Volume 68 — Georgia Reports

<p>(On motion to dismiss)</p> <p>1. Agreed copies of certain court papers were used in evidence on the trial of a case, and on the motion for new trial were attached to the brief of evidence, with the agreement that they be used on the motion for new trial, and if the case should be carried to the supreme court that they should be copied in the record as part thereof, in all respects as though they had been copied out into the brief of evidence, and the brief so formed was examined, approved and filed in office. On exception to the overruling of the motion for new trial the bill of exceptions recited that “a brief of the testimony introduced on the trial has been filed under the revision and approval of the court, and is a part of the record of the cause, identified by the signature of the judge appended to the agreement of counsel to said brief of evidence:”</p> <p>Held, that the brief of evidence was fully authenticated, and the case will not be dismissed.</p> <p>2. That the agreement of counsel to a brief of evidence recites that it consists of a certain number of pages, and when the same is copied by the clerk, it covers in the record more than that number of pages, is no cause for dismissal.</p> <p>(On the merits.)</p> <p>i. That a vendor had no personal knowledge of the items of account on which he sued at the time when they were made, was no ground for the exclusion of his testimony, where it appeared that after the goods were furnished he and the defendant went over the account together and agreed to its correctness.</p> <p>2. The verdict is upheld by the evidence.</p> <p>3. A contract to sublet, sublease or hire out convicts leased from the state, is illegal.</p> <p>(a.) A contract for one as an agent of a lessee 'of convicts to work them according to law on the place of the lessee would be legal, but for a lessee to turn over convicts to another to be carried away and worked by him for his own use at another place, would be illegal.</p> <p>(A) If upon the dissolution of a firm one partner, who was a lessee of convicts, put certain of them in charge of the other partner, by whom a contract was made with a creditor of the firm to let him have the labor of such convicts for eight years in payment of the firm debt, and the partner, who was a lessee shortly thereafter resumed control and took the convicts from the creditor, such facts would not constitute accord and satisfaction of the firm debt.</p> <p>4. Requests to charge not based on the testimony were properly refused.</p> <p>5. The judge of the superior court may grant a new trial on terms ; or may propose terms, and on their refusal in advance by counsel, may refuse a new trial. Such practice will not work a reversal of his judgment.</p>

New Trial. Trover. Newly Discovered Evidence. Before Judge UNDERWOOD. Polk Superior Court. February Term, 1881.

Criminal Law. Burglary. Master and Servant. Laws. Before Judge Snead. Richmond Superior Court. April Term, 1881. Ashton was indicted for burglary. The indictment alleged that he broke into and entered a certain house, the property of Eliza W. Moore, and used as a dwelling-house by one Albert Maddox, with intent to steal certain goods belonging to one William H. Warren. The evidence was, in brief, as follows: The house belonged to Mrs. Moore, and was situated on a plantation.

Practice in Supreme Court. Practice in Superior Court. Judgments. Executions. Illegality. Before Judge WlLLIS. Muscogee Superior Court. May Term, 1881. Clayton & Webb obtained a judgment against T. D. May & Co., a firm composed of May and J. W. Clayton. To the levy thereunder May filed his affidavit of illegality. Subsequently he amended it by adding new grounds, one of which was that the execution did not follow the judgment.

Homestead. Partnership. Levy and Sale. Fraud. Before Judge WIMBERLY. Talbot Superior Court. September Term, 1880. Paschal was a member of the firm of Paschal & Heidingsfelder. Blanchard, Williams & Company were judgment creditors of the firm. Their ft. fa. was levied on the stock of goods belonging to the firm, and the sheriff took possession.

<p>1. Pending an appeal to the supreme court from a decision on a writ of habeas corpus refusing to release a prisoner, can the court discharge him from custody on any terms ? Qucere.</p> <p>2. An attorney having been imprisoned under attachment for failure to pay over money to his client, a writ of habeas corpus having been sued out in his behalf, a judgment remanding the prisoner to custody rendered, and the case having been carried to the supreme court, if the defendant be discharged on giving bond to the sheriff “to render his body in prison in execution of the order remanding him, in the event such order should.be affirmed,” on failure to comply therewith, after an affirmance, no recovery can be had either by the movant in the attachment or the sheriff for his use.</p>

<p>1. Since the act of 1881, where only one of two joint defendants moved for a new trial, and the bill of exceptions to the overruling of the motion was in the name of both, it could be amended so as to conform to the record.</p> <p>(a.) Would not a reversal, on exception, by one joint defendant, work a reversal as to both ? Qucere.</p> <p>2. A landlord leased certain stores to tenants at a stipulated price, payable monthly. The landlord agreed to keep the building in good repair, and to pay the tenants any damage they might sustain by his neglect to do so.</p> <p>Held, that the covenant to pay rent and that to repair were independent covenants, and, therefore, a failure to repair did not work a forfeiture of the rent, but gave a right of action, or of recoupment to the tenant.</p> <p>3. Where a landlord covenants to keep premises in repair, his failure to do so, whereby their use by the tenant is impaired, will not work a forfeiture of the rent, unless the premises become untenantable and a constructive eviction results. The remedy of the tenant is, after reasonable opportunity to the landlord, and failure by him to repair, to make the repairs himself and look to the landlord for reimbursement, or to occupy the premises without repair, and hold the landlord responsible for damages by action, or by recoupment to an action for the rent.</p> <p>(a.) In Georgia the duty of keeping premises in repair is on the landlord, in the absence of any covenant on that subject.</p>

<p>Libel. New Trial. Practice in Supreme Court. Before Judge Willis. Marion Superior Court. April Term, 1881,</p> <p>Reported in the decision.</p>

Jurisdiction. Judge. Criminal Law. Practice in Su jprerhe Court. Before-H. P. Bell, Esq., Judgepro hac vice. Lumpkin Superior C.ourt. April Term, 1881. Castleberry was indicted for cutting down a mining ditch. Judge Brown, of the Blue Ridge circuit, being disqualified, H. P. Bell, Esq., by consent of both sides, and under approval of the court, presided as judge pro hac vice. The defendant was convicted, moved for a new trial, which was refused, and he excepted.

<p>Ordinary. County Matters. Courts. Jurisdiction. Actions. Damages. Before Judge BROWN. Cobb Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>Principal and Surety. Evidence. Practice in Superior Court. Charge of Court. Before Judge SNEAD. Richmond Superior Court. October Term, 1880.</p> <p>Reported in the decision.</p>

<p>Equity. Stock. Parties. Amendments. Pleadings. Before Judge SNEAD. Richmond Superior Court. October Term, 1880.</p> <p>Reported in the decision.</p>

<p>Judgments. Res Adjudicata. Claims. Before Judge Underwood. Gordon Superior Court. February Term, 1881.</p> <p>Reported in the decision.</p>

<p>Injunction. Equity. Criminal Law. Before Judge HlLLYER. Fulton County. At Chambers. July 16th, 1881.</p> <p>Reported in the decision.</p>

<p>Judgments. Illegality. Before Judge Fain. Bartow Superior Court. January Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where appraisers set apart property as a year’s support for the family of a decedent, and their return is admitted to record, after the lapse of six months, the title vests in the family. A formal judgment of a court of ordinary is only necessary where the appraisers set apart a sum of money.</p> <p>(a.) That the return was admitted to record before the end of six months did not render it invalid. The right of exception continued until the time expired, and the record then became operative.</p> <p>2. Parol evidence of those within whose knowledge the matter falls is admissible to show that there has been no administration on an estate.</p>

<p>Landlord and Tenant. Ouster. Before Judge FLEMING. Early Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>A constable being still in office, and parties being protected by his official bond, he may on the day of sale under a levy by him amend his official entries so as to make them conform to the facts, without any order for that purpose.</p>

Practice in Superior Court. Pleadings. Set-off. Continuance. Before Judge POTTLE. Richmond Superior Court. October Term, 1880.

<p>Equity. Injunction. Administrators and Executors. Before Judge Hillyer. Fulton County. At Chambers. September 3d, 1881.</p> <p>Reported in the decision.</p>

<p>1. A rule nisi to foreclose a mortgage is similar to process in an ordinarv suit, and may be waived. The petition takes the place of the declaration.</p> <p>2. A judgment foreclosing a mortgage does not fall within the purview of the law making judgments dormant after seven years of inaction.</p> <p>3. Though the bar of the act of 1869 may have been good as a defence to an action, it is not good as a ground of illegality after judgment.</p> <p>4. Twenty years from the date when a mortgage debt is due to the date of issuing a ft. fa. on the judgment of foreclosure, is not a bar to the latter. The commencing of the suit on which the ft. fa. is founded within twenty years, suspends the statute.</p> <p>(a.) In this case,..leaving out the time when the statute of limitations was suspended by law, twenty years had not elapsed even to the date of issuing the ft. fa.</p>

<p>New Trial. Verdict. Charge of Court. Onus Probandi. Minors. Parent and Child. Guardian and Ward. Witness. Before Judge Underwood. Floyd Superior Court. March Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>Husband and Wife. Fraud. Sales. Title. Evidence. Before Judge FLEMING. Decatur Superior Court. November Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>Debtor and Creditor. Assignments. Title. Garnishment. Before Judge Erwin. Clarke Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Evidence. Fraud. Partnership. Contracts. Before Judge Fain. Whitfield Superior Court. April Term, 1881. .</p> <p>Reported in the decision.</p>

<p>1. A retraxit-vs. the open, public and voluntary renunciation by the plaintiff in open court oí his suit or cause of action, and if this is done by the plaintiff and a judgment entered thereon by the defendant, the plaintiff's right of action is forever gone.</p> <p>2. When a party to a contract seeks to enforce the same by bill for specific performance, and obtains a decree thereon, the contract is merged into the'decree. Such contract and the decree founded upon it will not be set aside at the instance of the party who took it, on the ground that the defendants refuse to fully comply with it, and that on account of insolvency they cannot be compelled by execution to do so, as provided in the decree. Especially will such decree stand in the absence of any allegation .of fraud, accident or mistake, or that insolvency had occurred since it was rendered.</p> <p>(a) A consent decree is not tire subject of a bill of review.</p>

<p>1. The verdict in this case was contrary to law and the evidence.</p> <p>2. A general recovery in ejectment, where no mesne profits are recovered as rent for the current year, and no claim is put in issue by defendant to the crops of the j ear, includes the land and whatever passes with the realty, including crops unsevered-therefrom. Therefore, after such a recovery, assumpsit could not be maintained by the defendant against the plaintiff in ejectment for the value of the crops, based on a contract to cultivate the land and pay the rent to the true owner, alleged to have been made prior to the recovery in ejectment.</p>

<p>Actions. Damages. Pleadings. Before Judge HILLYER. Fulton Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>To recover taxes paid to a municipal corporation, it must appear that the tax was unauthorized; that the amount was actually received by the corporation ; and that it was paid under compulsion, to prevent the immediate seizure or sale of plaintiff’s goods, or arrest of his person. Voluntary payment, accompanied by protest, will not suffice.</p> <p>(a.) The declaration in this case did not distinctly allege these requisites, and was demurrable.</p>

<p>1. The sale of cotton to be delivered at a future day, where both parties are aware that the seller himself expects to purchase to fulfill his contract, and no skill and labor or expense enter into the consideration, but the same is a pure speculation upon chances, is contrary to the policy of the law, and can be enforced by neither party. But where such a contract is executed, an agent who may be employed by his principal to make the contract can recover from him any money advanced in the transaction by his authority.</p> <p>(a.) C. & Co., dealt in cotton futures during the day, received and posted telegrams stating the .price of cotton, and required trades based on such telegrams to be made within ten minutes after such posting. At night they would buy or sell futures in their own names in New York, so as to cover the transactions of the day. T. Bros, bought futures of them, and they covered themselves as usual that night:</p> <p>Held, that they were not the agents of T. Bros, but principals in the transaction.</p> <p>2. No court will lend its aid to either party engaging in an illegal or immoral act. Therefore, he who deposits “ margins ” in the purchase of cotton futures cannot recover them by set off or otherwise.</p>

<p>1. For a failure or refusal to perform or complete their duty or. the part of the commissioners created in Douglas county by the act of 1870, for the purpose of laying off town lots, selling the same and applying the proceeds, whereby the county was injured, mandamus was a proper remedy.</p> <p>2. An office is a public station- or employment conferred by the appointment of the government. Any man is a public officer who is appointed by the government and has any duty to perform concerning the public. Nor does it matter that his authority or duty is confined to narrow limits.</p> <p>3. The commissioners of roads and revenues of Douglas county were authorized to proceed against any county officer having the care of public money for the purpose of bringing him to a 'settlement.</p> <p>4. The allegations in the petition for mandamus clearly showed a failure to discharge their official duty on the part of the defendants.</p> <p>5. By the act of September 29th, 1881, theproviso which had authorized the continuance of this petition for mandamus having been repealed, no authority remained in the board to proceed further.</p>

<p>Evidence. New Trial. Charge of Court. Deeds. Grants. Before Judge Fleming. Worth Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>That a judgment is a nullity by reason of having been rendered against a defendant after his death, or rendered on two verdicts, one in favor of the plaintiff, the other for the defendant, does not require the interposition of a court of equity byinjunction; if such be the facts, they can be taken advantage of by affidavit of illegality or motion to set aside the judgment.</p>

<p>Mortgages. Contracts. Estoppel. Receivers. 'Before Judge Fleming. Dougherty Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. The courts are not inclined to construe a legacy to be specific, where the question is in doubt.</p> <p>2. The cardinal rule of construction of wills is to seek the intention of the testator.</p> <p>3. A testator made the following provisions in his will: After providing for the payment of his debts, he bequeathed certain specified property to his wife for life, and at her death to be equally divided between his three children. . He declared that he had given to his son, W. H. M., property which he valued at $10,000. He left to his other two children, share and share alike, certain land.and all.the money and evidences of debt of which he might die possessed, after paying physicians’ bills and funeral expenses. By a codicil, he declared that, having given to his other two children each $1,500.00, he then bequeathed unto his said son $1,500.00 “to be raised out of my estate before the final division between him and his brother and sister,” after the death of the wife; but should testator before his death give said son $1,500.00 and take his receipt therefor, the legacy was to become void, as it was declared to be made to equalize the children:</p> <p>Held, that the legacy was general, not specific, and would have to contribute to the payment of debts with the other general legacies.</p>

<p>1, Where a purchaser at a sheriff’s sale fails to comply with his bid, the sheriff may sue him for the amount thereof, or may re-sell the property and sue him for the difference between the original bid and what the property brings at the second sale.</p> <p>2. In such a suit, the sheriff is the party plaintiff, and parties interested in the fund are properly joined as usees in the action; nor is there any misjoinder because the sale took place under two mortgage ft. fas., the plaintiffs in both of which are made usees of the sheriff’s suit.</p>

<p>There is no vendor’s lien in Georgia. The right to attach for purchase money is a privilege, not a lien.</p> <p>(a.) Therefore, a note with personal security having been given for the purchase money of a horse, that the vendor subsequently bought back the horse and thereby destroyed his right to attach, did not.release the surety on the note.</p>

<p>Arbitrament and Award. Jurisdiction. Executions. Non-suit. Before Judge FLEMING. Baker Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Illegality. Executions. Practice in Superior Court. Levy and Sale. Practice in Supreme Court. .Before Judge Stewart. Rockdale Superior Court. February Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>Title. Slaves. Estates. Equity. Inheritance. Before Judge Willis. Muscogee Superior Court. November Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors. Estates. Before Judge Erwin. White Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. There was evidence in this case on which to found the charge as given by the court.</p> <p>2. After January 1,1863, a guardian had no right to invest the Confederate money of his ward in his hands, except for state securities, without an order of the superior court. If he did so, he became liable for the value of such money at the time it was so invested.</p>

<p>Master and Servant Actions. Former Recovery. Before Judge Pate. Pulaski Superior Court. November Adjourned Term, 1880.</p> <p>Reported in the decision.</p>

<p>A trustee may discharge himself from liability by showing that he received Confederate money at a time when it was the common and only currency, and when prudent business men were receiving it, and that it became worthless in his hands ; but the facts and circumstances under which it was received must be clearly and satisfactorily shown as evidence of good faith, and the burden is on the trustee.</p> <p>{a.) In the present case the trustee failed to sustain the onus thus cast on him.</p>

<p>Levy and Sale. Executions. Constables. Before Judge Fleming. Early Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

Wills. Estates. Injunction. Equity. Before Judge Stewart. Pike County. At Chambers. May 14th, 1881. To the report contained in the decision, it is only necessary to add the following: A fi. fa. in favor of Jones was levied on certain land. Crawley, on behalf of himself and his children, filed a bill to enjoin the sale. He claimed as a life tenant under the item of his father’s will set out in the first head-note above, and for his children as remaindermen.

<p>Distress Warrant. Landlord and Tenant. Practice in Superior Court. Judgments. Before Judge Hood. Decatur Superior Court. May Term, 188x.</p> <p>Reported in the decision.</p>

<p>Where a party has to resort to a certiorari in order to correct the errors of an inferior judicatory, the consent of the other party before the superior court to make the correction, will not authorize the dismissal of the certiorari and a judgment for costs against the applicant therefor.</p>

Practice in Supreme Court. Practice in Superior Court. Evidence. Jurors. Verdict. Before Judge SIMMONS. Bibb Superior Court. April Term, 1881.

<p>Injunction. Attorney and Client. Practice in Superior Court. Before Judge Erwin. Hall County. At Chambers. August 6th, 1881.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Contracts. Actions. Before Judge Willis. Muscogee Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>After the dissolution of a partnership, one partner has no power to bind the firm by a new contract, nor to renew or continue an existing liability, nor to change its dignity or nature.</p> <p>(a.) A general power in one partner to settle up the partnership business will not be construed to include the indorsement of a new draft and its substitution for an old one previously indorsed by the firm. Such a power should be specially conferred.</p> <p>(A) A creditor of a partnership, having full notice of the dissolution of the firm and that one of the partners was to settle the firm business, and having allowed such partner to make a payment on a draft indorsed by the firm and to substitute a new draft in its place without the knowledge of the other partner, could not recover against the latter.</p>

<p>1. That the magistrate did not file the papers in an appeal case in the office of the clerk of the superior court ten days before the term to which they were returnable, is no ground to dismiss the appeal.</p> <p>2. Nor is it aground of dismissal that the justice did not send up the judgment rendered by him.</p> <p>3. Nor that the magistrate made no proper certificate that the appellant had, within the proper time, paid the costs and given bond. V hen an appellant has done his duty, the mistake of the magistrate may be corrected.</p> <p>4. The absence of an itemized bill of costs from the justice court in an appeal case may affect the recovery of such costs, but is no ground for dismissing the appeal.</p> <p>5. Attachments returnable to a justice court should be directed to the constables, and levied by one of them. A levy by the sheriff is bad.</p> <p>(a.) The interposition of a claim commits the claimant to the fact of the making of a levy, but not to the legality of the process under which it is made.</p>

<p>1. The charges of the court complained of were not unfounded on evidence.</p> <p>(a.) Where the agent of an insurer asked the insured, upon the renewal of the policy, if the risk was about the same as before, and upon an affirmative answer being given, entered the amount in a blank in the application, the jury might infer that he knew what it was before, and a charge based on that hypothesis was not error.</p> <p>2. If the assured did not know the value of property on which he desired insurance, but bona fide stated such value on information, and so informed the insurer or its agent, the falsity of the information would not avoid the policy.</p> <p>3. An absolute refusal to pay on the part of an insurer waives preliminary proofs.</p> <p>4. A refusal by an insurer to settle with the insured or to fix the amount of liability, if any, during the pendency of certain garnishments, would waive proofs of loss during that time.</p> <p>5. The verdict is supported by the evidence.</p>

<p>1. Where the security on the bond of an administrator, as agent for the administrator, held certain property of the estate, and after the death of his principal accounted and settled fully and without fraud or collusion with the administrator de bonis non, the general distributees are bound, and cannot hold such security to account directly to them.</p> <p>2. The discharge of an administrator from liability on his bond discharges also his securities.</p> <p>3. Where a right of action accrued against an administrator and his surety prior to 1865, and no suit was brought until October, 1875, the action was barred.</p> <p>(a.) Fraud to relieve a case from the bar of the statute must be such as involves moral turpitude. Mere errors or inaccuracies in accounts, without more, is not sufficient.</p>

<p>1. A material variance between a fi.fa. and the judgment on which it is founded, is good ground for quashing the former, or rejecting it when offered in evidence in a claim case arising thereunder.</p> <p>2. A suit being in the name of M. and N„ surviving executor and executrix of B., for the use of another, the judgment being for the plaintiffs, and the fi.fa. being in the name of M. and N., for the use of the same party, the variance was not material.</p>

<p>Evidence. Judgments. Administrators and Executors. Equity. Before Judge Willis. Marion Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>Illegality. Pleadings. Parties. Service. Before Judge Fain. Bartow Superior Court. January Term, 1881.</p> <p>Reported in the decision.</p>

<p>Railroads. Principal and Agent. Contracts. Damages. Verdict. Before Judge UNDERWOOD. Floyd Superior Court. September Term, 1880.</p> <p>Reported in the decision.</p>

<p>A court of equity, upon proper proof, will reform a deed and make it speak the truth, not only as between the parties, but against everybody else except bona fide purchasers without notice.</p> <p>(a.) A judgment creditor whose debt was made before the making of a deed to land, but whose judgment was obtained afterwards, did not stand on the basis of a bona fide purchaser without notice, so as to prevent the correction of a mistake in the deed as against him.</p> <p>(A) Failure to record a deed, or its attestation by but one witness, does not postpone it to judgments junior to it.</p>

<p>Amendments. Abatement. Actions. Evidence. Witness. Damages. Negligence. Practice in Superior Court. Charge of Court. Verdict. Attorney and Client. Before Judge SNEAD. Richmond Superior Court. October Term, 1880.</p> <p>Reported in the decision.</p>

<p>Where distinct parcels of property are levied on under one levy, and and all claimed by the same claimant, the whole tried under one issue, and a verdict rendered finding certain particular parcels of the property subject, the legal intendment of such a verdict would be that the balance was not subject.</p> <p>(a.) While it might have been more regular to have required the jury to have found explicitly as to all the lots before receiving the verdict, yet where the verdict has been returned and a judgment rendered ordering thefi.fa. to proceed against the parcels found subject, the judgment could subsequently be amended by declaring the true intendment of the verdict and adjudging accordingly.</p> <p>(6.) That a judgment has been before the supreme court for review, and has been affirmed, will not prevent a subsequent amendment so as to more certainly declare the effect of the verdict.</p>

<p>1. A verdict which is not explicit in its terms, but the intention of which is apparent from the pleadings and evidence, may be construed with reference thereto by the court.</p> <p>(a.) The issue formed by an affidavit of illegality, on the ground (among others) that there was no verdict on which to base the judgment rendered, having been submitted to the court without a jury, the record of the case in which the judgment was rendered, including the material portion of the brief of evidence used on a motion for new trial therein, was admissible to show whence the court derived the construction put upon the verdict by him.</p> <p>2. A security on a claim bond is sufficiently a party to the claim case tobe bound by the verdict and judgment therein for damages and costs. If the judgment is brought to the supreme court and affirmed, he cannot afterwards go behind it by affidavit of illegality.</p>

<p>Homestead.. Waiver. Before Judge HOOD. Terrell Superior Court. November Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Since a married woman has become a feme sole as to her separate estate she may sue or be sued in respect thereto.</p> <p>2. At common law if two were declared against as partners, no recovery couid be had against one of them severally. But in Georgia where two or more defendants are joined, and it appears on the trial that some of them are not liable and ought not to have been joined in the action, the suit will not abate orbe quashed on that account, but may proceed against the other defendants.</p> <p>(a.) Objection to the evidence of several liability under a joint suit would have necessitated an amendment, but where no objection was made, a verdict against one of the defendants will not be set aside.</p> <p>(¿.) Can a wife be her husband’s partner in business ? Queere.</p>

<p>1. Where deeds purported to convey certain lands in Alabama, and also “the buildings, outhouses, water courses, water privileges and advantages to said land belonging, or which the said Rock Island Company may have acquired from the state of Georgia and where it appeared from the parol testimony that for three years the Rock Island Company had been in possession of the Alabama land so conveyed, which extended into the Chattahoochee river between Georgia and Alabama, and also of the dam extending from the western bank of the river to the factory, and were manufacturing paper thereat, such deeds were at least admissible as color of title, though the mill itself was in the river, and most of the property in Georgia.</p> <p>(a.) Of course if objection was withdrawn to their admission, no exception can be taken thereto.</p> <p>2. A prescriptive title was shown in this case, and the finding of the court, presiding without a jury, was right.</p>

<p>1. Where D. delivered to G. certain promissory notes unsigned, and G. gave to him a written contract' stating that they were received as collateral and agreeing that upon the payment by D. of certain debts that he (G.) would deliver to D. the notes signed by himself and associates, or in default of payment by D, he would collect enough to pay the debts and turn over balance to D. such a contract did not amount to a promise to pay money, so as to form the basis of an action therefor.</p> <p>(a.) On compliance with the condition precedent, trover to recover actual possession, or a bill for specific performance, would lie.</p> <p>2. A parol purchase of lands is obnoxious to the statute of frauds.</p>

Liens. Judgments. Pleadings. Before Judge Fain. Whitfield Superior Court. April Term, 1881. This was a rule brought by John P. Love, the plaintiff in error, against Cox, the sheriff of Whitfield county, calling upon him to show cause why he should not pay over to him enough of the money in his hands to satisfy his fi. fas.

<p>Constitutional Law. Debtor and Creditor. County Matters. Before Judge POTTLE. Hancock County. At Chambers. December 12 th, 1881.</p> <p>Reported in the decision.</p>

<p>Equ’ty. Homestead. Before Judge CRISP. Stewart Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. If a man’s family permanently reside in this state, the superior court of the county of their residence has jurisdiction of a case against him, and service by leaving a copy of the writ at his residence is sufficient, though he himself is absent and has been so for a considerable time, he not being permanently separated from his wife and family. Code, §1690.</p> <p>2. It appearing from the record that this case was brought to the supreme court for delay only, damages are awarded against the plaintiff in error. 40 Ga., 94, 157, 213; 42 Ib., 233.</p>

<p>1. The evidence upholds the verdict.</p> <p>2. A refusal to grant a continuance to obtain evidence which, when obtained, would be immaterial, is no ground for a new trial.</p> <p>3. Though a word in the charge, when taken alone, may be objectionable, yet if when taken with its context it is clear and substantially correct, its use will not necessitate a new trial.</p>

<p>1. The law defines what constitutes a legal fence; and there is no distinction made as to the different animals which are likely to enter into an inclosure, making the fence of one height for one class and another height for another.</p> <p>2. Neither can the average height of a fence, too low at some points and too high at others, be taken to decide whether it meets the requirements of law.</p> <p>3. Nor does the fact that a fence not up to the standard fixed by law will keep out other hogs than those of the plaintiff justify a trespass upon his hogs, even where notice has been first given.</p> <p>4. To an action for trespass committed upon stock while on the premises of the defendant, a set-off of damages to the crop done by the stock is not maintainable, where the fence around such crop was not a legal fence.</p> <p>5. Where all the evidence material to a case is not brought up to this court, alleged errors depending upon the evidence cannot be considered.</p>

<p>Telegraph Companies. Damages. Negligence. Contracts. Cotton Futures. Before Judge WlLLlS. Muscogee Superior Court. November Term, 1881.</p> <p>To the facts reported in the decision, it is only necessary to add that the defendant moved for a new trial on the following, among other grounds :</p> <p>(1.) Because the court refused to charge the jury that telegraph companies may limit the measure of their liability to damages by reasonable rules and regulations brought home to the knowledge of, and attended to, by those with whom they deal, and that a rule of a telegraph company requiring important messages to be repeated in order to guard against mistakes in transmitting them, and charging one-half the usual rate for such repetition, and that the company will not be responsible for mistakes in the transmission of unrepeated messages is reasonable, and such as the company may adopt; and it will not be liable for an error in an unrepeated message except for fraud or gross negligence.</p> <p>(2.) Because the court refused to charge the jury that the rule in regard to insuring important messages by contract in writing, as contained in the said printed blank of said defendant, is also a reasonable one, and in the absence of such insurance the company is only liable for fraud or gross negligence.</p> <p>(3.) Because the court refused to charge the jury that if the testimony shows that the message which plaintiffs allege was delivéred by them to defendant on the 19th' day of May, 1879, for transmission to Waldron &Tainter,. New York, was written by said plaintiffs, or any one of them, or any member of their firm, on a printed blank of defendant in the words and figures following:</p> <p>“THE WESTERN UNION TELEGRAPH COMPANY.</p> <p>All messages taken by this company subject to the following terms: To guard against mistakes or delays, the sender of the message should' order it repeated ; that is telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition.. It is agreed between the sender of the following message and the company that said company shall not be liable for mistakes or delays in the transmission or delivery or for non-delivery of any unrepeated message whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery or for non-delivery of any repeated message-beyond fifty times the sum received for sending the same, unless specially-insured ; nor in any case for delay arising from unavoidable interruption-In the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liaIbility, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of this company can be insured by •contract in writing, stating agreed amount of risk, and payment of •premium thereon at the following rates, in addition to the usual charge for repeated messages, viz : one per cent, for any distance not exceeding 1,000 miles, and two per cent, for any greater distance. No employe of the company is authorized to vary the foregoing.</p> <p>No responsibility regarding messages attaches to this company until •the same are presented and accepted at one of its transmitting offices, .and if a message is sent to such office by one of the company’s messengers, he acts for that purpose as the agent of the sender. Messages will be delivered free within the established free delivery limits •of the terminal office ; for delivery at a greater distance a special charge will be made to cover I he cost of such delivery. The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.</p> <p>A. R. Brown, Secretary, Norvin Green, President.”</p> <p>“ Columbus, Ga., May 19th, 1879.</p> <p>Send the following message, subject to the above terms, which are agreed to.</p> <p> T0 Waldron Tainter, gy Pearl st., New York. </p> <p>Cover two hundred September, one hundred August.</p> <p>(Signed) Blanchard, Williams & Co.”</p> <p>[Paid.]</p> <p>“ Read the notice and agreement at the top,”</p> <p>and that said plaintiffs assented to said rules and regulations, then the said rules and regulations became and were the agreement and contract between the said parties, and said plaintiffs can not recover, unless they show that they had said message repeated or requested to have it repeated, and paid or offered to pay for the same, any greater sum than the tolls paid by them with the legal interest thereon.</p> <p>(4.) Because the court refused to charge the jury as follows: That if the jury shall believe from the testimony that the message sent by plaintiffs in this case, or delivered to defendant to be sent, was an obscure or unintelligible message, and that its meaning was unknown to defendant or its agents, and that there was no notice or information of any fact given to defendant or contained in the message itself indicating its importance, or that special damages would result from any neglect in its transmission, then the measure of damages would be, in case of recovery, the tolls paid by plaintiffs for its transmission, and the jury should so find.</p> <p>(5.) Because the court refused to charge the jury as follows: Telegraph companies are not liable for damages in any case where the claim for the same is not presented in writing within sixty days after the sending of the message, when such stipulation or condition is embodied in the printed terms of the blank upon which the message is sent, to some agent of the company authorized to exercise any of its corporate powers in relation to the subject matter of the claim. And if the evidence does not show that plaintiffs presented their claim in writing within such time to such agent of the defendant, then plaintiffs cannot recover in this case.</p>

Equity. Taxes. Railroads. Southwestern Railroad. Judgments. Res Adjudicata. Before Judge SlMMONS. Bibb Superior Court. April Term, 1881. To the report contained in the decision it is unnecessary to add any thing further than to refer to the same case reported in 64 Ga., 783, where it is fully set forth.

Criminal Law. Indictment. Evidence. New Trial. Before Judge Clark. City Court of Atlanta. September Term, 1881. Hinton was tried on an accusation charging him with gaming.

Homestead. Pleading. Before Judge SlMMONS. App-ling Superior Court, October Term, 1881. Roberts ruled the sheriff to show cause why the latter did not put him in possession of certain land bought by him at a sheriff’s sale.

Contracts: Bankruptcy. Verdict. Debtor and Creditor. Before Judge WILLIS. Upson Superior Court. November Term, 1881.

<p>1. A bill was filed by a vendor of land against his vendee, praying, among other things, an account and settlement for the balance of purchase money. The defendant occupied the place by tenant. Questions of waste and of improvements made by defendant were involved. Special, questions were submitted to the jury, one of them being whether defendant had made any improvements, and of whatkind and value. The jury answered “ yes, of a character that was needed</p> <p>Held, that a proper construction of such answer is that the improvements made were merely necessary repairs, and not of permanent benefit to the place, so as to be set off against complainant’s claim.</p> <p>(a.) This construction is made more certain by the fact that the jury found the value of the property to be the same as the amount for which it was sold by the complainant, adding nothing for improvements.</p> <p>2. Where a grantee of land in a deed made as security contracted to pay to the grantor a sum in cash (besides removing a specified encumbrance from the land) such contract was not fulfilled by paying a part of the cash and paying off a note given by the grantor to a third party with the balance, if such payment was voluntary, and unauthorized by the grantor.</p> <p>3. The evidence supports the verdict.</p>

Deeds. Title. Charge of Court. Evidence. Before Judge Hillyer. Dekalb Superior Court. September Term, 1881. Goldsmith brought ejectment against White for certain land. The controversy arose thus: In 1850 Lemuel Dean was the owner of a large part of land lot No. 254, in Dekalb county. Across this lot ran from northeast to southwest Snapfinger Creek, and towards the southwest part of the lot was the mill-pond, which extended in a general southwesterly direction.

<p>Criminal Law. Indictment. Verdict. Before Judge CLARK. City Court of Atlanta. March Term, 1881.</p> <p>An indictment was preferred against Dohme containing two counts. The first charged that “the said Robert Dohme, in the county aforesaid, on the first day of April, in the year of our Lord 1881, with force and arms did keep, have, use and maintain a gaming house, contrary to the laws, etc.” The second count charged that the defendant knowingly rented said house for gaming purposes.</p> <p>Defendant demurred to this indictment as insufficient to charge any offense and because no house was specified in which the offense was committed. The demurrer was overruled. It is unnecessary to set out the evidence introduced. The jury found the defendant guilty. He moved for a new trial on the following grounds :</p> <p>(i.) Because the court overruled the demurrer to the indictment.</p> <p>(2.) Because the court charged the jury that if they found defendant guilty on either or both of the counts, to render a general verdict of guilty.</p> <p>(3.) Because the court refused to charge, as requested by defendant, that if they'found him guilty on one count and not guilty on the other count, to specify in their verdict on which count they found him guilty. The defendant requested the court thus to charge immediately on the retiring of the jury, and before they had time to consult on the case. [The judge in a note says that after the jury retired counsel requested him verbally to recall them and charge that they should specify on which count, if they found defendant guilty, and he declined.]</p> <p>(4.) Because the verdict is contrary to evidence and law.</p> <p>(5.) Because the court admitted over defendant’s objection the testimony of Crawford, Kimbro and Harrison as to any house being rented or used, there being no charge in the presentment authorizing the introduction of such testimony.</p> <p>The court overruled the motion and defendant excepted.</p>

Evidence, Interrogatories. Contracts. Damages. New Trial. Before Judge LAWSON. Greene Superior Court. September Adjourned Term, 1881. L. & S. Sternberger brought suit against Barnhart & Kimbrough for $140.00, as the purchase price of fourteen dozen “ Pearl ” shirts.

Mortgages. Executions. Actions. Practice in Superior Court. Before Judge Brown. Dawson Superior Court. September Term, 1881.

<p>1. The verdict is supported by the evidence.</p> <p>2. A general stipulation or notice in a bill of lading will not limit the liability of a common carrier ; an express contract is necessary for that purpose. Such is the meaning of the charge in this case.</p> <p>(a.) An express contract will not protect a common carrier from the results of its own negligence in running its trains.</p> <p>3. Where goods are shipped over a connecting line of railroads, the last road of the line receiving them as in good order for transportation is liable to the consignee for damages.</p> <p>(a.) Goods were billed from St. Louis, Mo., to Athens, Ga.; as far as Atlanta, Ga., through rates of freight were paid, and from Atlanta to Athens local rates were charged :</p> <p>Held, that even if this did not make the Georgia Railroad (from Atlanta to Athens) liable as the last road of a through line, still the receipt by it of the goods for transportation without exception was impliedly a receipt as in good order, and would render that road liable for damages occurring thereto.</p>

<p>1. A bill which seeks to cancel a sheriff’s deed to property of the complainant and remove a cloud on his title on the ground that the judgment under which the sale was made was rendered by a court which had no jurisdiction, is not without equity.</p> <p>2. While the county surveyor’s duty includes the making of any survey in which the county is interested, when required so to do by the ordinary, yet commissioners appointed by the ordinary to lay out new militia districts or change the lines of those already in existence are not limited to the employment of the county surveyor to assist them in so doing.</p> <p>3. One question in a case being whether the residence of a person sued in a justice court was in the district where suit was brought, or whether it had been transferred to another district by a change of lines, it was competent to show by witnesses who knew the old and new lines how the residence of the defendant had been affected by the change. The lines of the militia districts were mat ters of record, but the location of the defendant’s house in respect thereto could only be proved by parol.</p> <p>4. A judgment founded on a suit in a justice’s court which had no jurisdiction of the person of the defendant is void, unless the defendant waived jurisdiction or appeared and pleaded to the merits.</p> <p>5. The verdict is supported by the evidence.</p>

<p>Actions. Damages. False Imprisonment. Non-suit. Verdict. New Trial. Evidence. Witness. Before Judge Hardin. City Court of Savannah. May Term, 1881.</p> <p>Maud Wray brought an action of trespass against Mary Thorpe, alleging that the latter did “unlawfully, without lawful warrant or authority, and in bad faith, imprison and detain your petitioner, falsely pretending that your petitioner was guilty of the crime of perjury,” causing damage, etc. The defendant pleaded the general issue and justification.</p> <p>On the trial, the evidence for the plaintiff was, in brief,as follows: The plaintiff boarded in the defendant’s house. About January 20th, she had a difficulty with one Annie Phillips, another girl who boarded in the house, which resulted in a fight. Plaintiff was arrested at the instance of Annie Phillips on two warrants, one for assault and battery, the. other a peace'warrant. Being unable to give bond, she remained in jail till next day, when a bond was . given and she was released. Subsequently she pleaded guilty to the charge of assault and battery, and was fined $25.00. She preferred doing this to having the publicity of a trial, although not guilty. After the difficulty with Annie Phillips, plaintiff went to another place to board. On January 2ist, 1881, she returned to defendant’s house to pack and carry away her trunk. She was met by defendant, who ordered her to leave, and accused her of threatening to break up the furniture. This was denied by her and affirmed by another boarder, resulting in a slight altercation. The defendant continued to order her to pack up and leave ; cursed and abused her, and threatened to “fire” her down the steps. On January 24th, she swore out two warrants against defendant, one for keeping a lewd house, and the other for committing a breach of the peace. After doing this, she was advised by her counsel, who, knowing from professional observation in other cases the revengeful character of defendant and her severe treatment of her boarders who offended her, anticipated a counter-warrant, not to return home that night. She spent some time in the room of one Kaufman, over his bar-room, and then went to the office of her counsel, where she was arrested about six or seven o’clock, P. M., on a warrant sworn out by defendant, charging her with perjury in making the affidavit on which the peace warrant was based. The affidavit and warrant under which this last arrest was made were as follows:</p> <p>“Office of W. H. Woodhouse.</p> <p>State of Georgia — Chatham county.</p> <p>Before me, W. H. Woodhouse, in and for the county of Chatham, in the state of Georgia, personally came and appeared Mary Thorpe, who, being duly sworn, deposeth and saith, that to the best of deponent's knowledge and belief, Maud Wray, of said county, is guilty of the offense of perjury by falsely swearing before Waring Russell, a justice of the peace, that deponent ‘threatened and abused Maud Wray,’ said affidavit being made to produce the arrest of deponent in said county, January 24th, 1881.</p> <p>Sworn to and subscribed before me, at Savannah, county and state aforesaid, this the twenty-fourth day of January, A. D., 1881.</p> <p>Mary Thorpe,</p> <p>W. H. Woodhouse.</p> <p>“State of Georgia — Chatham county.</p> <p>To any Sheriff, Deputy Sheriff, Coroner, Constable, or Marshal of said State — Greeting:</p> <p>You are commanded forthwith to apprehend the body of Maud, Wray, charged with the offense of perjury, and to bring her before me, or some other judicial officer of this state, to answer the said complaint and to be further dealt with according to law.' You will also levy on a sufficiency of property to satisfy the cost of this proceeding, etc.</p> <p>Given under my hand and seal, at Savannah, county and state aforesaid, this the twenty-fourth day of January, A. D., 1881.</p> <p>W. H. Woodhouse, [l.s.]</p> <p> J. P. -county, Georgia. </p> <p>Under this warrant plaintiff was arrested and carried before Woodhouse, the justice of the peace who issued it, Kaufman offered to go on her bond, but was refused, because his property consisted entirely of personalty. He offered to place in the hands of the arresting officer a certified bank check for the amount covered by his surety-ship, but this was also refused. He subsequently obtained a satisfactory bondsman, and plaintiff was released after a detention of two or three hours. The condition of the bond was for plaintiff’s appearance at the next term of Chatham superior court, to answer any indictment, etc. In a few days after this her bondsman desired to release himself, and she was again arrested by a constable serving in the court of Naughton, another justice of the peace of Chatham county. Her counsel placed the warrant in the hands of the justice, he set a time for the hearing, had defendant (Thorpe) subpoenaed, and notified her counsel. At the time set for the hearing, no one appearing for the prosecution of the case, the statement of Maud Wray was taken, and she was dismissed. She suffered much annoyance from this arrest. The other girls in the house did not like her because she made more money and had more privileges than they did. No one was present at the conversation between her and defendant which formed the basis of the peace warrant. Defendant’s treatment of her boarders was very domineering, and was violent towards those who displeased her.</p> <p>The evidence for the defendant was, in brief, as follows :•</p> <p>She and several of her witnesses, who stated that they were present at the interview of January 21st, 1881, denied any violence on her part, and set up that plaintiff had been drinking and had beaten Annie Phillips badly,, and threatened to break some of defendant’s furniture (as one of the boarders reported), and that on the 21st of January, when she came in, defendant instructed her to. pack up and leave, and sent out after a constable, who' was present during a portion of the time when plaintiff was. packing. There was much testimony from defendant and her boarders tending to impeach the plaintiff. It also appeared that she swore out the warrant for perjury under the advice of counsel; that the affidavit was sworn to before Woodhouse, who was a justice of the peace in Chatham, county, and was by him attested and the warrant issued but he omitted to attest the affidavit with his official signature. At the time of the hearing before Justice Naughton defendant (Thorpe) was sick and could not attend ; and her counsel also advised her that Naughton had no. jurisdiction of the case.</p> <p>As to the feelings which prompted the suing out of the warrants and counter-warrants between the parties, the evidence was neither lucid nor consistent; but it was quite evident that each party desired to give the other trouble.</p> <p>The jury found for the plaintiff $755.00. Defendant moved for a new trial on the following among other grounds:</p> <p>(1.) Because the court overruled the motion for a non-.suit made by the defendant.</p> <p>(2.) (3.) (4.) Because the verdict is contrary to law and ■evidence and is excessive.</p> <p>(5.) Because of the newly discovered testimony of two witnesses. [The affidavits attached to this ground show that the object of the newly discovered testimony was the impeachment of the witnesses for the plaintiff.]</p> <p>(6.) Because the court erred in overruling the objection of defendant to the admission of plaintiff’s answer to the question put by her counsel, whether she had not been arrested a second time on the same warrant after she had given bond.</p> <p>(7.) (8.) Because the court erred in ruling that the plaintiff could not be compelled to answer the question whether she was not an inmate of a house of prostitution at the time the warrant was sued out, plaintiff stating that it would bring disgrace upon her.</p> <p>(9.) Because the court erred in overruling the objection of defendant to the plaintiff’s stating her reason for pleading guilty to the offence of assault and battery, and in admitting said evidence both in the direct and re-direct evidence of said witness. [The court certified that the fact that plaintiff pleaded guilty was drawn out by counsel for the defendant, and the cause of the plea was allowed to be shown in rebuttal.]</p> <p>(10.) Because the court erred in admitting the evidence of Kaufman, a witness for plaintiff, as to the offers of said witness to become security for plaintiff at the time of arrest, and to the efforts of Mr. Russell (her counsel) to have the bail reduced, defendant objecting upon the ground that she was not responsible for the acts of the officer after the arrest.</p> <p>(11.) Because the court erred in ruling in the presence of the jury in the language following: “All sufferings of the plaintiff may be considered as part of the damages, when they are the natural result of the taking out of the warrant.” [The court certified that no formal ruling was made on the point, but that he considered this a correct statement of the law.]</p> <p>(12.) Because the court erred in admitting the evidence of Russell as to how many warrants were issued against the plaintiff at the instance of the defendant, the defendant objecting to the admission of the evidence. [The witness stated that there was only this one that he knew of.]</p> <p>(13.) Because the court erred in admitting the evidence of said witness as to the offers of^Kaufman made to the constable to become security for appearance of plaintiff, over the objection of defendant that she was not responsible for the acts of the officer.</p> <p>(14.) Because the court erred in refusing to allow an amendment of the affidavit on which the warrant for jury was based, by the addition of the letters or words denoting his office to the signature of the officer, he being then in court ready to testify that he had taken said affidavit as a justice of the peace, and through inadvertence failed to attest said affidavit officially.</p> <p>(15.) Because the court refused the motion for a non-suit made by the defendant after the close of the plaintiff’s evidence, upon the ground that the evidence proving that the arrest and detention were by virtue of a warrant, the action of trespass for false imprisonment would not lie and case was the remedy.</p> <p>(ió.) Because the court erred in deciding that the warrant upon which the arrest was made was void, because it did not contain the recital that said warrant issued on oath or affirmation.</p> <p>(17.) Because the court erred in refusing the motion of defendant to have the witnesses for the plaintiff excluded from .hearing the evidence of defendant and her witnesses after the witnesses for the defendant had been so excluded. [The court certified that defendant’s counsel made this motion after plaintiff closed, and that no witness was afterwards intro duced for the plaintiff.]</p> <p>(18.) (19.) (20.) (21.) (22.) Because the court erred in admitting the evidence of plaintiff over the objection of defendant as to the manner in which defendant treated her boarders, especially when they attempted to leave her house. [The court certified that the defendant first introduced evidence concerning her manner of treating her boarders, and this evidence was introduced in rebuttal.]</p> <p>The motion was overruled, and defendant excepted.</p>

<p>A testator made the following bequest: “ I give and bequeath to my daughters, Dora W. and Martha O'. Hardaway, the tract of land on which I now reside (describing it), .and also another tract of land (describing it). Both tracts together I value at $11,000.00. I also give t0 each 0f my two daughters one bedstead, bed and bed furniture, which will be four hundred dollars each, more than I have given to my son, Wm. M. Hardaway; and, as I wish to (make) them all three equal, I direct piy executors to pay over to my son Wm. M. Hardaway, four hundred dollars from other parts of my estate. I give the above named legacies to my daughters free from the debts, liabilities, or control of any husband they may have; and should either or both of my two daughters above named die without child or children, then all the legacies given them in this item shall vest in and be considered as my estate : ”</p> <p>Held that the words in the above item do not create an estate tail in the two daughters, but convey a fee simple estate to them defeasible upon their dying without child or children ; that such is the intention of the testator, as gathered from the above item, and nothing inconsistent therewith appearing elsewhere in the entire will, the construction thereof by the court below is right.</p>

Charge of Court. Libel. Verdict. Before Judge POT-TLE. Taliaferro Superior Court. February Term, 188 r. A. G. Beazley and his wife, Emma, brought suit for libel in the superior court of Taliaferro county against certain female defendants, members of the Ladies’ Benevolent Society, organized for the purpose of erecting a fence around the public cemetery in the town of Crawfordville, of which society the plaintiff (Mrs. Beazley) was a member.

Laws. Comity of States. Damages. Railroads. Verdicts. Before Judge HlLLYER. Fulton Superior Court. October Term, 1881. Tanner brought suit against the Atlanta and Charlotte Air Line Railway Company. The declaration contained two counts, the first for an injury to one of plaintiffs legs, the other for the loss of his leg. The latter was the count relied on for a recovery.

<p>Removal to United States Courts. Practice in Supreme Court. Pleadings. Courts. Before Judge STEWART. Pike Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>Guardian and Ward. Administrators and Executors. Parties. Judgments. Evidence. Verdict. Before Judge Lawson. Jasper Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

Witness. Evidence. Trusts. Practice in Superior Court. Before Judge STEWART. Newton Superior Court. September Term, 1881. The following, in connection, with the decision, sufficiently reports this case: The present bill was filed by creditors to enforce a sale by Ansley, trustee, of certain property under leave formerly obtained by the said trustee for the sale of the trust property, and appropriation of the proceeds to the satisfaction of debts of the trust estate.

Judgments. Attorney and Client. Set-Off. Before Judge Lawson. Jasper Superior Court, October Term, 1881. -At the April term, 1S78, of Jasper superior court, Henry Roby recovered a judgment on an action of trespass for damages against David M. Langston, which suit was instituted by C. W. Jordan', Esq., as attorney, for the sum of $50.00, principal.

Ejectment. Title. Deeds. Charge of Court. New Trial. Easements. Tenants in Common. Before Judge Snead. Richmond Superior Court. October Term, 1881. On the 28th of September, 1880, Baker sued the Plank Road.

<p>1. One party to a suit may invoke allegations made in the pleadings of the other to his benefit, and dispense with other proof thereof than the averment of his adversary.</p> <p>2. If one who holds land has some mental weakness, and another claims the land, and fraudulently uses that weakness as a means of coercing the will of the owner so as to induce him to make a deed to a portion thereof, such grantor may have his conveyance set aside.</p> <p>3. If one bona fide claims land held by another, though the title of the claimant may be imperfect, he may make a valid compromise with the holder and receive a deed to a portion of the land, even though the holder had no other motive for making the conveyance than the belief that under the Scriptures a man ought to give up his property rather than go to law. It is not inequitable to invoke the belief of one’s adversary in biblical teachings in order to effect a settlement, provided no deceitful means, or artful practices, or fraudulent representations, or concealments, be used.</p> <p>4. While it is the duty of an agent to keep his principal informed concerning the business involved in his agency, there is no duty requiring the principal to communicate his business to his agent, unless he desires to do so.</p> <p>5. Though generally one party to a transaction cannot testify to matters which occurred between him and the other party since deceased, yet he is competent to rebut testimony concerning transactions or conversations testified to by living witnesses introduced by the opposing party.</p> <p>(a.) The certificate of the presiding judge as to the grounds of a motion for new trial is conclusive. Although a stenographer may have taken down the testimony, and the brief of evidence may have been approved by the judge, yet statements therein of objections made by counsel and rulings of the court will not overcome or vary the certificate of the judge to the grounds of the motion for new trial.</p> <p>6. The case was fairly submitted by the charge of the court.</p> <p>(a.) When the ends of justice require it, the presiding judge may recall the jury and re-charge them ; nor will it work a new trial if he reads to them their oath as jurors.</p> <p>7. The verdict is sustained by the evidence.</p>

Possessory Warrants. Partnership. Before Judge WILLIS. Marion Superior Court. October Term, 1881. Hammock sued out a possessory warrant before a justice of the peace, against E. J. & J. J: Ivey, for the recovery of a steam saw-mill, which had been in the legal and peaceable possession of the plaintiff.

Jurors. Practice in Superior Court. Damages. Negligence. Nuisance. Streets. Before Judge HlLLYER. Fulton Superior Court. October Term, 1881.

<p>Pleadings. Administrators and Executors. Abatement. Costs. Actions, Wills. Evidence. Judgments. Res adjudicata. Charge of Court. Before Judge LAWSON. Jasper Superior Court. October Term, 1881.</p> <p>John T. Marks cited D. M. Langston, as executor of John E. Langston, deceased, before the ordinary for settlement of his account as such executor, alleging that John E. Langston died in 1864, and by his will bequeathed him $150.00; that said will was duly and legally probated in common form : that Langston qualified as executor and took charge of the.estate in 1865. Petitioner prayed that Langston account to him for his legacy. This petition was filed August 12th, 1879. The case was heard before the ordinary November 2d, 1879, when judgment was had for defendant, and plaintiff filed his affidavit appealing to the superior court in forma pauperis. To this defendant, Langston, filed the following pleas in abatement:</p> <p>First. That at-term, 1876, of Jasper court of ordinary, Marks brought his suit for the same cause of action against defendant, which was appealed to the superior court, when at the April term, 1879, thereof said case was non-suited and dismissed ; and that said plaintiff has recommenced this suit for the same cause of action and subject matter without first paying the costs in said suit so dismissed.</p> <p>Second. That the pretended will of John E. Langston, under which plaintiff claims his legacy, was never legally probated and admitted to record, and its probate and record is a nullity, for the reason that its probate was not before the ordinary, but before B. T. Digby, a justice of the peace.</p> <p>Third. That the defendant had never assented to the legacy.</p> <p>He also pleaded to the merits that he had fully administered the estate of John E. Langston which came into his hands, and paid the same out to debts.</p> <p>He further pleaded the statute of limitations of 1869. Also res adjudicata, alleging that the guardian of said plaintiff, at the September term, 1870, of the court of ordinary, brought his suit for the same cause of action, which was heard and determined by the ordinary, and a judgment pronounced thereon in favor of defendant, and the case was dismissed ; that it was by plaintiff appealed to the superior court, when, at the October term, 1870, it was dismissed.</p> <p>The evidence pn the trial was, in brief, as follows:</p> <p>Plaintiff is the nephew of John E. Langston, deceased ; he never received the legacy left him by the will of his uncle. Is 27 years old ; was '27 the nth day of August last. The will of John E. Langston, by its third item, bequeathed to John T. Marks $150.00. To this will was attached the affidavit of G. W. Wyatt, one of the subscribing witnesses, made before Berry T. Digby, a justice of the peace, on the 9th of March, 1865. At the May term, 1865, of the court of ordinary, the ordinary passed an order admitting the will to record. Letters testamentary issued to D. M. Langston, dated May 9th, 1865.</p> <p>In 1870, Nathan T. Marks, as guardian ad litem for John T. Marks and others, as the legatees of John E. Langston, cited the executor to settle with them. On the hearing, the following judgment whs rendered :</p> <p> </p> <p>In this case it is ordered by the court that the statute of limitations be sustained so far as the transactions of the executor prior to first of June, 1865. The executor expressing a willingness to go into a settlement so far as the land is concerned, and the legatees refusing to proceed further with said investigation, it is ordered, that citation be dismissed, and that executor recover the sum of-dollars for costs of suit in this behalf. J. W. Burney,</p> <p> Ordinary." </p> <p>An appeal was taken from this judgment, and was dismissed.</p> <p>There was other testimony relating to the management of the estate by the executor, the receipt of Confederate money and loss thereof, the loss of certain debts due the estate, whether they could have been collected, etc.', none of which need be set-out here.</p> <p>The jury found for the plaintiff $150.00, with interest from May 9th, 1866. Defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the court overruled a demurrer of defendant’s counsel to the petition. [No demurrer appears in the record.]</p> <p>(2.) Because the verdict was contrary to law and the evidence.</p> <p>(3 ) Because the court erred in striking, upon motion of plaintiff, the first plea in abatement. The plaintiff moved to strike said plea ; the court announced that if plaintiff would amend his declaration by alleging his inability from poverty to pay the costs accruing on the former suit, for the same cause of action and dismissed at the April term, 1879, he would strike said plea. Plaintiff having so amended his said declaration, the court struck the plea.</p> <p>(4.) Because the court admitted in evidence, over the objection of defendant’s counsel, the copy of the will and order admitting the same to record, and overruled the second plea in abatement.</p> <p>(5.) Because the court refused to charge the jury, when so requested in writing by defendant’s counsel, on the subject of the plea of res adjudicata, that the judgment of the court of ordinary, if any such has been introduced in evidence, adjudging that the legatees of John E. Langston were bound by the statute of limitations so far as the matter, and transactions arising prior to June 1st, 1865, is conclusive upon all the parties thereto ; and if plaintiff was a party to a suit in which such judgment was rendered, then he is concluded thereby.</p> <p>(6.) Because the court erred in charging the jury that the plea of res adjtidicata was not sustained by the record introduced, and was, therefore, overruled, and the jury should not consider the plea of res adjudicata.</p> <p>* * * * * * *</p> <p>(14.) Because the court erred in refusing to charge the jury, at the request of counsel for defendant, made in writing, “ that if the jury believe from the evidence that the defendant acted in the sale of the property of said estate and the collection of the debts and notes of said estate at the time in the manner that prudent men acted and managed their own affairs, and failed to collect such debts by no fault of his, then he should not be held liable for failure to collect such debts.” Instead of this the court charged as follows: “ The defendant is chargeable with all money that came into his hands after his appointment as executor, or that ought to have come into his hands by use of ordinary diligence ; ordinary diligence is that care which prudent men exercise in the management of business.”</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Actual adverse possession of lands for twenty years gives good title by prescription against every one except the state or persons laboring under disabilities. The possession must be in the right of the possessor, and must not have originated in fraud ; but fraud will not be presumed unless proved.</p> <p>(a.) A prescription by mere possession will not extend beyond the actual possessio pedis of the prescriber.</p>

Garnishment. Practice. Justice Courts. Before Judge STEWART. Pike Superior Court. October Term, 1881. Willis obtained judgment against P'incher in a justice’s court at the December term of said court. On December 2d he garnished one Fincher, the process being returnable to the next (January) term of the court, which was held on the first Saturday in January, 1881. The garnishee answered on January 1st, that he was not indebted to the defendant. No traverse was filed.

<p>Statute of Limitations. United States Courts. Non-suits. Railroads. Roads and Bridges. Damages. Before Judge Fain. Whitfield Superior Court. October Term, 1881.</p> <p>Cox sued the East Tennessee, Virginia and Georgia Railroad for $500.00 damages for injuries sustained by his wife by reason of her falling out of a wagon in crossing the defendant’s track. The case was originally brought in the superior court of Whitfield county, was removed by the defendant to the United States circuit court, and that court granted a non-suit. Within less than six months plaintiff again brought his action, on the same grounds, in the superior court of Whitfield county. Plaintiff alleged in his declaration, and attempted to show, that the crossing at which the injury occurred was a private crossing on his farm, but had been kept in repair by defendant for a number of years, and had been used by plaintiff all during that time to go from one part of his farm to the other; that after so keeping the crossingin repair, defendant had neglected to fix the same, and that the accident to his wife resulted from the dilapidated condition of the crossing. The cause of action arose in 1874, the present suit was brought in 1880. To avoid the bar of the statute of limitations plaintiff proved that he had commenced his suit for the’ same cause of action in January, 1876; that it had been removed to the circuit court of the United States, and on the trial there a non-suit had been granted within less than six months before the commencement of this case. Plaintiff here closed his case, and on motion of defendant’s counsel, the court granted a non-suit, to which the plaintiff excepted.</p>

Administrators and Executors. Claims. Title. Evidence. Before Judge LAWSON. Greene Superior Court. September Term, 1881. Hall, as administrator of the estate of Reuben B. Armor, was proceeding to sell the real estate of said intestate, when a claim to seven Jiundred and fifty acres of land was interposed by Geo. A. Armor and Vernon Armor, through Spivey, as their next friend.

<p>Ejectment, Title. New Trial. Before Judge WELL-BORN. Lumpkin Superior Court. October Term, 1881.</p> <p>Parker brought ejectment against Martin et al. He relied on the trial upon a sheriff’s deed made in 1879, under a judgment against one Hamilton, which was recovered in 1869. He also introduced testimony to show that some years before the judgment Hamilton had prospected for gold on the land, and that no one else had been in actual possession, the land being vacant, until Martin put' a house on it in 1879, and placed one Burgess in it.</p> <p>Defendants relied on prescription in Martin under a deed made to him in 1852, by one William Martin, administrator. On the subject of actual possession by defendant, Martin, the evidence for the two sides was conflicting. 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 law and evidence.</p> <p>(2.) Because of newly discovered testimony. [This ground rested on the fact that plaintiff went to trial supposing a witness who had been subpoenaed by him was at court, but after going into the case he found the witness was not there. No motion was made for a continuance, but the case proceeded.]</p> <p>The motion was overruled, and plaintiff excepted.</p>

<p>Justice Courts. Judgments. Nullities. Dedication. Title. Deeds. Laws. Evidence. Jury. New Trial. Practice in Supreme Court. Before Judge Harris. Campbell Superior Court. August Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where interrogatories are prepared' for a witness, his residence must be stated therein, if known.</p> <p>(a.) It is not necessary to make objection to the interrogatories on that ground before the issuance of commission. We would suggest, however, that it would be well to enlarge the rule of court so as to require all objections which go to the application for a commission to be made before such commission is issued.</p> <p>2. Where a husband and father, as head of his family, applied for a homestead, a failure to allege out of whose property it was to be carved was not such a fatal defect as would render the proceeding void. The presumption would be that the homestead was to be carved out of his estate.</p> <p>(a.) Especially was the proceeding not void in this case where the application asked that a homestead should be set apart out of the place on which the applicant lived.</p>

<p>An action by a defendant in fi. fa. against the sheriff for the balance of funds in his hands arising from a sale under the fi. fa. after paying it off, is barred in four years.</p> <p>(a.) The provision in §2916 of the Code that suits for the enforcement of rights arising under statutes, acts of incorporation, “or by operation of law” should be barred in twenty years, was not intended to include every case of implied assumpsit, but the last clause applied to such rights as arose in connection with or through statutes or acts of incorporation, though not strictly under the very words thereof.</p>

<p>Practice in Supreme Court. Administrators and Executors. Wills. Before Judge Snead. Richmond SuperiorCourt. October Term, 1881.</p> <p>To the facts reported in the decision it is only necessary to add the following: Harrison, executor, filed his bill against the Mechanics’ and Traders’ Bank et al., praying an injunction to restrain certain creditors of the estate, and of one of the distributees thereof, from proceeding to enforce their claims, and praying also for direction as to distribution of assets, and conduct of administration. Certain of the defendants demurred to the bill. On the hearing of the demurrer the court overruled it, but struck cross-bills which had been filed by defendants, on demurrer by complainants. The demurring defendants excepted. Prior to this ruling, certain interlocutory rulings had been made referring the case to a master, etc., and on exception error was assigned on this, and the striking of the cross-bills, as well as the main ruling. All of the defendants were not served with the bill of exceptions. On argument in the supreme court, a motion was made to dismiss the bill of exceptions on the grounds stated in-the first four divisions of the opinion, which was decided as therein set forth.</p>

<p>Title. Interest and Usury. Equity. Debtor and Creditor. Contracts. Before Judge Pate. Twiggs Superior Court. March Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. A judgment may be amended so as to conform to the verdict on which it is founded after execution has been issued, or even after it has been satisfied.</p> <p>2. The judgment must be amended by an inspection of the record, including the verdict and pleadings; parol proof cannot furnish a ground of amendment not in the record. Especially is this the case after the lapse of years and the full execution of final process.</p>

<p>Equity. Practice in Superior Court. Landlord and Tenant. Debtor and Creditor. Before Judge Snead. Richmond Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where a ground of error alleged in the motion for a new trial was that the testimony of a named witness was admitted to impeach one of movant’s witnesses, without stating which one — it appearing that the same witness was used for the purpose of impeaching several witnesses of the movant, this court will not grant a new trial on.that ground.</p> <p>2. Where a witness introduced to impeach another stated that he had known the general character of the latter the year previous, that it was bad, and from it he would not believe such witness on oath; but that he did not know the general character of the impeached witness during the current year, nor that there had been any change in.the public estimation, but from his private knowledge of the witness he believed there had lately been reformation in him, such answers were competent to go to the jury under proper instructions of the court.</p> <p>(a.) The charge not being set out, will be presumed to be right.</p>

Homestead. Title. Ejectment. Estoppel. Before Judge Willis. Talbot Superior Court. September Term, 1881. Little et al. brought complaint for land against Hall. •Their title.rested on a deed made by Hall and his wife to them in March, 1878. Defendant insisted that the deed conveyed no title, and was a mere security for a debt. He offered an equitable plea alleging these facts, and praying that the land be sold, the debt paid, and the balance of proceeds paid to him.

Levy and Sale. Executions. Trusts. Title. Evidence. Before Judge CRISP. Stewart Superior Court. October Term, 1881. A fi.fa. in favor of Hart against Brown, based on a judgment rendered in 1869, was levied on a certain lot which was claimed by Overby. On the trial, plaintiff in fi.fa. offered to put the execution in evidence.

Amendments. Equity. Evidence. Deeds. Before Maston O’Neal, Esq., Judge pro hac vice. Mitchell Superior Court. November Term, 1881.

Deeds. Trusts. Title. Equity; Before Judge UNDERWOOD. Polk County. At Chambers. October 10th, 1881. E. H. Richardson, Jr., administrator, filed his bill against G. W. Featherston and his wife, alleging as follows: E. H. Richardson, Sr., the father of complainant, died on May 23d, 1880, intestate, possessed of a farm in Polk county, containing no acres of land. On April 4th, 188r, com plainant was appointed administrator of intestate.

Levy and Sale. Executions. Contracts. Claims. Before Judge Erwin. Franklin Superior Court. October Term, 1881. Knox sold certain land to Dorough, who in turn sold a part of it to Cobb, and subsequently a part to Tucker. Dorough held only a bond for titles from Knox, and Cobb .a bond fortifies from Dorough. Cobb sold to Ayers.

<p>1. Where a suit was brought against a husband and wife for money borrowed, and, upon plea by the latter that the debt was her husband’s, it was sought to bind her by showing that some of the money was used on a trust estate held by her husband -for her, it was competent to prove in rebuttal of this the character of the trust estate, as tending to show there was no necessity to borrow money therefor.</p> <p>2. In a civil case, where the jury cannot reconcile conflicting testimony, they may find a verdict according to the preponderance thereof ; such preponderance is considered sufficient to produce mental conviction.</p> <p>3. Juries should be left free to act without any real or seeming coercion on the part of the court. Still, where the court, after inquiry as to the probable agreement of the jury, gave them the rule as to the preponderance of testimony recited above, stated to them that there had been no mistrials since his administration began, and that if juries would follow his rule there would be no necessity for mistrials, and thereupon remanded them for further consideration, but did not intimate any opinion or otherwise coerce them, this will not necessitate a new trial.</p>

<p>Courts. License. Pilots. Darien. Certiorari. Practice in Superior Court. Before Judge FLEMING. McIntosh Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Jurisdiction. Judgments. Nullities. Claims. Before Judge Hillyer. Fulton Superior Court. April Term, 1881.</p> <p>On March 19th, 1872, Charles P. McCalla, as an informer, made affidavit that Varney A. Gaskill was indebted to the state of Georgia the sum of fifteen thousand five hundred and forty-eight dollars and fifteen cents, and that Gaskill was a non resident. He gave bond, and attachment issued in accordance with the act of December 15th, 1871. A levy was made, and a declaration, in attachment filed March 19th, 1872. During the next term (the April term, 1872,) of Fulton superior court, the following judgment was entered by agreement:</p> <p>“ On agreement among the state and the informant, both represented by counsel in open court, and the defendant, who appeared in person, it is ordered that the state of Georgia do recover in the above stated case the principal sum of eight thousand six hundred and forty-eight dollars, with interest from the ninth day of January, eighteen hundred and seventy- one, the one-half of said principal and interest to be paid by the first day of January next, the other half to be paid by the first day of November, eighteen hundred and seventy-three. Execution to issue lor the enforcement of said payments, if they are not punctually made, and also for costs. It is further ordered and adjudged on agreement as aforesaid, that this judgment, when paid, shall fully discharge the defendant, Gaskill, from all liability for the whole and for every part of the claim made against him in this case, not discharging any other person who may be liable for any part of said claim. It is further ordered and adjudged by the court, that out of the money which may be collected from the foregoing judgment, the informant, McCalla, and his counsel, shall be allowed the sum of twenty per cent on said recovery. By the court,</p> <p>John T. Glenn, Sol. Gen'l."</p> <p>Execution issued, and was levied on certain property to which C. B. Gaskill et al. interposed a claim. On the trial, these facts appearing, claimants moved to dismiss the levy on the ground that there was no judgment which was valid as against them. The court sustained the motion and dismissed the levy, whereupon counsel for the state excepted.</p>

<p>Contracts. Sales. Before Judge Pottle. Elbert Superior Court. September Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. While prior to 1861 the husband might permit his wife to keep her earnings and buy property during coverture, which she could hold as against him and volunteers under him, yet after receiving her funds, investing them in his own name, and holding property purchased therewith until the lien of a judgment against him had attached, he could not then set up her equity so as to defeat the title of a bona fide, purchaser under the judgment.</p> <p>(a.) Nor could that result be accomplished by the husband recognizing her equity'and allowing a deed to be made to her after the lien of the judgment had attached to the land.</p> <p>2. If a husband uses the money of his wife, with or without her consent, and thereby'acquires title in himself to property,'third persons who bona ficle take title for value to such property will be protected.</p>

<p>Roads and Bridges. Private Ways. Prescription. Before Judge Pottle. Madison Superior Court. September Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. The remedy by injunction and receiver given to all creditors against insolvent traders by the act of 1881 (acts 1881, page 124) is statutory, and in order to take advantage of it, it must appear that the defendant is insolvent and that it would be of benefit to the complainant to have the relief prayed for.</p> <p>2. An allegation of insolvency because the complainant’s claim was not paid at maturity on demand is not sufficient, where it appears that the debtor is possessed of unincumbered assets largely more in value than the complainant’s claim.</p> <p>(a.) That the real estate of the debtor has been mortgaged, does not help a creditor who has no interest in the mortgages. If he can not attack them, and they will consume all of the realty mortgaged, a receiver for the realty would be useless to him.</p> <p>(¿.) This case is strengthened by the fact that discovery was not wáived, and the answer fully meets the charge of insolvency.</p>

<p>Evidence. Verdict. Practice in Supreme Court. Arbitration and Award. Before Judge Fain. Bartow Superior Court. July Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. The sale of the Macon and Brunswick Railroad is valid and binding upon the state, and equity would hold the title good in the purchasers, though all the regulations prescribed for the manner of conducting it had not been literally complied with, if carried into execution substantially by the executive, the purchase money having been largely paid and the transaction virtually ratified by subsequent acquiescence of the legislative department. ’Under such circumstances, the case must be strong indeed to authorize judicial interference with the sale.</p> <p>2. By the lease and subsequent purchase of the road and its franchises, the present company known as the Macon and Brunswick Railroad Company acquired the right to extend and construct the road from Macon to Atlanta, subject to the limitations in the original and .amended charters of the company, subsequent legislation thereon, and the constitutional guaranty to the owners of property not to force them to part with any portion of it without just compensation.</p> <p>3. Though the state may previously have dedicated property along the direct line of said extension to other public uses, it has the reserved right to appropriate a necessary portion of it to other public use, provided such appropriation be made by express grant or necessary implication that such grant was intended ; for having parted with it for one public use, in the absence of such new grant, the presumption would be that it had not made another inconsistent with the first.</p> <p>4. If, therefore, the state herself had dedicated the ground embraced within the limits of the cemetery at Macon to the use of the public as a burying place for the dead, and the track of the proposed extension in the most direct line from Macon to Atlanta passed along the edge of the cemetery adjoining the Ocmulgee river, and was not inconsistent with the prior use of the ground for a cemetery, but passed over ground wholly unsuited to such use, the implication would be strong that the grant to construct the road on such direct-line, not being in conflict with the prior dedication, included the grant to pass over such unnecessary part of the cemetery.</p> <p>5. But where the city of Macon herself had dedicated the ground to the cemetery for herself, and by contract with the railroad company and for a valuable consideration had granted to the company the right of way through a portion of the former dedication not adapted to the former use and not interfering with any private lot conveyed by her to private persons, then it is clear that no such private person would be equitably entitled to interfere with the grant impliedly given by the state and expressly ceded by the city. This is especially so when such use will enure in the judgment of the city to the greater security of the former use and the general ornamentation of the cemetery. The particular improvement and adornment of his own lot is for the orivate judgment and taste of the owner; the general improvement and security and adornment of the-.entire .grounds is for the city speaking through her authorities ; particularly when they speak, as is conceded, the overwhelming voice of the citizens.</p> <p>6. Delay in applying for the writ of injunction until large expenditures have been made in acquiring the right of way on the line to the cemetery and in work done within it, and without notice to the company of any intention to make application therefor, will make equity more loth to stay the further progress of the work. The writ is designed to prevent, not to undo ; and without strong reason therefor, if delayed until progress at heavy cost has been made, the application should not be granted.</p> <p>7. Facts in dispute, with conflicting affidavits, are for the chancellor, and unless his judgment thereon shows an abuse of discretion, this court does not interfere. In this case his judgment thereon is overwhelmingly sustained.</p>

<p>A homestead is in the nature of a trust estate, and if it be sought to subject it by suit, the pleadings should show the grounds therefor- and the names of the cestui que trusti.</p> <p>(a.) A plaintiff seeking to subject a homestead set out his grounds therefor, in that he sued for certain described work thereon, and alleged the wife to be the beneficiary of the homestead ; the suit was against the husband and his wife. They pleaded to the merits, a judgment was had for the plaintiff before a justice, an appeal was taken, and a verdict found for the plaintiff. After levy of the fi.fa• issued thereunder, an affidavit of illegality was filed on the ground that the petition did not fully set forth the grounds of the liability of the homestead estate or the names of the cestui que trusts :</p> <p>Held, that the affidavit was properly dismissed on motion.</p>

<p>Criminal Law. Charge of Court. Before Judge WELL-BORN. White Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Before Judge Fain. Catoosa Superior Court. August Term, 1881.</p> <p>Reported in the decision.</p>

<p>Where one received money from another to be invested on their joint account in purchasing real estate, and in case they made no investment, to be returned, a fiduciary debt was not thereby created, so as to avoid the operation of the bankrupt act of 1867.</p> <p>(a.) Such facts did not create the party receiving the money a trustee or agent, but a partner; and hence are not covered by the cases touching agents.</p>

Evidence. Claims. Practice in Superior Court. Debtor and Creditor. Deeds. Fraud. Insolvency. Before Judge BROWN. Floyd Superior Court. March Term, 1881. Held: and that the onus to show the solvency of H. D. Cothran at the -time said deed was made was on the claimant. Thereupon, after argument had, the court held that the claimant’s counsel were entitled to open and conclude the case.

Criminal Law. Charge of Court. Before Judge TOMPKINS. Chatham Superior Court. December Term, 1881. Grace Washington was indicted for assault with intent to murder. On the trial, the evidence for the state was in brief, as follows : The prosecutrix, Rosa Green, lived in the same house with Martha Shelman.

<p>Criminal Law. Charge of Court. Before Judge TOMPKINS. Chatham Superior Court. December Term, 1881.</p> <p>Grace Washington was indicted for assault with intent to murder. On the trial, the evidence for the state was in brief, as follows :</p> <p>The prosecutrix, Rosa Green, lived in the same house with Martha Shelman. On coming home one day about i o’clock, she found that Martha and defendant, who was with her, had eaten some of her meat; a quarrel ensued between these three, Martha and defendant taking sides against the prosecutrix, telling her to leave the house, and using abusive language towards her. Rosa went out and returned at night, when the three meeting again in the room, the difficulty again arose among them. Grace remarked to Martha, “ Martha, come shell that God damned n¡ggeri and get rid of her.” She also told Martha to “get her satisfaction.” Martha stabbed Rosa in the neck with a pocket knife, which had been given to her by Grace, the defendant. Rosa was rescued by the timely intervention of one William Jenkins, who was sleeping in the room.</p> <p>The evidence for the defence was as follows: The defendant’s statement denied all connection with the difficulty; one witness (Martha) was introduced, who testified that the quarrel was between Rosa and herself, and the defendant had nothing to do with it. The jury found a verdict of guilty. The defendant moved for a new trial on the following grounds :</p> <p>(1.) Because the verdict was contrary to the law and evidence.</p> <p>(2.) Because the court erred in not charging the jury the law as to the offence of stabbing under section 4369. of the Code of Georgia.</p> <p>(3.) Because the court erred in charging the jury that if defendant was present when the injury was inflicted upon Rosa Green, and encouraged the commission of the injury,, then she is equally guilty, though she made no attempt to strike or cut Rosa Green.</p> <p>The court overruled the motion, and the defendant excepted.</p>

Practice in Supreme Court. Railroads. Damages. Laws. Comity. Before Judge POTTLE. Richmond Superior Court. April Term, 1881. To the October term, 1877, of Richmond superior court Nix, administrator of Brown, brought suit against the. South Carolina Railroad for the homicide of his decedent.

<p>Evidence. Deeds. Registration. Levy and Sale. Constables. Executions. Partnership. Before Judge Mershon. Glynn Superior Court. May Term, 1881.</p> <p>Reported in the decision.</p>

<p>Wills. Legacies. Before Judge HlLLYER. Fulton Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>Partnership. Contracts. Bankruptcy. Before Judge Erwin. Clarke Superior Court. November Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. One who buys with notice of an equity buys subject thereto.</p> <p>2. Actual possession of land is notice to the world of the rights of the occupant therein, and one who buys while such actual possession continues is affected with notice.</p> <p>(a.) D. sold land to H. and gave him bond for titles, only a part of the purchase money being paid. H. sold a part of the land to B., receiving a part of the purchase money and giving bond for titles ; B. went into actual possession. Afterwards H. sold to F. the remaining portion of the lot (less a small lot sold to a third party), gave bond for titles, and agreed to erect certain improvements. After paying H. in full, F. being alarmed about the title, took an assignment of the bond for titles held by H., paid the balance due thereon, and took a deed from D.:</p> <p>Held, that F. was subrogated to the position of H. and not of D.; that he bought with notice ; and upon the payment of balance of purchase money due by B., equity will compel F. to make titles to him. Especially so, where, at the time of taking the assignment of the the bond from H., F. agreed to protect B.</p>

<p>1. Where a bill was filed to settle an estate, and a decree rendered in favor of some of the heirs against the administrator for a certain amount (specifying the amounts due them), and the decree provided that if the estate of one of the heirs who owed the estate and was dead should prove insolvent, then the others should contribute fro rata to make up the deficiency, in a subsequent suit by one of the heirs (or his assignee) on the administrator’s bond for failing to pay the amount due him under the decree, it could be pleaded and proved that the estate of the deceased heir was insolvent, and the amount which the plaintiff was liable to pay on account thereof could be set off against his claim.</p> <p>2. A judgment on which no fi. fa. has been issued for seven years becomes dormant.</p> <p>3. - After a judgment has become dormant, but before the time for reviving it has expired, it is an evidence of debt; but to establish a devastavit of assets of the estate, and render the administrator and his sureties liable on his bond for not paying such debt, it is necessary to prove inability or refusal on his part to do so.</p> <p>(a.) A return of nulla bona cannot be made on a fi. fa. after it has become dormant.</p> <p>4. Though the same person may be the administrator of an intestate and also of one of his heirs, on a bill by him to settle the estate including all the heirs as parties, a decree may be rendered determining the status of the deceased heir as well as the others. Such a decree will not be void on the ground that the same party is both the complainant and a defendant. Especially will it not be held void when collaterally attacked by one of the heirs who has for years acquiesced therein.</p>

<p>Contracts. Actions. Indorsement. Written Instruments. Before Judge HlLLYER. Fulton Superior Court. Fall Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. The court below was right in holding that the verdict was proper' as to two of the defendants.</p> <p>2. While the judge of the superior court is clothed with ample power to grant or refuse new- trials on’terms, yet where the suit and recovery was against three as joint contractors, the judge could not-refuse a new trial on condition that the plaintiff should release and cancel the judgment as to one of the defendants, as to whom' the evidence failed to support the verdict.</p> <p>3. The power of the supreme court is more ample as to moulding the case in the court below. This court may award such order and direction to the cause in the court below as may be consistent with' the law and justice of the case.</p> <p>(a.) The verdict and judgment being right as to two of the defendants, and unsupported as to the third, it is therefore ordered that a new trial be granted, unless the plaintiff will dismiss his suit as to the last named defendant, and in that event that it be refused. The question of contribution between him and his co-defendants-is left open.</p>

<p>Damages. Negligence. Railroads. Practice in Supreme Court. Before Judge UNDERWOOD. Floyd Superior Court. September Term, 1881.</p> <p>Reported in the decision.</p>

<p>Murder. Jurors. Practice in Superior Court. Criminal Law. Before Judge Harris. Carroll Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. Where two parties purchased certain land, paying one-third of the price, and taking bond for titles, and one as agent for the other sold to a purchaser who bought bona fide and on the assurance of the vendors that the title was good, and without notice that any part of the purchase money was unpaid, if subsequently the original vendor sued for the balance of the purchase money, obtained judgment and levied on the land, and the last purchaser thereupon paid the amount of the fi.fa., took a transfer of it and also a deed from the plaintiff, he could nevertheless proceed to enforce the fi. fa. against his vendors.</p> <p>2. The verdict is supported by the evidence.</p> <p>3. Where a defendant in fi.fa. has sought an injunction against it,, alleging that he was jointly interested with his co-defendant in the consideration of the debt, after the dismissal of the bill he will be estopped by his solemn admission in judico from setting up by affidavit of illegality that he was a mere security and had been discharged.</p> <p>4. The case appears to have been brought to this court for delay only, and damages are awarded against the plaintiff in error.</p>

<p>Railroads. Damages. Negligence. Contracts. Practice in Supreme Court. Before Judge CLARK. Fulton Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>Usury. Pleadings. Practice in the Supreme Court. Before Judge WILLIS. Harris Superior Court., October Term, 1881.</p> <p>Reported in the decision.</p>

<p>In the absence of any contract, a tenant may remove fixtures erected by him during the continuation of his term, or after its expiration, while he remains in possession under his landlord. If, after the expiration of his term, he surrenders the property without removing the fixtures, they become a part of the realty and belong to the landlord; and he cannot afterwards return and remove them.</p> <p>(a.) A custom was shown in this case to allow saW-mill men to remove their fixtures, but no time for allowing such removal being shown, it will be construed according to the general law.</p>

<p>Where a homestead has been set apart in certain property, but the-proceeding is void as to a certain creditor for want of notice to him, the head of the family may re-apply, give him notice and have the property set apart as against him. The first proceedings networking an estoppel against the creditor without notice, does not estop the family from having a homestead set apart as against him.</p>

<p>Pawns. Contracts. Banks. Corporations. Damages. Debtor and Creditor. Fraud. Pleadings. Before Jos. A. HUNT, Esq., Judge pro hac vice. Monroe Superior Court. August Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. When a year’s support has been set apart by the ordinary from the estate of a decedent, it vests in the widow and children; its object is their support; and if it be in land, the sale thereof and application of the proceeds is a necessary implication, although there is no express provision of law for that purpose. Therefore, where the widow, with the approval of the ordinary, sells land so set apart, and appropriates the proceeds thereof to the support of the heirs at law, they cannot recover it because no express power is given to the ordinary to order the sale, or because his approval of such sale was irregular.</p> <p>2. Every presumption is in favor of the judgment of the ordinary setting apart a year’s support, and it cannot be collaterally attacked.</p>

<p>Actions. Amendments. Damages. Contracts. Railroads. Negligence. Before Judge Lawson. Greene Superior Court. September Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>Parent and Child. Habeas Corpus. Certiorari. Practice in Superior Court. Before Judge POTTLE. Elbert Superior Court. September Term, 1881.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. Contracts. Before Judge Simmons. Bibb Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>An affidavit to foreclose a lien which alleged that the defendant was a merchant selling dry goods and groceries, and that he was indebted to the deponent “for services rendered as clerk, laborer and general service in said store,” was not demurrable as not setting out the fact that the plaintiff was a laborer sufficiently to furnish a foundation for a fi. fa. On a money rule in wnich such a fi.fa. claimed a fund, it should not have been quashed on motion ; if the fact that the plaintiff was a laborer was contested, the question should have been raised by a traverse, and submitted to the jury.</p> <p>Crawford, J., dissenting.</p>

<p>I. 1. The acts and conduct of one accomplice during the pendency of the wrongful act, not only in its perpetration, but also in its subsequent concealment, are admissible against the other. So also are his sayings pending the common criminal enterprise.</p> <p>2. A confession of larceny of meat by an employó, induced by a statement from his employer that “ if he would bring up the meat, there was a probability the whole matter could be settled,” comes within the prohibition contained in section 3793 of the Code, and should not have been admitted.</p> <p>3. The offence was not made out without the admission of the confessions, and a new trial is ordered.</p>

<p>1. Affidavits of illegality are amendable instanter, upon motion and leave of the court granted, by the insertion of new and independent grounds, whenever the defendant will swear that he did not know of such grounds when the original affidavit was filed.</p> <p>2. That a case involves other matters than those of account does not make it necessary to send it in its entirety to an auditor. He examines and reports upon such matters only as he is directed to consider. Upon the return of such a report, exceptions of fact having been filed, the verdict of a jury thereon settled only the facts involved in the issues made, leaving other branches of the case undisposed of as before.</p> <p>3. Execution may be issued against one who has funds of a county in his hands, or against a defaulting tax collector and the sureties on his bond ; but an execution founded on his bond cannot be enforced on the ground that he has public money in his hands, where it appears that he did not in fact give a bond. To hold him liable for public funds held by him, a proper execution must be issued.</p>

<p>A private stable in a city is not necessarily a nuisance, though erected near the line'separating the lot of the owner from that of a neighbor, whose house is near the dividing line. But he who so builds must, at his peril, guard against such construction, as by the ordinary use of the stable would disturb adjacent owners by the noises produced, or against such use thereof as will cause stench or like annoyance upon the property of his néighbor.</p> <p>(a.) Mere allegations of speculative or contingent injuries, with nothing to show that they will in fact happen, do not require an injunction.</p> <p>Jackson, C. J., concurred on special grounds.</p>

<p>Verdict. Witness. Criminal Law. Before Judge CARSWELL. Jefferson Superior Court. November Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. If credit be given to an agent individually, payment cannot be afterwards demanded of his principal; and in a suit between the creditor and the principal involving the state of their accounts, testimony as to credits given to the agent individually is irrelevant.</p> <p>2. A payment to an agent who is known to be such by releasing his own debt is not a payment to the principal.</p>

<p>1. Where land was sold, a part of the purchase money paid, a bond for title given, and a note of the purchaser held for the balance, the title remaining in the vendor was subject to levy and sale under a fi.fa. against him. The purchaser would obtain only such interest as the vendor retained, and be subrogated to his rights.</p> <p>2. The evidence as to the statute of limitations was not such as to require a verdict for the claimant.</p>

<p>1. Where the petition to allow an information in the nature of a quo warranto to be filed has been granted, and the information has been filed by the solicitor general, the state is a party to the proceeding, and on exception to the judgment dismissing the case, the state is a necessary party to the bill of exceptions.</p> <p>2. The title to an office will not be tried at the instance of a claimant thereof after his term has expired and no judgment of ouster can be pronounced.</p> <p>3. Every citizen of a town has an interest in its municipal offices which will support a quo warranto proceeding to test the right of incumbents thereto.</p> <p>Jackson, C. J., concurred dubitante as to this point.</p> <p>4. A municipal corporation is a creature of legislation, and its modes of government and the officers conducting the same may be changed by the legislature.</p> <p>5. The legislature has power to pass all acts not forbidden by or obnoxious to the constitution, and the presumption is in favor of the constitutionality of such acts until they are clearly shown to be unconstitutional.</p> <p>6. By the constitution of 1868 the legislature was authorized to provide for the creation of county commissioners in such counties as miglít require them, and to define their duties. That commissioners were created for a county in which was located the town of Darien, and one of the duties put upon them was the exercise of the corporate authority of such town, was not unconstitutional.</p> <p>(a.) The act of 1871, creating a board of commissioners for the county of McIntosh (Acts 1871, p. 265), is not unconstitutional as containing more than one subject matter or matter different from the title of the act.</p>

Criminal Law. Jurors. Practice in Superior Court. Evidence. Presumptions. Practice in Supreme Court. Before Judge HARRIS. Carroll Superior Court. October Term, 1881. Moon was indicted for the murder of J. D. Ward. On the trial, the evidence for the state was, in brief, as follows : The defendant cherished ill feeling against the deceased on account of some previous misunderstanding between them.

<p>1. If an employéof a railroad company be injured without fault or negligence on his part through the negligence of another employé, he may recover.</p> <p>2. It is the duty of a railroad company to furnish its employés reasonably safe tools and materials for their use in its service, but an. employé who is aware of the dangerous condition of any particular tool or instrument, and nevertheless uses it, cannot have redress for an injury resulting therefrom.</p> <p>3. Nor will the fact that the employé knowingly undertook to use a dangerously defective tool under the immediate command of a superior employé, give him a right to recover.</p> <p>4. A question not made in the court below will not be considered here.</p>

<p>1. Sayings of one member of an alleged partnership, not made in the presence of the others, or brought to their knowledge and assented to or ratified by them, are inadmissible to establish the existence of the partnership so as to bind the other parties.</p> <p>2. Sayings or writings of a party in his own favor, made in the absence of the other party, are not admissible on behalf of the person making them.</p> <p>3. A charge not applicable to the facts of the case should not be given.</p> <p>(a.) Where an agent employs another to aid him in the conduct of his agency, the person so employed does not become a partner of the agent as to the principal, and the agent may sue the principal for commissions without joining such person with him.</p>

<p>1. It is the duty of the state treasurer to keep safely the funds of the state, and to pay out the same only upon the warrants of the governor, when countersigned by the comptroller general, excepting drafts of the president of the senate or speaker of the house for sums due to the members or officers thereof. It does not become a ministerial duty on his part to pay bonds of the state until an appropriation shall have been made for that purpose, an executive warrant issued and countersigned by the comptroller general; and these are conditions precedent to the grant of a mandamus to compel payment by him.</p> <p>2. Article vil, section xm, paragraph 1 of the constitution of 1877, which declares that the proceeds of the sale of the Western and Atlantic, Macon and Brunswick, or other railroads held by the state, or any other property owned by the state, whenever authorized to • to be sold, shall be applied to the bonded debt of the state, and to no other purpose, does not amount to a specific appropriation or application of funds to any particular bonds, so as to authorize their payment directly by the treasurer.</p> <p>3. The act of 1875 is not unconstitutional. It is merely a safeguard to prevent the payment of bonds which may have been already paid, and a means of detecting the spurious and separating them from the good. It neither repudiates bonds, nor takes away any remedy from the holder, nor impairs the state’s obligation to pay any valid bonds.</p>

<p>New Trial. Verdict. Trusts. Before Judge ERWIN. Hall Superior Court. September Term, 1881.</p> <p>Reported in the decision.</p>

<p>Bankruptcy. Principal and Surety. Evidence. Before Judge Mershon. Houston Superior Court. October Term, 1881. '</p> <p>Reported in the decision.</p>

<p>1. Where an application to remove a caseto the circuit court of the United States was made under the act of congress of March 2d, 1867, on the ground of local prejudice, it could be made at anytime before the trial or final hearing in the state court.</p> <p>(a.) The act of 1867 was not repealed by the act of 1875.</p> <p>2. In order to be entitled to remove a case to the United States court on the ground of local prejudice, under the act of congress of 1867, it is not essential that the applicant should have been a non-resident of the state at the date of the commencement of the shit.</p>

<p>Homestead. Statute of Limitations. Fraud. Before Judge Harris. Campbell Superior Court. August Term, 1881.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors. Ordinary. .Judgment. Before Judge Simmons. Bibb Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. One entry of “no personalty” by a constable on a justice court ft. fa. is sufficient to authorize a levy on real estate ; such entry need not be repeated at intervals to render a levy on realty valid.</p> <p>(a.) An entry of “ no property to be found ” was made by a constable on a justice court ft. fa.; seven days thereafter a horse was pointed out by the owner of the ft. fa.; it was levied on, sold, and the proceeds applied to older executions. Without further entry, a levy was made on realty :</p> <p>Held, that the levy was not void, and a sheriff’s sale thereunder conveyed the title of the defendant in ft. fa.</p> <p>2. A sheriff’s deed alone is not sufficient to show title in the purchaser ; it must appear that the title was in the defendant, or that he was in possession after the date of the judgment on which the sheriff’s deed was based.</p>

<p>Case. Damages. Municipal Corporations. Before Judge Fain. Bartow Superior Court. July Term, 1881.</p> <p>Reported in the decision.</p>

<p>Equity. Guardian and Ward. Fraud. Before Judge UNDERWOOD. Polk Superior Court. August Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

Amendment. Evidence. Interrogatories. Railroads. Damages. Negligence. Before Judge POTTLE. Hancock Superior Court. April Term, 1881.

<p>1. That a surety is released from liability because of a change in the contract between the principals whereby the risk of the surety is increased, is a plea which the surety has the privilege of making, or not at his option. It is not a plea of which the principal can take advantage.</p> <p>(a.) If on the default of a principal his sureties were presumptively liable on his bond, and compromised with the payee thereof for a sum less than the amount of the bond, and the principal ratified the compromise, they could hold him liable for the amount of the compromise, and could transfer to the payee of the bond the security which they held from the prinicpal for their indemnity.</p> <p>2. Where title was transferred by deed, and a contract not of record entered into between the parties, one who received title under the grantee of the deed was affected by the recitals thereof, but not by the extraneous contract unless actual notice thereof was brought home to him.</p> <p>3. The act of 1868 conferred authority on the Georgia Railroad to elect an officer to conduct its banking business and to require a bond of him.</p> <p>(a.) Full banking powers weie conferred by the act of October 19th, 1870.</p> <p>(b.) The bond in this case provided for changing so as to meet the varying business of the company.</p>

<p>An instrument signed by a husband and wife had the form of a deed; after the description, the instrument stated that the condition of the sale was that certain notes had been given by the husband to the grantee. It provided that if the debt should be paid, the deed should be void; that if the makers failed to pay, the creditors should give notice by certain advertisement, and sell at public outcry the equity of redemption, pay the notes and expenses of sale, and pay over the balance to the debtors. Homestead was waived :</p> <p>Held, that the instrument was a mortgage only and conveyed no title ; and upon the death of the husband the wife was entitled to a year’s support out of such property.</p> <p>(a.) The title being in the husband, a sale of the property after his deat’h would not affect the wife’s right to a year’s support.</p>

<p>1. Intimate association by a sheriff with the jury while they are charged with a cause, such as occupying the same bed, is reprehensible, and would be sufficient ground for setting aside a verdict, if it be not satisfactorily shown that no improper influence was exerted by such officer, and no injury resulted to the defendant therefrom.</p> <p>2. Misconduct on the part of the jury in a criminal cause, from which injury might have resulted to the defendant, throws the burden on „ the state to show affirmatively that the defendant was not injured thereby.</p> <p>3. When such alleged misconduct is the use of spirituous liquors by the jury during the trial, affidavits from those persons who used the liquors, and others of the jury, showing that they were used with great moderation, and not to such an extent as to even slightly affect the capacity of any member of the jury, will release the state from this burden.</p> <p>4. Though the person outraged swears that the crime of rape was actually committed by the prisoner, yet where an attempt is made to impeach her testimony, and her age and the circumstances surrounding the criminal act render her testimony on this subject doubtful, the jury may disregard it and find the accused guilty of an assault with intent to rape, there being overwhelming evidence of such assault.</p>

<p>1. A sheriff’s deed, though unaccompanied by the judgment or execution, is good color of title as a starting point for the statute of limitations to run, if possession be taken under it.</p> <p>2. A quit claim deed is good as color of title, and with possession may ripen into a perfect title. The fact that it is a quit claim deed does not of itself negative the presumption of good faith in one who holds under it.</p> <p>3. One who relies on title by prescription and seeks to tack to his own the possession of prior holders to make out the prescription, must show that their possession was bona fide.</p> <p>4. When a person is shown to be notoriously in possession of land by occupancy, cultivation and the like, his possession is presumed to be adverse until the contrary is shown, and such possession, when , under written title, extends to the boundary of the tract described in the deed.</p> <p>5. Where one sets up a prescription with adverse possession, and the opposite party replies by alleging fraud, the proof to avail must show fraud extending to the party so pleading the prescription.</p> <p>6. The verdict was sustained by the evidence.</p>

<p>1. Trespass against an officer for wrongful levy on homestead property may be maintained by the wife or family of the debtor without making the debtor himself a party plaintiff.</p> <p>2. When such action is brought by the wife and children of the debt- or, an amendment making him a party plaintiff, either individually or as a firochein ami, should not be allowed. Such an amendment would introduce a new and distinct party, in a case not provided for by law.</p>

<p>Jurisdiction. Verdict. Contracts. Damages. Evidence. Before Judge FLEMING. Dougherty Superior Court. April Term, 1881.</p> <p>Reported in the decision.</p>

<p>Warranty. Contracts. Damages. Before Judge Snead. Richmond Superior Court.- October Term, 1881.</p> <p>Reported in the decison.</p>

<p>There must be spme distinct assignment of error in a bill of exceptions before it can be considered by this court. If the language be so obscure or confused that no distinct assignment of error appears, the writ of error will be dismissed.</p>

<p>Criminal Law. Practice in Superior Court. Jury. Intent. Before Judge Harris. Douglas Superior Court. July Term, 1881.</p> <p>Reported in the decision.</p>

<p>While a chancellor sitting at chambers, on full notice to all parties, may order a sale of trust property, he has no power to grant authority to a trustee to mortgage a trust estate, and a mortgage so given will not bind the cestuis que trust.</p> <p>(a.) We do not decide that a court of chancery in term time might not grant authority to encumber a trust estate.</p>

<p>Husband and Wife. Parent and Child. Habeas Corpus. Before Judge Snead. Richmond Superior Court. October Term, 1881.</p> <p>Reported in the decision.</p>

<p>1. The charge of the court should be applicable to the facts developed by the testimony.</p> <p>2. .Though a shipper of live-stock contracted with the transporting railroad that it was not to be responsible for attention, feeding or watering of the stock, but that itshould afford the shipper reasonable facilities for those purposes, yet if the railroad carried the stock beyond the destination fixed by the bill of lading, and there detained them for several days before their return, it would not be relieved from liability for failure to care for the stock after passing the proper destination.</p> <p>3. When the Central Railroad received live, stock at Atlanta to be transported to Americus over its road and that of the Southwestern Railroad, and by a mistake on the part of the first road, they were consigned to a point beyond Americus, and were so received and carried by the connecting road, such facts would not relieve the latter from damages occurring by reason of inattention to the stock at the place to which they were actually carried.</p> <p>4; Though under the contract of shipment a railroad may have been liable only for damages arising from gross negligence in not attending to live stock, yet where it carried the stock beyond the agreed destination, and there kept them for a time, its liability as to such time was not limited to the results of gross negligence.</p>

<p>Garnishments. Justice Courts. Before Judge HlLLYER. Fulton Superior Court. October Term, 1881.</p> <p>Reported in the decision..</p>

<p>1. The verdict iii this case is supported by the evidence; and the charge of the court is in accordance with law.</p> <p>2. There was no sufficient evidence in this case to show an agreement to fight between the defendant and the person alleged to have been assaulted ; and therefore a refusal to charge on that point was right.</p> <p>3. Where a defendant in a criminal case voluntarily exhibited a scar on his head to sustain his defense, there was no error in requiring him to allow it afterwards to be examined by a physician who was put on the stand in rebuttal by counsel for the state.</p>

<p>1. Where suit was brought on a contract, and the evidence for the plaintiff showed that a novation had been made, a new contract substituted for the original one and a new party introduced, a non-suit was properly awarded.</p> <p>2. A recovery could not be had by amending the declaration so as to include the new contract, and relying thereon.</p> <p>3. When the unsuccessful party in the court below brings the case to this court, and the successful party files a cross bill of exceptions, complaining of rulings adverse to ¡him, if a reversal of, the judgment of the court below is ordered, the questions made in the cross bill will be decided ; if the judgment below is affirmed, adecision thereon is unnecessary.''</p>

<p>Where the movant in a motion for new .trial departs from the strict law, and enters into a consent order to file a brief of evidence within thirty days and to have the motion heard at a specified time in vacation, time is of the' essence of the contract. To file a brief neither agreed upon nor approved is not a compliance witn the order ; and upon the call of such motion for hearing, it will be dismissed on motion. 49 Rule of Court; Pease vs. Pease, September Term, 1881.</p>

<p>A municipal corporation may bind itself by, and cannot abrogate, any contract which it has the right to make under its charter, but one council cannot, by ordinance, bind itself and its successors to a given line of policy, or prevent free legislation by them in matters of municipal government. Therefore, an ordinance that no license to retail liquor should be granted for less than $500.00 per annum until the expiration of those for which that sum - was paid, was void.</p> <p>(a.) One who paid $500.00 for a license was entitled to exercise the rights and privileges conferred thereby; but upon the price of a license being lowered before he had made actual use of the one so issued, he could not repudiate it and recover the amount paid for it. 64 Ga., 199; 6 Wheat., 593.</p>

<p>1. To constitute one a bona fide purchaser for value and without notice, so as to hold a title obtained by his grantor by fraud, he must not oniy have had no notice, but must also have paid the purchase money.</p> <p>(a.) To raise the question of protecting him to the extent of a portion .of the purchase money which he has paid before notice, there must be appropriate pleadings.</p> <p>2. A deed obtained by fraud and misrepresentation conveys no valid title to the grantee; and a deed from such grantee to a purchaser with notice, whether the purchase money be paid or not, gives such purchaser no title upon which he can recover the possession of the land from the original grantor.</p> <p>3. The verdict is supported by the evidence.</p>

<p>Where an indictment charged the commission of an assault with intent to commit murder by using a weapon likely to produce death, the proof must show that such was the character of the weapon. This may be done by producing the instrument itself, or showing the effect of it, or other satisfactory evidence, but must be done in some way. Code, §4359; 57 Ga., 107; 59 Ib., 638; 32 Ib., 672; 50 Ib., 591.</p>

<p>1. The verdict is supported by the evidence.</p> <p>2. In fixing the amount of damages under a suit for destroying property, interest is not recoverable eo nomine, but the jury may consider the length of time damages have been withheld, the character of the tort, the conduct of the defendant, and all the circumstances of the transaction, and may, in their discretion, increase the amount of the damages allowed accordingly. 66 Ga., 499; 6 Am. Dec., 196; cit. and notes; 1 Am. Lead. Cas., 511, and notes.</p>

<p>The identification by a witness of a person or thing is necessarily a matter of judgment or opinion, and when accompanied with the facts on which it is founded, it is always admissible. 10 Ga., 529; 17 Ib., 134; 59 Ib., 483; Best on Ev., vol. 2, sec. 517, (2); 1 Greenleaf Ev., sec. 440; 13 Jur. R., 542.</p>

<p>x. The title to personalty cannot be determined on the trial of a possessory warrant therefor. 62 Ga., 412.</p> <p>2. If the judgment of the court below be right, it will be affirmed, though a wrong reason may have been assigned therefor.</p>

<p>1. An affidavit by a landlord that his tenant is “justly indebted” to him a specified amount'of rent, is equivalent to a statement that the rent is due.</p>

<p>1. Where criminal cases were transferred from the superior court to the city court of Hall county in accordance with law, and a fund was raised therefrom in the city court, the officers of the superior court had no further claim thereon than to have such costs as had accrued in their favor in those cases prior to the removal paid. They could not have old insolvent costs paid therefrom. (See acts of 1S80-81, p. 558.)</p> <p>2. To a fund raised from criminal cases transferred from the superior court to the city court of Hall county the officers of the former court had no valid claim beyond the costs incurred in those cases prior to their transfer. Nor could the superior court allow a further claim on the part of its officers by order.</p>

<p>(a.) Could one who propounds a will at the instance or for the benefit of another recover from the latter by assumpsit the costs which he had incurred by failing to establish the will ? Quaere.</p>

<p>(al) The evidence in this case showed that a defendant in fi.fa., who was about to obtain an exemption in certain property levied on, desired to give the constable making the levy a forthcoming bond . for the property, which the latter agreed to accept; a scrivener present volunteered to draw the bond, and did so, but made it a bond conditioned to pay the fi.fa. Neither the defendant nor the officer read the bond before it was signed, or knew of its contents :</p>

<p>2. Where a man hailed a woman walking along a pathway, and holding something in his hand and saying he had plenty of money, told her to go into a gully, and on her retreating, drew a pistol, and advancing upon her, ordered her to turn back, and she escaped by flight, a verdict of assault with intent to rape, approved by the presiding judge, will-not be set aside as unsupported by evidence.</p> <p>(a.) The fact of proximity of a house and public road to the scene of the transaction may have rendered the effort fruitless, but did not render it guiltless.</p>

<p>A declaration sought to recover damages from a municipal corporation. It alleged the following facts : Plaintiff was riding along one of the streets of the city when his horse became frightened and ran away. Plaintiff succeeded in stopping him, when he began to kick against the dash-board, and plaintiff sprang from the buggy. The street for some distance in that vicinity was in very bad condition, and had been so for a considerable time, and the city had notice of the fact; there were deep and ragged gullies washed in the street and in the bottom of one of them was a deep and narrow rut; into this plaintiff’s foot slipped, and being unable to keep his equipoise, he fell, his leg was broken and he was badly injured. The injury would not have resulted but for the gully which defendant’s negligence allowed to remain in its street, and was exclusively and wholly caused thereby :</p>

Damages. Negligence. Master and Servant. Husband and Wife. Before Judge Willis. Muscogee Superior Court. May Term, 1881. Charlotte McDonald sued the Eagle-and Phenix Manufacturing Company to recover damages-for the homicide of her husband. On demurrer the court dismissed the case, and plaintiff excepted.