of limitations does not apply to her, for the reason that she commenced her suit by the time required by law.” ■</p> <p>(4.) Because the court erred in charging the jury as follows : “ A guardian is bound by the law, and he is responsible for any loss that may result by failure to follow the law. It matters not how morally honest he may be, if he fails to follow the law, he is liable for any loss that may result therefrom,”</p> <p>(5.) Because the court erred in charging the jury as follows : “ This being a suit against the defendant as guardian, charging him with a devastavit, he is not entitled to deduct attorney’s fees out of the trust fund for defending ‘this suit.”</p> <p>(6.) Because the court erred in charging as follows: “ Although the guardian may have received Confederate money in good faith as a prudent man, yet; unless he shows affirmatively that he- kept that very same money separate and apart from", his own individual funds, he is liable to the ward for the value of the money at the time he received it.” ■</p> <p>(7.) Because the court erred in charging the jury as follows: “ If you find fróm the evidencé that Moses P. Anderson was the child of Mrs. Hayne (formerly Anderson), and that he died while the mother was not a widow, and she had other children then living,, thén Mrs.'Hayrie does not inherit any of the estate of Moses P. Anderson.”</p> <p>(8.) Because the court ‘erred in charging the jury as follows : “ If you find from the evidence that Mr. Byne did not make his returns according to law, and that they were not examined, approved and ordered recorded by the ordinary, then Mr. Byne is not entitled to any commissions on his returns. The papers are not admitted to you as legal returns, but simply as memoranda and receipts, to which Mr. Byne referred in his testimony.”</p> <p>(9.) Because the court erred in refusing to charge the jury, at the request of counsel for the respondents in writing, as follows: “That if the jury find from the evidence that Miss Mary Anderson was represented by a guardian other than the defendant prior to the first of January, 1870, she cannot recover in this suit for any mismanagement of her interest prior to June 1st, 1865, unless it shall appear that defendant was guilty of actual fraud, actual intentional wrong doing, willful and corrupt dealing; but only for an omission of duty, he cannot be held responsible in this suit, if this suit was not brought before the first day of January, 1870, so far as Mrs. Hayne, one of the plaintiffs, is concerned, as to any mismanagement prior to June 1st, 1865.”</p> <p>(10.) Because the court erred in its general charge to the jury, as follows : “ The statute of limitations does not apply to her (Mary Anderson) if she was a minor on the first day of January, 1870, or if she was a minor before the first of June, 1865. For, in the first place, if she was a minor in 1870, she could not sue in her own name by the first of January, 1870, and even in the latter case her right of action did not accrue till after June 1st, 1865, if she was a minor at that time and subsequently became of age ; and her right of action is not barred by the statute of limitations for any mismanagement of these estates which may have occurred before or after 1865.</p> <p>(11.) Because the court erred in admitting in evidence, over the objections of respondents’ counsel, the suits of E. F. Lawson, ordinary Burke county, for use ; Julia W. Hayne, guardian, vs. Edmund Byne, principal, and John S. Byne, secretary; and E. F. Lawson, ordinary Burke county, for use of Julia W. Hayne, guardian Mary Anderson, vs. Edmund Byne, principal, and John S. Byne, security, the purpose of said evidence being to show that the present cause of action, although accruing prior to June 1st, 1865, was sued upon on or before the first day of January, 1870, and thereby relieved the present suits from the bar of the statute of limitations of 1869.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>1. The county board of education is a court of limited jurisdiction, and before they can try an application for an order to pay money to a-teacher, it must appear that the account has been audited by the county commissioner,</p> <p>2. There being no evidence on which a verdict could be founded in this case, a non-suit was properly awarded.</p> <p>(a..) For a refusal by a county school commissioner to audit a claim, mandamus will lie to compel him to do so. '</p>

<p>justice Courts. Jurisdiction. Judgments. Before Judge Fleming. Chatham Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>Practice in ■ Supreme Court. Administrators and Executors. Title. Vendor and Purchaser. United States Courts. Comity. Before Judge SNEAD. Burke Superior Court. November Term, 1881.</p> <p>Reported in the decision.</p>

<p>Justice Courts. Service. Jurisdiction. Before Judge Fain. Bartow Superior Court. July Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. The grant of power in the charter of a municipal corporation “ to tax all property, real and personal, within the corporate limits of the city,” will not be construed to include the taxing of its own bonds in the absence of express authority for that purpose.</p> <p>(a.) If such express authority were given, would it be valid ? Qucere.</p> <p>2. There was no abuse of discretion in granting an injunction in this case.</p>

<p>Practice in Superior Court. Notice. Promissory Notes. IFraud. Verdict. New Trial. Before Judge Snead. .McDuffie Superior Court. March Term, 1881.</p> <p>Wilson & Co. brought their suit to March term, 1880, of McDuffie superior court, against Thomas A. Hamilton, on a promissory note, dated May 9th, 1879, and due the first of November following, for the sum of $229.60, payable to the Atlantic and Virginia Fertilizing Company, or order, the consideration being for 6,804 pounds of commercial fertilizer, known as the “ Eureka ” guano.</p> <p>The defendant filed the following pleas :</p> <p>(1) Failure of consideration — that the guano was worthless, and not reasonably suited to the use intended.</p> <p>(2.) That R. T. Wilson & Co., the plaintiffs, were not .bona fide holders of said note sued. on.</p> <p>The plaintiffs introduced in evidence the following original note, and closed:</p> <p>“Georgia, McDuffie County, May 9, 1879.</p> <p>$229.60.</p> <p>On the first day of November next, I promise to pay to the Atlantic arid Virginia Fertilizing Company, or order, two hundred and twenty-nine 60-100 dollars, with interest, after maturity, at twelve per cent, per annum, for value received, in 6,804 pounds of commercial fertilizer, known as Eureka, delivered to me, which has been legally inspec-r ted and tagged. I have the option of paying this note in middling cotton at the rate of fifteen cents per pound, provided I deliver the same to Dr. E. S. Harrison, at Thomson Depot, on Georgia Railroad, ginned, baled, and delivered in merchantable order, on or before the first day of November, 1879, but not otherwise.</p> <p>In witness whereof, I have hereunto set my hand and seal, this the ninth day of May, 1879. T. A. Hamilton, [l.s.]”</p> <p>Upon the back of said note appeared the following, to-wit:</p> <p>“For value received, we hereby assign the within note to R. T. Wilson & Co.</p> <p>Atlantic and Virginia Fertilizing Co.</p> <p>S. D. Crenshaw.”</p> <p>Defendant then introduced interrogatories of S. D. Crenshaw, taken by plaintiff.</p> <p>Witness resided in the state of New Jersey; knew R. T. Wilson & Co., and was a clerk in the office of Atlantic and Virginia Fertilizing Co., and in 1879 confidential clerk; recognized original note sued on, attached to the interrogatories, and made the transfer indorsed on the back, of said note in August, 1879;' was authorized to do so by board of trustees of the Atlantic and Virginia Fertilizing Co., by a resolution of the board. A certified copy of resolution he attaches to his interrogatories, marked Exhibit A, which is as follows:</p> <p>“At a called meeting of the board of trustees of the Atlantic and Virginia Fertilizing Company, held at the company’s office, July 2,1878, at 1.30 o’clock, P. M., it was, on motion,</p> <p>“Resolved, That S. D. Crenshaw, in addition to the regular officers of the Company, be authorized to indorse said paper over to R. T. Wilson & Co.”</p> <p>The “ said paper ” referred to in above resolutions, were sundry papers held by the Atlantic and Virginia Fertilizing Company from the states of North and South Carolina, Georgia and Alabama. Witness says that authority has been continued to present time. Title to note was actually transferred and absolutely belonged to R. T. Wilson & Co. Note was sent for collection by R. T. Wilson & Co. to Harrison, agent at Thomson, Ga.; receipt acknowledged to R. T. Wilson & Co., September u, 1879; receipt attached to interrogatories.</p> <p>The Atlantic and Virginia Fertilizing Company is a joint company, under laws of State of New York. R. T. Wilson & Co. were stockholders in said company in 1879, and are now. The company manufactures the Eureka guano, and other brands. Date of transfer to the note was not attached, because that was the custom of the company.</p> <p>Defendant, Hamilton, testified as follows:</p> <p>Harrison, agent at Thomson, wrote me that he would sell me the Eureka guano; that it was as good as the best, and had a fine analysis. I took the guano, and when I got ready to apply it, first discovered that it was in a hard, caked condition, and old guano. Wrote agent that sacks were short of weight, and that I was dissatisfied with the guano, and would not haul the remaining sacks from depot (eight in number), and would not have bought it if I had known it was old stock; that I would give it a thorough test and analysis, and that payment would depend upon its merit. The note was given under this agreement. The waiver of guaranty was erased, with the statement that there would be no dispute if the guano proved to be good. The agent said he was. satisfied of that fact, or he would not take such a note. The test was made in excellent land, prepared in the best manner, well worked and never grassy; seasons tolerably good ; a short drouth in July. Test was made in accurately measured rows, at rate of 210 pounds of guano to the acre. ^In. rows where there was no guano the yield of cotton was as great or greater than in rows where guano was applied ; guano was wholly worthless as a fertilizer; was hard, and had lost 40 pounds to the sack. As analyzed by the state chemist, it showed a loss in soluble phosphoric acid about 30 percent., and loss of ammonia about 28 per cent. Analysis I had made was above the minimum allowed by law, but not equal to the value claimed by the agent. Agent allowed the deficiency in weight; saw the note sued on in October, 1879, in agent’s possession; said it had never been out of his possession; showed me the note; did not see that it had been transferred; don’t think it had been; didn’t examine it closely, owing to statement of agent that it had not been out of his possession ; think I would have seen transfer, if it had been made.</p> <p>A. H. Sturgis, sworn for defendant, said:</p> <p>Saw defendant’s growing crop in summer of 1879; land was well worked, and no grass to injure crop; saw no difference in height of cotton in rows where guano was used and where no guano was used; could only find test rows by stakes.</p> <p>Dr. E. S. Harrison, sworn for plaintiffs, said :</p> <p>Was agent for Atlantic and Virginia Fertilizing Co', in 1879, ancl s°ld the guano to defendant; took note and forwarded it to the. company before due, and it was returned tome in September, 1879, by R. T. Wilson & Co.* with transfer on back of it; don’t remember that I told defendant the guano was old stock or not; did not tell defendant in October, 1879, that I had never parted with possession of the note; when I sent the note to the company, it was not transferred; the guano which defendant refused to take was sold and paid for; I received the printed form of note s.ued on from the company; am not now agent for the guano, and there is no other agent that I know of in town. Some people prefer old stock to new, because they don’t pay for moisture when guano has been well protected from weather. I considered it equally as good.</p> <p>Two letters from Dr. Harrison, agent, to defendant, were introduced by defendant. The first, under date of March 10, 1879, recited that the guano was good ; had a fine analysis, and he could recommend it as being as “good as the very best.” The second letter, dated May 1, 1879, admitted that the guano was old stock from last season; that defendant could have it analyzed, and that if it did not come up to the standard, the company would not claim any pay for it.</p> <p>The jury, under the charge of the court, returned a verdict for the plaintiff, and defendant moved for a new trial, on the following grounds.:</p> <p>(i.) Because the verdict is contrary to the evidence, contrary to law and the weight of evidence.</p> <p>(2.) Because the court erred in ruling that defendant’s counsel could not comment on the erasures made on the face of said note, for the purpose of showing that by said erasures plaintiffs were put on notice as to the consideration of said note, nor could the defendant’s counsel so comment for the purpose of showing the understanding of the parties to the contract at the time of the execution of .the noté, and at the time said erasures were made.</p> <p>(3.) Because the plaintiffs, by being stockholders in the Atlantic and Virginia Fertilizing Company, were original owners of note, and were not bona fide purchasers without notice.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>1. A deed made by a trustee with the assent of the sole beneficiary, who was sui juris, was good ; and though made to secure a debt, passed the title.</p> <p>(a.) The assent of the beneficiary being on the deed, and part of it, was property recorded with it, and being in writing, is sufficient evidence of her consent to the sale.</p> <p>2. A deed to secure a debt passes the legal title, and will authorize a recovery in ejectment.</p> <p>3. That the holder of a deed to secure a debt, under section 1969 et seq. of the Code, recovered- judgment, and made and filed a deed to the debtor for the purpose of levying on the land, did not pass the title back to the debtor. It was a mere escrow except for the purpose of levy and sale.</p> <p>(a.) This was not altered by the fact that the debtor obtained the deed from the clerk’s office without the knowledge of the creditor by paying recording fees therefor; and parol testimony was admissible to show such fact.</p> <p>4. Semble, that suing to judgment the notes to secure which the deed was given would not bar an action of ejectment on the deed ; and that the pendency of an affidavit of illegality to a levy under a judgment so rendered would not be good as a plea in abatement. The proper equitable defense is to pay the debt and demand a reconveyance.</p>

Trover. Actions. Damages. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1880. McCall brought trover against Dykes for a cotton screw. Defendant died, and his executrixes were made parties. On the trial it appeared that plaintiff’s son bought the screw, and had it put up on certain land held by him; that it was erected as a fixture; that plaintiff had bought the land with the screw on it; that Dykes had carried it away taking down the iron portions.

Dower. Wills. Before Judge Stewart. Newton Superior Court. March Term, 1881. On the sixth day of September, 1878, Hardy Watford, of Newton county, Georgia, made and published his last will and testament as follows: “ Newton County, Georgia, September 6th, 1878. Articles of agreement between H. Watford of the first part, and Elizabeth R. Harris of .the second part.

<p>In a criminal case the prisoner has the right to be present in person throughout the trial. Therefore, for the judge tore-charge the jury while the prisoner was absent and in confinement, although his counsel may have been present and kept silent, was error.</p>

Practice in Superior Court. Judge pro hac vice. Justice Courts. Amendment. Charge of Court. Onus probandi. Before W. C. WINSLOW, Esq., Judge pro hac vice. Crawford Superior Court. March Term, 1881.

<p>Certiorari. Justice Courts. Attorney and Client. Jurisdiction. Judgments. Before Judge Harris. Pike Superior Court. April Term, 1881.</p> <p>Fambro sued Ware upon a note in a. justice court. Ware pleaded the general issue, payment and set-off. "On the appeal, the jury found for Ware $173.76. When this verdict was read in court, counsel for Ware obtained leave of the court to write off from the principal sum of said verdict all exceeding $100.00, and did so, and entered judgment against Fambro for $100.00 principal, without objection from any source. Counsel for Fambro then sued out a certiorari to the superior court, though such counsel did not try said cause, nor was he present at such trial.</p> <p>When the case was tried in the superior court, a motion was made to dismiss said certiorari, upon the ground that the notice served was insufficient. The notice stated that the judge of the superior court had granted the certiorari. The motion was refused, the cause was tried upon its merits, and after argument by counsel for both parties, the court sustained the certiorari and ordered a new trial. Ware excepted.</p>

<p>1. A mortgagee and vendee is estopped from denying title to goods in the vendor and mortgagor under whom he claims.</p> <p>2. A sale of the'wife’s goods to the creditor of the husband to pay the debt of the husband is void.</p> <p>3. Though the consideration of the sale be in part to pay the wife’s own debt, yet if the portion of the goods so sold be not severable ■ from the rest sold to pay the debt of the.husband, the title to none will pass to the vendee.</p> <p>4. In an action of trovér the issue is title, and though a money verdict be elected to be taken by the plaintiff, the measure of damages is the value of the property, and in order to recoup against such damages • a counter claim of defendant founded on the part consideration of ■ the sale which was .lawful — it being the individual debt of the wife— there must be pleadings to that effect.</p>

Service. Jurisdiction. Waiver. Attorney and Client. Practice in Superior Court. Before Judge HlLLYER. DeKalb Superior Court. March Term, 1881. An execution issued from the superior court of DeKalb County in favor of Potts against Cox, and was levied upon property of the defendant.

<p>1. A prescriptive title, by virtue of adverse possession under color of title for seven years will prevail against the lien of a judgment against the vendor of such claimant rendered before the prescription began, but with no levy on the property until after the prescriptive title had ripened.</p> <p>(a.) The fl. fa. was issued in 1857 ; one of the defendants in fi.fa. conveyed certain land in 1859, which has been held adversely ever since by the vendee and those claiming under him; the levy was made in 1868:</p> <p>Held, that the Code substituted title by prescription for the statute of limitations as to realty; and therefore in computing the time within which prescription ripened, it ran from the conveyance and taking possession until the statute of limitations was suspended, November 30th, 1861; it then ceased to run until the adoption of the Code, when it began to run again in the form of prescription.</p> <p>2. Where a ft. fa. was lying idle, and a bona fide purchaser bought land from the defendant and held actual adverse possession, although a levy may have been made after this possession began, it did not stop the running of the purchaser’s prescription until some notice thereof to him.</p> <p>3. Proof that a purchaser bought for value from a defendant in ft. fa. raises a presumption of good faith, and if it is desired to rebut this presumption by proof of actual notice of the judgment, the onus of proving such fact is on him who asserts it.</p>

<p>1. If a mortgage creditor contracts with his debtor not to enforce his mortgage within a given time, but subsequently does so, and levies on the property of the debtor, the latter has a right to sue for the actual injury occasioned him thereby, without alleging malice or want of probable cause.</p> <p>2. A right of action exists in all cases of malicious abuse of legal process, or its use without probable cause. In such cases punitive damages may be added to the actual damage sustained.</p> <p>3. If a creditor who has contracted not to enforce his claim within a stated time nevertheless does so, and causes the property of the debtor to be seized and held under process based on such enforcement, he may be sued by the debtor for the damages resulting from such seizure and detention of his property,</p> <p>(a.) Although one may have the right to enter on the land of another for a lawful purpose, yet if he exceed his authority, he is liable for consequential damages arising therefrom in an action of trespass guare clausum fregit.</p> <p>4. The evidence in this case made a prima facie case, and should have been submitted to the jury,</p> <p>5. In an action for damages for the wrongful seizure and sale under color of legal proceedings of a tradesman's stock, while profits which he was making may not be recovered as such, yet their amount may be proved and considered by the jury as a fact'in estimating the magnitude of the injury done,</p> <p>6. Generally counsel fees do not form a part of the damages recoverable in actions for tort, but if the defendant has acted in bad faith or been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, they may be- allowed by the jury, and may be proved for that purpose.</p>

<p>Partnership. Contracts. Before Judge STEWART. Talbot Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>Wills. Legacies. Title. Prescription. Practice in Superior Court. Minors. Before Judge Fleming. Chatham Superior Court. June Term, 1881.</p> <p>Reported in the decision.</p>

<p>Costs. Officers. Practice in Superior Court. Before Judge SlMMONS. Bibb Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>Equity. Trade Mark. Before Judge HlLLYER. Fulton County. At Chambers. November 18th, 1881.</p> <p>Reported in the decision.'</p>

<p>Laws. Jurisdiction. Penitentiary. Injunction. Before Judge Hillyer. Fulton County. At Chambers. October 15 th, 1881.</p> <p>Reported in the decision.</p>

Criminal Law. New Trial. Before Judge ERWIN. Clarke Superior Court. May Term, 1881. Partee was indicted for burglary. The testimony for the state showed that a store was burglarized and goods taken therefrom ; also that the defendant confessed having committed the burglary to a fellow prisoner while in jail. A confessed accomplice also gave a detailed history of the entire transaction.

<p>Judgments. Nullities. Jurisdiction. Claims. Service. Practice in the Superior Court. Before Judge Simmons. Houston Superior Court. April Term, 1881.</p> <p>This was a claim case submitted to the presiding judge to be decided without the intervention of a jury, on the following agreed state of facts ;'</p> <p>The writ was filed and process issued July 25th, 1866, to August term, 1866, Houston superior court, which convened August 20th, 1866. The following was the entry of service</p> <p>“ Served each of defendants personally with a copy of this writ, August 6th, 1866. John Smith, Sheriff,</p> <p>Defendants did not appear or plead. At the trial terni there was a regular verdict and judgment, upon which a fi. fa. issued, and was levied upon the lands of defendant’s intestate, which were claimed by the widow of defendant’s intestate as a homestead assigned her under the constitution of 1868. The property levied on comprised the whole estate of defendant’s intestate. On the trial the presiding judge found for claimant, and a judgment was entered. Plaintiff made a motion for new trial on the sev-. eral grounds of the verdict being contrary to law and the evidence, and excepted to the judgment refusing it.</p>

<p>Administrators and Executors. Debtor and Creditor.. Liens. Before Judge Willis.. Marion Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>Where the clerk failed to attach any process to the declaration, and it was served alone, it was not competent to amend at a subsequent term by attaching process and ordering service.</p>

<p>Ejectment. Evidence. Title. • Practice in Supreme Court. Charge of Court. Verdict. Before Judge WlLLIS. Muscogee Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>The act of 1875 does not divest the ordinary of his discretion in granting or refusing a license to retail liquor. That act merely imposes additional requirements upon the applicant, leaving in the ordinary the power to grant or refuse a license.</p>

Judgments. Service. Attorney and Client. Evidence. Waiver. Nullities. Before Judge SNEAD. Washington Superior Court. March Term, 1881. To the report contained in the decision it is only necessary to add the following confession of judgment, which appeared upon the minutes of the inferior court: “ We confess judgment to the plaintiff in the sum of six hundred and thirty-seven dollars principal, with costs of suit, reserving the right of appeal.

<p>1. One who purchases land with notice that the same is subject to the lien of a judgment at the time of the purchase, is not such a bona fide purchaser as the law will protect by four years' possession.</p> <p>2. The charge of the court was based on the evidence.</p> <p>.3. Possession which will displace the lien of a judgment must be open and notorious, in good faith and exclusive.</p> <p>(a.) If one who was not entitled to protection under the four years’ statute claims to have held for another who could claim such protection, he should have done so openly.</p> <p>4. If a levy was made on land within four years of its sale by the defendant in ft. fa.., but the sale did not take place until after the expiration of the four years, the proof accounting reasonably for the delay, then the possession can only be counted in favor of the purchaser up to date of levy. Especially so where the purchaser or his agent was instrumental in causing the delay in selling.</p> <p>5. A request unauthorized by the evidence should not be given in charge.</p> <p>6. To make possession such as will displace the lien of a judgment some sort of notice of the adverse possession should appear, or at least such circumstances as to put the plaintiff va.fi. fa. on inquiry.</p> <p>7. Where one party makes a witness of his adversary, relying upon what the latter had sworn at a former trial of the case, and is entrapped by the witness changing his testimony, such witness may he impeached by him.</p> <p>8. On a second trial of a case, a brief of evidence agreed upon at a former trial is admissible for the purpose of impeaching a witness, the proper foundation therefore being first laid.</p>

Evidence. Principal and Agent. Charge of Court. Contracts. Before Judge SNEAD. Richmond Superior Court. April Term, 1881. The plaintiff stored a quantity of wheat in the grain elevator of the Georgia Railroad, and took a receipt therefor, “subject only to the order hereon of Holman & Woods upon the surrender of this receipt”’ The wheat was delivered to Barnes upon his surrender of the receipt not indorsed by the plaintiffs.

Trusts. Practice in Superior Court. Practice in Supreme Court. Before Judge WILLIS- Chattahoochee Superior Court. March Term, 1881.

<p>1. A declaration which set out a promise by defendant to put plaintiff in possession of a certain farm, “on or before” the 25th day of December, a demand therefor on December 17th, and refusal to deliver, resulting in damage to plaintiff, was demurrable.</p> <p>2. Before a refusal by the judge to allow amendments can be aground of error, it must appear that such amendments were properly proposed and that they were refused. Where it did not appear that the court knew what amendments were proposed to be made, there will be no reversal for not allowing them'.</p>

Witness. Judgments. Administrators and Executors. Attorney and Client. Before Judge HÓOD. Terrell Superior Court. May Term, 1881. A suit was pending in Terrell superior court in favor of Turner vs. Reviere. The defendant died, and Jordan became his administrator. Parks and Wooten had been the attorneys of the intestate, the former having more particularly the charge of the case. During the first year of the administration the administrator was made a party.

Ejectment. Amendment. Administrators and Executors. Prescription. Actions. Vendor and Purchasers. Title. Before Judge Fleming. Dougherty Superior Court. April Term, 1881.

<p>1. A possessory warrant may be had in any county where the property to be recovered is found. It is not such a civil case as must be brought in the county of the residence of the defendant,</p> <p>2. We cannot say that the judge erred in refusing a certiorari in this case.</p>

<p>Municipal Corporations. Damages. Negligence. Non-suit. Before Judge HlLLYER. Fulton Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Under §2781 of the Code, to bind an indorser on bankable paper, the notice to him must show not only demand and refusal to pay. but also the protest of the note for non-payment.</p> <p>2. Whether a failure on the part of the presiding judge to make his charge more explicit was error or not, would depend on its legality as given.</p> <p>3. Although the court was requested to deliver a written charge, yet where counsel verbally called attention to an ambiguity and asked its correction, and thereupon the court asked them whether a verbal explanation would do, or whether a written correction should be made, and they assented to an oral explanation, that it was so given is no ground for a new trial.</p> <p>4. Where several pleas are filed by a defendant, a verdict in his favor should show on which plea it is rendered; and upon objection to a general verdict for the defendant, the jury will be .required to retire and amend their verdict so as to show this. But if a general verdict for the defendant be returned, received and recorded without objection, it will not be a ground for new trial that it fails to specify on which plea it rests.</p> <p>5. The verdict is supported by the evidence.</p>

<p>Evidence. Pleadings. Bonds. Contracts. Jurisdiction. Equity; Before Judge CLARK. City Court of Atlanta. June Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where a defendant in a criminal case before a county court waived his right to indictment, but demanded a jury to try him on accusation, after his waiver had been made matter of record, a jury drawn, and at the trial term a motion to continue made and overruled, he could not withdraw his waiver of indictment/</p> <p>2. Exceptions taken in a petition for certiorari to alleged rulings of a county court which are not verified in the answer, cannot be considered in this court on exception to a refusal to sustain the certiorari.</p> <p>3. Where a request to charge was made orally, and the substance of the request was given, a new trial will not be granted because the exact language of the request was not used.</p> <p>4. The distinction between positive and negative testimony may be illustrated thus: It is positive to say that a thing did or did not happen ; it is negative to say that a witness did not see or know of an event’s having transpired.</p> <p>5. If the answer of a county judge to a certiorari is not sufficiently full, the point should be made in the court below, and a ruling in that court invoked upon it; otherwise it will riot be considered here.</p>

<p>The circumstances, acts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate it, are part of the res gesta.</p> <p>{at) The ground of attachment being that the defendant absconds, and on the trial of an issue formed thereon it having been shown that the defendant was absent from home when the attachment v/as sued out, it was competent to prove that in connection with his departure and just before it, he stated that he was going to Alabama after certain property, and sought to borrow money to pay his expenses there and back, and that he did return.</p>

<p>Continuance. New Trial. Criminal Law. Verdict. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>Landlord and Tenant. Contracts. Damages. Before Judge CRISP. Sumter Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>New Trial. Verdict. Debtor and Creditor. Before Judge HOOD. Terrell Superior Court. May Term, 188..</p> <p>Reported in the decision.</p>

Practice in the Supreme Court. September Term, 1881. This case was called September 14th, 1881, and a motion made to dismiss it because the bill of exceptions contained no reference to the brief of evidence, the exception being to the overruling of a motion for new trial. Counsel for plaintiffs in error offered to amend by inserting such reference. This was refused, and the case was dismissed.

Claim. Res Adjudicata. Estates. Evidence. Easements. Judgments. Before Judge WlLHS. Chattahoochee Superior Court. November Adjourned Term, 1880. A fi. fa. in favor of Van Leonard, trustee, proceeding for the use of Moses, was levied on parts of certain water lots extending into the Chattahoochee river adjacent to the city of Columbus, and the Eagle and Phenix Manufacturing Company interposed a claim thereto.

Criminal Law. Verdict. New Trial. Practice in Superior Court. Before Judge HlLLYER. Fulton Superior Court. April Term, 1881. Barton was indicted and convicted of the crime of perjury. At the same term he moved to set aside the verdict as illegal, and to be discharged, on the ground that he could not be again put in jeopardy. The facts, as gathered from the motion and affidavits submitted, were, in brief, as follows: Barton was out under bond.

Criminal Law. Lotteries, Charge of Court. Before Judge CLARK. City Court of Atlanta. March Term, 1881. Wilson was indicted and was tried in the city court of Atlanta. The indictment contained two counts, one for selling lottery tickets, the other for keeping and maintaining a lottery and other scheme or device for the hazarding of money or other valuable thing. The evidence was all aimed at the establishment of the second count.

<p>Insurance. Contracts. Waiver. Charge of Court. Fraud. Principal and Agent. New Trial. Before Judge WlLLtS. Muscogee Superior Court. November Adjourned Term, 1880.</p> <p>Vining & Brother sued the Merchants’ and Mechanics’ Insurance Company of Virginia, on a policy of insurance for $1,000.00, for the use of certain named parties. On the trial it appeared that the fire occurred in January, 1879: that within about two weeks after the fire Hawks, who was the general adjuster of the company in Georgia.went to the scene of the fire to adjust the loss. He furnished plaintiffs with blank proofs of loss, which they filled out and exhibited to him. He made no objection to them except as to a calculation to reach the amount lost. They then turned the proofs over to their attorneys, who went to see Willcox, the general agent of the company, at Columbus, Ga. He said he could do nothing, as the company had been garnished by creditors of plaintiffs. Their counsel sought to settle the amount of the loss, leaving the mode of its payment alone open, but Willcox said he could do nothing on account of the pendency of garnishments; and they are still pending. The proofs of loss were filed with Willcox in May or June, and suit brought to the next fall term of court. The jury found for the plaintiffs. Defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the court refused to give in charge to the jury the following request in writing: “ This suit having been brought in the name of A. G. Vining & Bro., for the use of certain named parties, the court charges you as matter of law that the real parties plaintiff are the usees named. If therefore the evidence shows no transfer, either by the act of A. G. Vining & Bro. or by the operation of law, of the policy of insurance, or of the amount due thereon to the usees, the jury cannot find a verdict in their favor.”</p> <p>(2.) Because the court refused to give to the jury the following request in writing : <( The policy sued on in this case by the terms and conditions thereof did not become due until sixty days after notice and proofs of the loss had been given either to the company at its office in Richmond, Virginia, or to its agent-in this state; and the act of showing the proofs to an adjuster of the company to inquire if they were in proper form, is not a compliance with such terms and conditions.”</p> <p>(3.) Because the court refused to give in charge to the jury the following request in writing: “If the jury believe that any demand was made for payment whilst the company was garnished at the instance of creditors of A. G.Vining & Bro. in suits claiming as much or more than the amount due on the policy; and if the company refüsed to pay because of such garnishments, then such refusal would not be a waiver of filing of such proofs.”</p> <p>(4.) Because the court refused to charge the jury the foL lowing request in writing: “ If the jury believe from the evidence that the assured, A. G. Vining & Bro., did, in order to obtain the issuance of this policy, make a written application, and in such application the assured in answer to a question ‘ what was the date and amount of the last inventory’? the assured answered, that the last inventory taken was in the fall of 1878, and if the evidence show that no inventory was taken in the fall of I878, and that the last one was taken in the fall of 1877, and the amount was $1600.00, and not $2000.00, then the policy is void.”</p> <p>On this point the facts are these: The application to obtain insurance in December, I878, stated that the plaintiffs took an annual inventory of stock; that the last one had been made “ last fall,” and amounted to $1500.00.</p> <p>(5.) Because the court charged the jury as follows: “If this company employed an adjuster, and, after notice of the loss, sent him to where this fire occurred, and where plaintiffs lived, and plaintiffs submitted to him their books and invoices and such further proof as was required of them by the adjuster, and said proofs were submitted to him within a reasonable length of time,, and he made no objection to them on account of insufficiencies; then they .would not be required to give any other or further notice to this company or its agents to authorize them to recover, because that would amount to a.waiver. But if you believe from the testimony that these plaintiffs madé out their proofs, and did not'submit them to this company or its adjuster or other agent within a reasonable length of time after the fire, and were not prevented from doing so ■by any act or statement of this company or its agent, then they would not be entitled to recover, unless you should believe the company or its agent refused to make any payment.” ■</p> <p>(6.) Because the verdict is decidedly and strongly against the weight of the evidence and contrary to law.</p> <p>The motion was overruled, and defendant excepted. .</p>

<p>Where four suits were pending.on appeal in the superior court, arising; tunder the same contract, involving the same pleas, and upon which the same verdict must have been rendered, there was no error in> consolidating and trying them together.</p>

<p>1. The homestead is not subject to a debt created for materials used in building the house thereon before it was set apartas exempt.</p> <p>2. After the setting apart of a homestead, if it is desired to sue and obtain a judgment which will bind it, the' pleadings' should show the grounds of such liability. The homestead is in the nature of a trust estate, and proceedings against it should be shaped accordingly. ■</p> <p>3. Where the application for homestead stated the county and alleged the applicant to be “ of said county,” his residence was sufficiently set forth.</p> <p>(<?.) In 1873 it was not necessary to set out the names and ages of the beneficiaries in an application for a homestead.</p> <p>(5.) While it is better in all cases to state the ownership of the property sought to be exempted, and in case of a married woman it is neces_sary, its omission does not render an application by her husband in-, valid. The presumption is that the property is his.</p>

<p>Under the short form of trover prescribed by the Code, an allegation that the property converted is of a value stated, and that defendant refuses to pay the profits thereof, is sufficient, without specifically alleging the amount of profitsand on such a declaration a verdict may be rendered for the value of the property, with interest thereon, in the nature of profits, the plaintiff choosing that form of recovery instead of proceeding for the highest proved value. . Nor does it . matter that.such, principal and.interest aggregate more than the value laid in the declaration.</p> <p>(a.) A verdict ip trover being for the value of the property, “ with interest,” and conversion being a condition precedent to commencing suit, it was a reasonable construction of the verdict to allow interest from the filing of the writ, and the defendant could not complain.</p>

<p>Evidence. Charge of Court. Fraud. Contracts. Stock. Railroads Interest. Equity. Verdict. Before Judge Stewart. Bibb Superior Court. April Term, 1881.</p> <p>To the report contained in the decision, it is only necessary to add, in connection with the first three divisions 'thereof, that the following were among the grounds of the motion for new trial in this case :</p> <p>(1.) Because the court erred in not permitting the defendant to prove by the witness, Wm. S. Holt, what John G. Shorter, one of the firm of Shorter, Papot & Co., said to him during his lifetime and before Shorter, Papot & Co., had finished the Vicksburg and Brunswick Railroad to Clayton, in Alabama, and before the Southwestern Railroad Company had delivered any of its stock on said contract to the order of Shorter, Papot & Co., to induce the Southwestern Railroad Company to issue and deliver stock under said contract to said firm in advance of the completion of said contract,the said Holt at the time being one of the directors and president of the Southwestern Railroad Company, and Shorter now being dead.</p> <p>(2.) Because the court erred in refusing to allow the defendant to prove by the witness, W. S. Holt, which they proposed todo, that John Gill Shorter, of the firm of Shorter, Papot & Co., agreed with him, as the president of the Southwestern Railroad, prior to the 29th of January, 1872, that if that company would issue and deliver to Shorter, Papot & Co., stock of its company on this contract,, in advance of the completion of the road, that the firm of Shorter, Papot & Co., would allow the Southwestern Railroad Company two months’ interest at the rate of 8 (eight) per cent, per annum on the amount of stock so issued and the same rate' of intérest on the amount of such stock not issued until the road should be completed according to contract, and that in consequence of this agreement, the company did issue <tO the order of said firm of Shorter, Papot & Co., on the 1st of February, 1872, 2905 shares, and that the same was received- by Ketchum & Hartridge on this agreement, the said William S. Holt being at the time president and director of the Southwestern Railroad Company but no party to this suit, and having no personal interest in the subject matter of the suit, said Shorter being dead.</p> <p>(3.) Because the court refused to allow the defendant to prove by Alexander R. Lawton, when on the-stand as a witness, after it had been shown that for the purpose of ascertaining whether there were any outstanding debts or liabilities against the Vicksburg and Brunswick Railroad Company at the time of the purchase of majority of the stock of that company from the firm of Shorter, Papot & Co. for the purpose of controlling and using that road and the said company, and before said trade was consummated that he was authorized and directed by a meeting of both companies, or a portion of hoth the boards of directors of the Central and Southwestern Railroad Companies, and Samuel N. Papot, also present and participating in said negotiation and a party to such arrangement, • to examine into the matter and ascertain whether there were any such debts and report to said company; and that in pursuance of such direction and arrangement, he went to Alabama, and after examination found no liens and incumbrances of any kind on record to impair the rights and title that railroad company proposed to acquire by this purchase that he, the said Lawton, then appealed to JohnG. Shorter, one of the firm then in life, but since dead, to know whether there were,-such debts, when he was informed that there were no such debts or liabilities of any kind whatever outstanding,- and that he, trusting to this information, reported to the board of directors that there were none, and that on the faith-of such information the trade was then consummated. ■ The court ruling out only as illegal evidence all that occurred between said Lawton and Shorter, and what said Shorter said to him, and that on the faith of what Shorter said to him the said trade was consummated.</p> <p>(4.) Because the shid court refpsed to allow the said Law-ton to answer to this question, following the above: “ Whether he made such examination and inquiry, and what information he received, if he received any such information, from the said John G. Shorter?” The said Lawton being at the time a director in the Southwestern railroad company,the attorney of the Centra] Railroad and Banking Company of Georgia, and the agent for the parties aboved stated, but no party to this proceeding nor otherwise personally interested in the matter;</p> <p>(5.) Because the court erred in ruling out the printed paper which was offered by. the defendants as the advertisement of the marshal’s sale of this property of the Vicksburg and Brunswick Railroad Company, in Eufaula, Alabama, on third of February, 1879,. under executions against that company in favor of the Savannah Bank and Trust Company and divers other plaintiffs in said advertisement named, issued out the circuit court of the United States for the middle district of Alabama. [The paper offered appears to have been a printed slip containing the advertisement as'testified by a witness,]</p> <p>(6.) Because the court erred in refusing to allow the witness, Wm. M. Wadley, to prove that the Vicksburg and Brunswick Railroad,together with all the property mentioned in said advertisement,was sold under the executions described in said advertisement, and that the same were obtained on the indorsement of the bonds of Barbour county by theVicksburg and Brunswick Railroad Company, and that the judgments and executions under which such sale was made were not within the jurisdiction of this court, but records and official papers belonging to the said circuit court of the United States for the middle district of the State of Alabama and the officers of said court.</p>

Railroads. Damages. Negligence. Evidence. Parent and Child. Charge of Court. Before Judge STEWART. Fulton Superior Court. April Term, 1881. In 1877 Mrs. Pyron was injured by the running away of a horse which she was driving near a crossing of the Atlanta and West Point Railroad..

Bankruptcy. Bailments. Before judge Fain. Bartow Superior Court. January Term, 1881. To the report contained in the decision it is only necessary to add that the following was the testimony of the agent of the company who transacted the business with defendants, and that of one of the defendants in respect to the manner of sale of the salt:— The agent of the company testified as follows: “I ceased to be traveling agent for plaintiff 20th March, 1877.

Practice in Supreme Court. Deeds. Wills. Charge of Court. Before Judge Willis. Monroe Superior Court. February Adjourned Term, 1881.

<p>Practice in Superior Court. Pleadings. Usury. Title. Contracts. Before Judge CRISP. Macon Superior Court-. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>The statute of 24 Geo. 2, c. 44, sec. 1, requiring one month’s written notice to be given to a justice before bringing suit against him for any act done by him virtute offiocii, is of force in Georgia; and a declaration which failed to show such notice was demurrable;</p>

Garnishments. Lis Pendens. Attorney and Client.' Before Judge CLARK. City Court of Atlanta.

<p>1. That an indictment or accusation names the defendant, but after-wards in charging the offence leaves a blank instead of re-naming him, should be taken advantage of by special demurrer ; otherwise it will not be a ground for new trial after verdict.</p> <p>2. When a defendant in a criminal case before the city court of Atlanta elects to be tried by the Court, a judgment of guilty is a sufficient foundation for a sentence, without the verdict of a jury.</p> <p>3. On a trial for vagrancy the evidence showing that for two years the defendant had been able to work, but had not worked, and that he had no property to support him, a judgment of guilty was sufficiently upheld thereby.</p>

<p>1. Where a constable was appointed by the sole justice in a district to fill the vacancy caused by a failure to elect a constable, and the appointee accepted the position and habitually exercised the functions of the office, a levy made by him was not void, although he may not have given the bond and taken the oath provided by law before entering on the duties of his office. He was a de facto officer.</p> <p>{at) That the justice who appointed him resigned and moved out of the county, did not alter the case.</p> <p>2. There is no law requiring the signature of a justice of the peace to a judgment entered by him on his docket. A signature by initials did not, therefore, avoid such judgment.</p> <p>3. A mistake in one’s favor is not a good ground of exception.</p> <p>4. That a magistrate did not enter on his docket an itemized state- ■ ment of the costs of á case, but entered judgment for a specified principal and interest, with costs of suit, did ript invalidate the ' judgment. :</p>

<p>An-application for homestead under the constitution of 1877 must ■ state.the grounds therefor. An.application simply claiming homestead, without stating whether as head of a family or in what capacity, is not sufficient; and 'the record 'of a homestead so granted will be rejected from evidence. • . " ' ' . '</p> <p>-(¿.) Such a-failure in the application 'cannot be cured, on the trial of á claim case based thereon, by parol testimony.</p>

<p>1. The judge of the superior court, on a motion for new trial, ordered that the new trial be granted unless within thirty days the respondent should renounce all claim or right to recover a certain portion of the property which had been awarded to her by the jury, and should pay to the movant a certain sum of money. Within the time specified counsel representing the respondent paid the specified sum to movant, and filed a renunciation on behalf of their client. At a subsequent term of court, the original case was called, having never been stricken from the docket. Counsel for movant insisted that the terms of the order had not been complied with, because interest on the sum specified should have been paid, and because the renunciation was by counsel instead of by their client, Counsel for respondent insisted that the terms of the order had been complied with, but if not, they asked time to obtain a formal renunciation from their client, she living in Florida, and no objection having been made to the renunciation before. The court held the renunciation bad, refused time, and ordered that the case stand for a new trial:</p> <p>■Held, that such ruling was error. If the renunciation was not strictly complete, reasonable time should have been, allowed to complete it.</p> <p>2. Whether such acts of counsel were not binding on their client ? Qucere.</p>

Evidence. Non-suit. Practice in Supreme Court. Before Judge Willis. Muscogee Superior Court. May Term, 1881. Abercrombie, administrator of Anderson Abercrombie, brought trover against Salisbury, surviving partner ofWarnock & Co., for one hundred and sixty-eight-bales of cotton, alleged to have been converted by them. Defendant having died, his executrix was made a party.

Criminal Law. Indictment. Verdict. Practice in the Superior Court. Witness. Before Judge HlLLYER. Fulton Superior Court. April Term, 1881.

Evidence. Trusts. Mortgages. Practice in Supreme Court. Deeds. Title. Before Judge WILLIS. Muscogee Superior Court. May Term, 1881. Spinks, as trustee for his wife and children, brought complaint for land against Cameron.as tenant in possession. Glenn, as landlord, became a- party.

<p>Wills. Husband and Wife. Dower. Before Judge HARRIS. Troup Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

Municipal Corporations. Powers. Streets. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1881. To the facts stated in the decision it is only necessary to add that the owner of the stock impounded in this case lived outside the corporate limits of the town, and his stock strayed within the limits, and were taken up.

<p>Prior to the act of 1877 if a record was not transmitted to this court in the time prescribed by law, the writ of error was dismissed, nor does that act avail if counsel for plaintiff in error participated in the cause of the delay.</p>

Practice in the Supreme Court. Injunction. Attachment for Contempt. Before Judge ERWIN. Hall County. At Chambers. July 23d, 1881. The chancellor granted an injunction restraining'Hayden, his agents, etc., from interfering with the possession, use and enjoyment of Phinizy of a house in Hall county known as the Sulphur Springs Station. Subsequently Phinizy applied to the chancellor for an attachment on account of the violation of the injunction.

<p>2. As ruled in the case of Glasé vs. The Western and Atlantic Railroad Company, just decided, no prescription runs against the state in any case.</p>

<p>1. To entitle the widow of a servant to recover against a principal for the negligence of a fellow-servant of that principal for the homicide of the husband, which resulted from such negligence, it must appear that the homicide amounted to a crime in said neglectful servant, either murder or manslaughter of some grade.</p> <p>2. A principal is not liable for the negligence of a fellow-servant in the same job, unless the principal himself-was negligent in not using ordinary diligence in selecting the fellow-servant, or in retaining him after knowledge of incompetency or negligence. Nor will the bare fact that the servant afterwards became negligent show — without more — negligence in the principal in selecting.</p> <p>3. One may waive the special contract and sue in tort for breach of duty, if there were such special contract; and the contract might warrant the competency and care of the fellow-servant, and be then invoked to change the legal principle on which the liability of the principal would turn for the tort;. but no special contract is set out in this declaration so as to vary that general legal principle.</p> <p>4. A workman engaged in the same job with two or three others, and having the direction of it, is not a general superintendent of a corporation so as to bind it as such, but stands on the footing of a mere fellow-servant.</p> <p>[Note : — The original opinion in this case was prepared by Chief Justice Jackson. After being so prepared, Justice Speer took it from the reporter for the purpose of making a citation in another case. He states that he handed it to Mr. Peeples, of the clerk’s office, with instructions that the latter should hand it to the reporter. This was never done, however, and it never reached the reporter’s hands. Mr. Peeples has no remembrance of receiving it from Justice Speer, and upon being called on for it by the reporter, he was unable to find any trace of it in the clerk’s office. In order to obviate as far as possible this loss, the head notes are published as prepared and revised by Chief Justice Jackson, and the following extract from the decision is appended, being taken from the decision in the case of Crusselle vs. Pug/i, September Term, 1881, where it was copied by Justice Speer. — Reporter.]</p>

<p>[Jackson, Chief Justice, being disqualified, did not preside in this case. Judge Cars-well, of the Middle circuit, was appointed to preside in his stead.]</p> <p>When the certificate of the presiding judge to the bill of exceptions shows on its face that the recitals therein are not true, the writ of error will be dismissed.</p>

<p>New Trial. Practice in Superior Court. Before Judge SlMMONS. Glynn Superior Court. May Term, 1881.</p>

<p>[Some months since, in examining the old records of the supreme court, the attention of the reporter was called by Hon. R. R. Lyon to a decision which was rendered by him in t86i, while on the supreme bench, and which seems to have been omitted from the Georgia Reports by the reporter of that time. It contains principles of such importance, and has been so frequently called for by members of the bar, that it is deemed advisable to publish it in full. The recorded opinion is to be found in the clerk’s office, in the bookmarked Opinions of Supreme Court of Georgia, from Savannah, January Term, 1861, to Athens, November Term, 1861, inclusive.” Pages 159-180. The head-notes are made by the reporter.]</p> <p>1. Drunkenness, as a ground of divorce, must be habitual.</p> <p>2. Parties at law or in equity may amend their pleadings in form or substance at any stage of the proceedings, as a matter of right. Nor. is this right taken away because a demurrer has been filed before the amendment is made. If it be still insisted upon, the amendment forms a part of the record, and must be considered by the court in passing upon the demurrer.</p> <p>3. A libel for divorce on the ground of cruelty charged that the husband evinced repugnance toward his wife, absented himself from her much of the time without cause, neglected her while sick, refused to allow her to attend church, of which she was a member, or to supply her with the common necessities of wearing apparel, although possessed of an ample property, encouraged insubordina- . tion on the part of a servant towards her, sent away servants who had been given to her by her father, made a will leaving her only five dollars, drove her from the house, and upon her returning to her father, where she was delivered of a child, refused to contribute any thing to her support or that of the child, and charged'her with adultery, saying that the child was not his, but that of another man:</p> <p>Held, that such conduct would have furnished ample ground for the granting of a divorce by the English ecclesiastical courts. The word cruelty has no technical signification as contradistinguished from its broad, popular sense ; and many acts were held by those courts to be cruelty, but were not regarded as sufficient to authorize a divorce under their precedents, because not amounting to personal violence or creating a reasonable apprehension thereof.</p> <p>4. In the grant of divorces, on the ground of cruel treatment, the courts of Georgia are not limited to such acts of cruelty only as were held to be sufficient for that purpose by the ecclesiastical- courts of England. Cruel treatment, or cruelty, in the broad and unrestricted sense in which it is used in our statutes, is any act intended to tor- - ment, vex or afflict, or which actually afflicts or torments without necessity, or any act of inhumanity, wrong, 'bppréssioufór'irijustice.</p> <p>(a.) We are not to be understood as saying that every act of disagreement of husband and wife, or a mere austerity of temper, or want of civil attention or accommodation, rudeness of language, and even occasional sallies of passion, will be sufficient to authorize a divorce. Still, marriage is a civil contract in which each is the equal of the other. The wife is not the menial or slave of the husband, and if, by intentional unkindness, insult, reproach and indignities, he embitters her life and makes it impossible that the marriage state can be continued by the parties in happiness or satisfaction, a divorce should be granted.</p> <p>(¡5.) Where cruelty has been practiced by one party towards the other, the jury should grant a divorce, either total or from bed and board, according to the circumstances of the case, as shall best advance the ends of law and promote and secure the happiness of the injured and innocent.</p>