Volume 69 — Georgia Reports

<p>Criminal Law. Evidence. Practice in Superior Court. Jurors.’ Continuance. Husband and Wife. Practice in Supreme Court. Impeachment of Witnesses. Before Judge Fleming. Decatur Superior Court. ■ August Special Term, 1881.</p> <p>An indictment was found against Robert H. Durham, John W. Williams and Walter Williams. The first count charged all three with murder in the first degree; the second count charged John and Walter Williams with murder in the second degree, and the third count charged them with being accessories before the fact. John Williams being placed upon trial, moved for a continuance on the ground of popular excitement; because defendant and his counsel had not time or opportunity for the preparation of his defence, he having been committed to jail on July 29, 1881, and the court having assembled on August 22 following; because, if given time, he could impeach certain matérial witnesses for the state. [Here he stated what the. absent witnesses would testify.] After the showing and counter showing, the motion to continue was overruled.</p> <p>The defendant plead in abatement that some of the grand jurors who found the bill had formed and expressed an opinion adverse to defendant; because the court excused one of the regular grand jurors without legal excuse or authority, and supplied his place with a talesman; because the bill of indictment was signed by Maston O’Neal, as solicitor-general pro tem., he being at the same time the ordinary of Decatur county and being also employed for the prosecution ; and because the-court has never organized according to law, “ nor are there any lawful jurors, -either grand or petit, in this, to-wit: that no precept has been issued or ordered as the law directs for the summoning of jurors at the special term, nor has any juror, either grand or petit,-been summoned or sworn under a precept as required by law.” On demurrer the plea was stricken.</p> <p>Defendant challenged the array of jurors on the same ground as that set out in the plea. On demurrer the challenge was overruled.</p> <p>Defendant objected to two of the jurors: to the first, because his name was Jesse N. Maxwell, while it was put into the jury box Jesse M. Maxwell. It was shown that the juror summoned was the man intended, and that there was no such person'as Jesse M. Maxwell in the district. The objection to the other juror was that he had formed and expressed an opinion. The juror swore that he said that if the man was guilty, of course he should be punished, but that he did not say that defendant was guilty. The objections to the jurors were overruled.</p> <p>Defendant pleaded not guilty. It is unnecessary to set out the evidence in detail. It showed, in brief, the following facts : Mrs. Brockett was murdered; she was killed by some one Standing outside of her door and firing upon her with a shot gun. Tracks, as of a man in his stoclcingfeet, were found leading away from the door, and some of the witnesses testified to finding two tracks at a little distance from the house, leading away in the same direction. A gun was found at the residence of Walter Williams bearing evidences of having been recently discharged. A night or two after the killing, and while search was being made for the murderer, John Williams, with his family, spent the night at the house of one Bailey, with whom he was not on friendly terms. He had a pistol and a bottle of laudanum, and while there said that “ the way things are working they are going to throw every thing” on him and his brother. While in jail, he and Walter Williams sought to suborn witnesses to testify in their favor. At some time prior to the killing (the evidence does not certainly fix the time) a very hostile feeling had arisen between the deceased and the Williamses. The deceased had killed a beef, which appears to have belonged to one of them, and a case arose in regard to it. Some money was stolen from one Donaldson, and the deceased, on her committing trial for killing the beef, openly charged that they were implicated in the theft, and that her life had been threatened ; and it also appears that they had made certain admissions in regard to it. They sought to have her removed to Texas, but failed to do so. In addition to this, Robert Durham, the principal, turned state’s evidence, and testified that he did the actual shooting, being induced to do it by the Williamses under promises of reward ; that the gun was furnished by Walter Williams; that John Williams accompanied him to the scene of the crime, and waited for him at a little distance from the house ; that some distance therefrom they took off their, shoes and proceeded in their stocking feet; that after the shooting they both went off together, put on their shoes, and went to Durham’s house where they remained all night; that he had been paid only a small amount, as they were afraid he would be discovered if he had too much money. Mrs. Durham, the wife of this witness, testified that Williams was at their house on the night of the killing. He said that he had done the worst thing that could be done on earth; that he had killed the widow Brockett; he said that deceased was praying “ Lord have mercy on her and on every body in the world.” It was also sworn, by another witness, that when the deceased was found in a dying condition, immediately after the shooting, she was making use of the language stated above. Mrs. Durham further stated that she had testified differently during the coroner’s inquest, as she thought her life was at stake.</p> <p>The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved for a new trial, on the following grounds:</p> <p>(1.) Because the court erred in permitting the state to make any counter-showing whatever to the defendant’s motion for a continuance, it having been in writing under oath, and defendant having objected to such counter-showing by the state, which objection the court overruled.</p> <p>(2.) Because the court erred in permitting the state, over the objection of defendant’s counsel, on counter-showing to the motion for continuance, to attempt to disprove the allegations of the showing for continuance, as to what certain witnesses would testify. [The defendant’s motion to continue rested in part on the absence of witnesses, and he stated what they would testify. The state was allowed to rebut this by showing that they would not so testify.]</p> <p>(3:) Because the court erred in overruling defendant’s motion for a continuance.</p> <p>(4.) Because the court erred in overruling defendant’s special plea in abatement.</p> <p>(5.) Because the court-erred in sustaining the demurrer to defendant’s challenge to the array of the panel of jurors put upon him.</p> <p>(6.) Because the court erred in permitting the state, over the objections of defendant, to .put him on trial before the case of Robt. Durham, the principal, as charged, was disposed of, this defendant being charged in one count as a principal in the first degree, and in the second count as principal in the second degree, and in a third count as an accessory before the fact.</p> <p>(7.) Because the court erred in refusing, on motion of defendant, to require the state to elect upon which count or counts they would proceed against him, and in putting defendant on trial on all the counts in the indictment.</p> <p>(8.) Because the court erred in holding, as a trior and judge, that J. O. Horthorn was a competent and impartial juror. [Objection was made to the juror on the ground that he had formed and expressed an opinion. He stated that he had said if the parties were guilty they should be punished, but denied having expressed an opinion as to their guilt.]</p> <p>(9.) Because the court erred in refusing to allow defendant’s counsel to question the witnesses for the state, on their cross-examination as to the counter-showing of the state to defendant’s motion for a continuance, on any subject or matter outside of the facts stated in their affidavits. Defendant’s counsel proposing to show by W. W. Russell and all the others of said witnesses, that there was great public excitement, and that each of defendant’s grounds for continuance were good in fact, the court expressly refusing to allow defendant to ask them any questions as to said showing unless it were on some point contained in such witness’ affidavit made in support of said counter-showing.</p> <p>(10.) Because the court erred in putting J. N. Maxwell on defendant as a juror over his objection, when it appeared upon inspection of the record that the name of J. N. Maxwell was not in the jury-box, but that Jesse M. Maxwell was, and in permitting testimony that J esse N. Maxwell was intended by the commissioners when they put in the name of J. M. Maxwell. [It appeared that the juror was in fact Jesse N. Maxwell, and that there was no Jesse M.]</p> <p>(11.) Because the court erred in admitting testimony of a witness, Sallie Lambert, over objection of defendant, that she knew defendant stole John Donaldson’s money, and giving the particulars thereof. Defendant objected on the ground that the testimony did not relate to the case on trial, but to another case, and was liable to prejudice the minds of the jury against him, and was irrelevant and otherwise illegal, and that it was a matter to which the defendant was no party; and that no foundation was laid by first showing by proper evidence that there was such a case. [There was testimony that money had been stolen from Donaldson, and that deceased had accused defendant and Walter Williams of the theft. On this subject Sallie Lambert testified as follows: “Defendant told me that he got the money from Mr. Donaldson, he and his brother; he told me that they had lost something there which would be of great value if found. He told me where to look for it. I found some money there in a tin box. I saw Mr. Brockett count the money; he said there was $13.50. I carried it home, and showed it to deceased. She came to town and told Jesse Brockett about it. He advised us to give it to Mr. Donaldson. We sent for Mr. Donaldson; he came; said it was his, he thought, from the smell of it. He took the money and paid me $2.00 reward. Defendant never told me all about it till after we were in the lawsuit about it. Defendant said that he and Walter took it; said they went into the room and took the money ; did not say what the money was in in the room. When they told me about the money, deceased was not present. Deceased and I were living together at that time.”]</p> <p>(12.) Because the court erred in admitting the evidence of Mrs. Bailey and her husband, John Bailey, as to the unfriendly relations between Bailey and defendant, and the objection being that it was irrelevant and prejudicial to defendant.</p> <p>(13.) Because the court erred in admitting the testimony of Mrs. Bailey as to what defendant’s wife said in his presence, and that he had a pistol at her house on Tuesday night, over objection of defendant that it was irrelevant. [No sayings of the wife are set out in the testimony of Mrs. Bailey in the record.]</p> <p>(14.) Because the court erred in admitting parol evidence as to what Mrs. Brockett stated in her preliminary or committing trial more than a week prior to the killing, as to the parties and particulars of the stealing the Donaldson money; the defendant objecting on the ground that the brief of the evidence and defendant’s statement, taken down on that trial, had not been accounted for, and that such brief was the highest evidence of what was sworn to and said in the statement on that trial; and because the evidence was irrelevant and was illegal, because it involved a different transaction and a different crime; and because legal foundation for it was not laid. [On the committing trial of deceased, for killing a beef, she charged defendant and his brother with the larceny of Donaldson’s money.]</p> <p>(15.), (16.). Because the court erred in admitting Mrs. Durham, the wife of the principal actor and accomplice, as a witness to testify against this defendant, he objecting on the ground that she was neither competent nor compellable to testify against her husband or for him, either directly or indirectly in a criminal case, or for or against her husband’s accomplice in the same case in which her husband was charged, and more especially while the case against her husband is undisposed of, either by plea, verdict or judgment.</p> <p>(17.) Because the court erred in instructing Mrs. Durham, after she was admitted by the court as a competent witness for all purposes, and after she had testified on direct examination by the state, that she need answer no questions that tended to criminate her husband ; and especially erred in instructing her that she need not answer the questions put by the defendant on cross-examination, as follows: “Was your testimony given on the coroner's inquest exhonorating your husband true or false ?”</p> <p>(18.) Because the court erred in admitting,over the objection of the defendant, the testimony of J. C. Donaldson as to when and how his father lost money, and giving the particulars thereof, and because the court erred in ruling it out for irrelevancy.</p> <p>(19.) Because the court erred in refusing, upon request of counsel, to go into proof by witness on the stand that John Williams did not take the Donaldson money.</p> <p>(20.) Because the court erred in refusing to charge, as requested by defendant’s counsel in writing, as set out in said written requests hereto attached, exhibit “A,” being eight pages marked on said pages as refused. Defendant alleges that each and every request therein was proper and legal, and should have been given as requested, and contends that the court did not give them in charge, but misapprehended and misunderstood their full force and effect when he entered thereon “refused,” the ideas being embraced in charge. Defendant further contending that it is not sufficient to merely embrace the ideas of a written request, but that the whole request, if legal, should be given; which requests here referred to are attached and referred to as part of this motion; and to fully illustrate this ground defendant here attaches also a written charge of the court, and prays a full comparison of the refused request with the charge as given, which original charge is also attached as a part of this motion. [It is unnecessary to set out the eight pages of requests or the general charge.]</p> <p>(21.) Because the court .especially erred in refusing to charge as follows: “ If you believe that Mrs. Durham has testified to a certain state of facts upon a former investigation of this matter, and .to the contrary on this trial, knowingly and wilfully, her testimony should be rejected entirely, unless it be corroborated by the facts and circumstances of the case, or other credible evidence ; and such corroboration roust be as to material facts, for corroboration as to immaterial facts is not sufficient.</p> <p>(22.) Because the court erred in refusing to charge without qualification as follows: “ That a person has been unlawfully killed will not of itself corroborate the testimony of the party who did the killing and has turned state’s evidence, that another stood by aiding and abetting him.” And the court erred in qualifying said charge, as follows : “But you are authorized to look to the evidence to see if there be any corroboration ; and if there be any, you may believe it or not, according as the. corroboration should satisfy your minds.”</p> <p>(23.) Because the court erred in charging that the jury could, if the evidence justified, find this defendant guilty of being an accessory before the fact on this trial.</p> <p>(24.) Because the court charged that if. on the investigation before the coroner’s jury Mrs. Durham testified knowingly, falsely and wilfully as to material facts connected with the same killing in a manner different from what she has here sworn, the jury should not believe her unless corroborated by other witnesses or circumstances; but that if she testified falsely under duress or through fear for her life, the previous oath would not be wilful and would not discredit her testimony; also, that if she was an accessory after the fact, her testimony would require corroboration, but if she concealed the crime through fear for her own life, this would not .discredit her testimony.</p> <p>(25.) Because the court erred, in refusing to charge as follows: “ Presence and participation in the act of killing ahúman being is not evidence of consent and concurrence in the perpetration of the act by a defendant charged as aiding and abetting in the killing, unless he had a felonious design or participated in the felonious design of the person killing.”</p> <p>(26.) Because the court erred in charging as follows: “ I charge you that if you find from the testimony that the party named in the bill of indictment was unlawfully killed, and if you find from the evidence that the defendant on trial confessed that he did the killing, I charge you that such confession, corroborated by such proof of unlawful killing, would be sufficient to warrant you in finding a verdict of guilty.” The defendant contends that such charge is contrary to the law, not warranted by lawful evidence, and withdrew from the jury the power and duty of deciding on the weight of evidence and the sufficiency of the corroborating evidence.</p> <p>(27.) Because the court erred in charging as follows:- “ If you find from the testimony that just before or at the time of the killing deceased was saying anything, and you find that the prisoner confessed that he heard such sayings of the deceased at the time of the killing, I charge you that such confession of the prisoner of having heard what the deceased was saying is a corroborating circumstance of the truth of the confession; and I charge you that if there was a confession of guilt, then such a circumstance to which I have alluded, to-wit, sayings of the deceased at the time of the killing, confessed to have been heard by the defendant, would be sufficient corroboration of the confession of having killed the deceased to justify at your hands a verdict of guilty.” Defendant contends that this charge was contrary to law, and Restricted the power and duty of the jury in judging of the weight of evidence and the sufficiency of the corroboration, and is not justified by the lawful evidence.</p> <p>(28.) Because the . court erred in charging as follows: “If you believe from the testimony that any witness or witnesses have been impeached by contradictory statements, contradictory testimony or otherwise, it is within your power to disregard such contradictions or impeachments and believe such witness any way.”</p> <p>(29,) (30.) Because the verdict was contrary to law and evidence.</p> <p>The motion was overruled, and defendant excepted.</p>

Criminal Law. Evidence. Practice.in Superior Court. Witness. Before Judge Simmons. Bibb Superior Court. October Term, 1881. C. H. Franklin was indicted for the murder of Mit Bryant. On the trial, the evidence for the state showed, in brief, the following facts.: Franklin was at work on the place of one Freeman and digging a ditch in the garden. On Saturday, July 30th, 1881, he went to Macon.

<p>1. While a plaintiff is entitled to recover in a suit on notes against defendants who make no defence, yet where there was a suit against several defendants on promissory notes, one of whom only defended, a verdict was rendered for the defendants, and only the resisting defendant was brought before this court by writ of error, the decision must rest on the rights of the parties here, and a reversal cannot be had on account of failure to recover against others.</p> <p>2. While generally the beginning of a suit is the filing of the declara-? tion therein, and amendments properly made relate back to the date of filing, yet this is applicable to defendants sued; and where a new and distinct party was added by ex parte amendment, the statute of limitations ran as to the cause of action against him up to the time of service on him.</p> <p>(«.) For a suit against one as executor of an estate to be amended by striking the name of this defendant and inserting the name of another as administrator of the same estate, would seem to be adding a new party, and improper.</p> <p>3. Though a new party should not be added to a common law action by amendment, yet where such a party has been made and service has been perfected, a motion to set aside the order allowing the amendment comes too late at the second term.</p> <p>(a.) Whether the amendment was legal or not, the cause of action was barred as to the party made, before service on him.</p> <p>4. In a suit against an administrator on notes of his intestate, an heir of the decedent is not an incompetent witness although the holder of the notes may be dead and the suit may be brought by his legal representatives, especially where he had assigned his interest.</p>

Amendment. Processioning. Before Judge LaWSON. Greene Superior Court. March Term, 1882. The processioners of the 145th district G. M., of Greene county, together with the county surveyor, were called in to settle a disputed line between Watson on one side and Bishop and Thompson on the other, upon the application of Watson. The disputed line only was laid off, with its course and distance.

Criminal Law. Before Judge TOMPKINS. Chatham Superior Court. June Term, 1882. Hussey was presented by the grand jury for keeping open a tippling house on Sunday.

Homestead. Ordinary. Before H. D. D. TWXGGS, Esq., Judge pro hac vice. Washington Superior Court., March Term, 1882. A ft. fa. in favor of Groover, Stubbs & Company was levied on certain realty in the town of'Sandersville as the property of the estate of William G. Brown, deceased.

Liens. Mortgages. Before Judge Stewart. Newton Superior Court. March Term, 1882. Langston & Crane foreclosed a chattel mortgage against Elliott on a stock of goods in Newton county. The property was sold and the fund brought into court for distribution. Richardson and others foreclosed laborers liens against Elliott and claimed the fund.

Criminal Law. Indictment. New-Trial. Jurors. Before Judge ERWIN. Gwinnett Superior Court. March Term, 1882. Elbert M. Stevenson was indicted for the murder of Selina C. Stevenson. On the trial the evidence for the state was, in brief, as follows: The deceased was shot with a gun. Before her death, defendant was arrested for the crime, and on the committing trial she testified substantially as follows: She was forty-five or forty-six years of age, and defendant was younger.

Dower. Husband and Wife. Before W. S. WALLACE, Esq., Judge pro hac vice. Upson Superior Court. May Term, 1881. Mrs. Trice applied for dower to beset apart out of the. estate of her deceased husband. Butts, the administrator, filed objections to the setting apart of dower, one ground of objection being that the husband had made provision for the applicant by deed in lieu of dower, and that the same was so accepted by her.

<p>1. The verdict in this case is contrary to law and evidence.</p> <p>(a.) S. sold land to V., and paid all the purchase money except $74.00, but had only a bond for title. Some three years afterwards V. sold to D.; they went to S. to pay him the unpaid balance due on the land, and obtain from him a deed made directly to D. A deed was prepared and presented to him conveying one hundred and thirteen acres. This he refused to sign because the words “ more or less” were omitted. He stated that these words were customary in all deeds, that he never made a deed without them ; that there might be more or less than one hundred and thirteen acres, he did not know how many there were — he was not an expert, but had a plat from the county surveyor, who was ; he thought that there was that number of acres in the tract, though he would not make a deed for that many; he never saw the land, never was on it, and had no means of knowing how much there was except from the plat. Whereupon the words “ more or less” were inserted in the deed :</p> <p>Held, that in an action for deceit brought by the second vendee, who was the grantee in the deed, a verdict for the plaintiff was contrary to law and evidence.</p> <p>2. There being no evidence on the subject of counsel fees, or to show that the defendant had been stubbornly litigious, or had caused the plaintiff unnecessary trouble and expense, a charge that the jury might allow damages on those grounds was error.</p> <p>3. Evidence of the wilful misrepresentation of a material fact, or knowledge of a falsehood stated, or the fraudulent or reckless representation of a fact as true, though not known to be false, yet intended to deceive, constitutes the-essential element of an action of deceit. Such was the charge of the court, and there being no evidence showing any of these facts, the verdict was contrary to the charge.</p> <p>4. Under the facts stated in the first head-note, in an action for deceit in misrepresenting the amount of the land, the plat on which both parties acted in inserting the words “more or less” in the deed was admissible; especially so after parol evidence had been allowed to show what the representations were.</p>

Wills. Evidence. Practice in Superior Court. Practice in Supreme Court. Before Judge Willis. Webster Superior Court. April Term, 1882. J. J. Dixon and G. W. Warren, as executors of J. H. Carter, deceased, propounded his will for probate in solemn form. After providing for the payment of his debts, the will contained the following provisions: Item 2 directed certain described land to be sold-by his executors.

Practice in Superior Court. Evidence. New Trial. Bankruptcy. Charge of Court. Notice. Before Judge LAWSON. Jasper Superior Court. October Term, 1881. A fi. fa. in favor of Roberts was levied, on behalf of Urquhart, as transferee, on certain land, and a claim was interposed by Leverett. On the trial, the evidence showed, in brief, the following facts : The judgment was rendered in 1861.

Equity. Practice in Superior Court. Arbitration and Award. Before Judge Tompkins. ; Chatham Superior Court. June Term, 1882. George P.' Evans, as administrator of the estate of Isabella Evans, filed his bill against Lo.uisa C. Sheldon et al., aud the said Louisa C. having died pending the suit, her. husband, J. R. Sheldon, individually and as guardian for his minor child, Emma P. Sheldon, was made a-party defendant.

<p>[Speer, Justice, being disqualified, did not preside in this case.]</p> <p>1. The finding of the jury was supported by the evidence; and there was no error in the questions submitted by the court to the jury, nor in the charge giving explanations of each, and the law thereon.</p> <p>2. Where one owning the fee in certain land gives by parol a license to another to erect a part of a mill dam on such land and to overflow a part thereof, having in view the benefiting of the licenser’s estate, and at the expense of large sums of money the licensee executes the contract and builds the dam and a mill (useless without the dam), and does thereby benefit the licenser’s estate, equity will not permit the latter to revoke the license at will and without remuneration.</p> <p>(a.) That the licenser is a railroad company will not alter the principle unless the purpose of the franchise — the safe running of the road for the benefit of the public — be impaired by such license. Should it be found necessary for such purposes, even after injunction restraining interference with the license, the license could be annulled upon such terms as equity would impose, and such is the decree in this case.</p> <p>ip.) One who purchased from the licensee upon the assurance of- the general superintendent of the road that he would not be molested in respect to the mill, dam, or overflow, will be protected in the same manner as his vendor.</p> <p>(r.) Where the general superintendent, the chief executive officer of a railroad, whose duty it was to manage the business of the road, the construction of its culverts, etc., granted a license to an adjoining landowner to erect a mill-dam partly on the land of the road, and overflowing a part of such land, and the same was done at large expense by the licensee, and was beneficial to the road, there having been no objection from any source, the company is bound. Especially so where the mill and dam were in plain view of the railroad for years, and no objection was made to them by the directors, and where the superintendent was himself a director.</p> <p>3. That the dam was washed away by a flood would not destroy the right of the licensee or one who purchased under him for value and on the assurance of the superintendent that he would not be molested, where it appeared that there was no fault or laches on his part causing delay in rebuilding.</p>

<p>Specific performance will be decreed in cases of contract founded upon a valuable consideration, whenever it’would be a fraud upon the party seeking it to refuse it, but a court of equity will not decree specific performance of a voluntary agreement or gratuitous promise, except where possession of land has been given under such agreement upon a meritorious consideration, and valuable improvements have been made upon the faith thereof.</p> <p>(a.) A man and wife, leaving a region infested with yellow fever, went to the house of his brother-in-law. While there, the husband remarked to the wife of his entertainer that he (the speaker) might be taken sick, and if so, he desired to remain at the house of his host, and that he was willing to pay the latter well. When this was mentioned to the host, he replied that his brother-in-law could remain there if he was sick, that those who did not want to come could stay out, and those who did not want to stay could go. No -other conversation took place. The visitor and his'wife were both ■attacked by yellow fever, and the latter died. After the convalescence of the former, he expressed himself as extremely grateful to his host and hostess, who had nursed him and saved his life. He stated that they had done much for him, and that he would do something for them, that he would make a will and leave them all his property. Subsequently he executed an instrument bequeathing his property to them, and delivered the paper to them. It was not a valid will:</p> <p>Held, that under these facts no such contract was shown as would authorize a decree for specific performance against his administrator after his death, requiring the delivery of the estate to the holders of this instrument. A contract upon which specific performance is sought must be certain, definite and clear, and so precise in its terms that neither party can reasonably misunderstand it.</p> <p>(b.) The allegations of the bill in regard to the value of services performed, the amount of expenses incurred, or the losses sustained by complainants in nursing the intestate, are too vague and uncertain to form a basis for recovery. Nor is the evidence on those points sufficient to warrant a verdict for the entire estate.</p>

Attorney and Client. Claim. Fees. Debtor and Creditor. Fraud. Before Judge Snead. Richmond Superior Court. April Adjourned Term, 1882. In 1878 and 1879 four attachments were levied upon a house and lot in Augusta, as the property of Jno. M. Turner, and a claim was interposed by his wife as trustee for her two daughters, under a voluntary deed made by Turner in February, 1876.

Master and Servant. Damages. Negligence. Before Judge Clark. City Court of Atlanta. June Term, 1881. Hester Speer, by her mother as next friend, brought, suit against the-Atlanta Cotton Factory Company to recover'for an injury received by her by falling through an opening prepared by the company for an elevator. On the trial, the evidence showed, in brief, the following facts: The factory was under the general management of a superintendent named Harris.

Corporations. Contracts. Estoppel. Constitutional Law. Debtor and Creditor. Before Judge Fain. Bar-tow Superior Court. November Adjourned Term, 1881. The Planters’ etc., Bank brought complaint against Padgett et al. as partners using the firm name and style of “The Cartersv-ille Car Factory and Building Association,’’ on four promissory notes.

Officers. Municipal Corporations. Before Judge Crisp. Sumter Superior Court. April Adjourned Term, 1882. Oliver brought suit against the mayor, etc., of Americus to recover a balance of one year’s salary as policeman alleged to be due him.

Money Rule. Evidence. Parties. Practice in Superior Court. Before Judge UNDERWOOD. Gordon Superior Court. August Adjourned Term, 1881. Held: by assignment, fi. fas. based on judgments rendered April 7th, 1862; that E. E. Field held a mortgage on the land sold, dated February 2d, 1867, and that he held, by assignment, a mortgage dated February 8th, 1867.

Illegality. Judgments. Justice Courts. Constitutional Law. Before Judge SNEAD. Richmond County. At Chambers. August 1, 1882. Held: one of them being outside of the city of Augusta. That portion of the agreement which took the place of the record having been read, and it having been admitted, that defendant was personally served, plaintiff’s counsel objected to an y aliunde testimony to show want of jurisdiction.

<p>1. Where an attorney at law, prior to 1868, received and receipted for a promissory note placed in his hands for collection, though he collected and failed to pay over the amount thereof subsequently to that time, the contract began from the date of the receipt, and in a contest between the claim of the client and the homestead right of the attorney’s wife and children, the former took precedence. Crawford, J., concurred dubitante.</p> <p>2. The homestead in this case was properly granted.</p> <p>(a.) The ordinary may order money due the head of a family, to be paid to him, to be by him invested according to law, and when it has been invested and a schedule of the property has been attached, he may then pass a final order of exemption. This case is distinguished from 65 Ga., 546 ; Johnston vs. Dobbs (this term.)</p>

Certiorari. Levy and Sale. Justice Courts. Before W. W. MERRELL, Esq., Judge pro hac vice. Carroll Superior Court. April Term, 1882. A fi. fa. in favor of Benson & Coleman, against William Benson was levied on a horse, which was claimed by Dyer. On the trial, plaintiffs in fi.fa. introduced their execution and the entry of levy thereon, and proved that the horse had been in possession of the defendant in fi. fa. subsequently to the rendition of the judgment.

Tax. Liens. Title. Augusta. Before Judge Snead. Richmond County. At Chambers*. February 18, 1882. On September 5, 1866, A. D. Picquet gave to S. K. Taliaferro a mortgage (which was duly recorded) on the lot in dispute to secure a note of $2,500, due twenty years after date, with interest at seven per cent., payable annually, and upon default in payment of interest the mortgagee was to have the right to enter upon the premises, and sell in three weeks.

<p>Railroads. Damages. Negligence. Actions. Charge of Court. Evidence. Savannah. Before Judge Harden. City Court of Savannah. February Term, 1882.</p> <p>Reported in the decision.</p>

<p>Inns. Damages. Negligence. Charge of Court. Before Judge HARDEN. City Court of Savannah. November Term, 1881.</p> <p>Reported in the decision,</p>

<p>Injunction. Constitutional Law. Departments’ of Government. Before Judge TOMPKINS. Chatham County. At Chambers. November 9, 1882.</p> <p>Reported in the decision.</p>

Equity. Practice in Superior Court. Easements. Verdict. Before Judge TOMPKINS. Chatham Superior Court. December Term, 1881. Turner owned a lot in the city of Savannah, for many years, and built a house on one-half of it. Upon his death, his widow, Mrs. Turner, became his executrix, and as such sold the property. The improved half-lot was purchased by a vendor under whom Thompson bought; the 'other half-lot by Mrs. Turner, with the assent of all the legatees.

Criminal Law. Misnomer. Minutes. Practice in Superior Court. Jurors. Constitutional Law. Practice in Supreme Court. Before Judge SlMMONS. Bibb Superior Court. October Term, 1881. The following, in connection with the decision, sufficiently reports this case: “ Doc.” .Wilson was indicted for the murder of James Tinley.

<p>1. A contract between the commissioners of pilotage of a port and the licensed pilots thereof, whereby the former agreed to limit the number of pilots for that port for the period of three years to ten, that being the number already licensed, was illegal and void. It is the duty of commissioners of pilotage to supply the port with a sufficient number of pilots, and they cannot contract to restrict the number, without regard to what might be necessary for the business of the port.</p> <p>2. Each licensed pilot has a right to hold his license and receive his fees for services which he may render; but he has no right, either alone or in company with others, to claim the entire business of the port, and to prevent the issuing of license to another pilot, in the discretion of the commissioners of pilotage.</p>

Pleadings. Damages. Malicious Arrest. False Imprisonment. Justification. Non-Suit. Evidence. Before Judge Harden. City Court of Savannah. May Term, 1.882. Williams brought an action against the Ocean Steamship Company of Savannah. His declaration contained two counts.

<p>1. Where the payees, who were also endorsers, of an unconditional negotiable draft, at the time of its acceptance gave to the acceptors a release of all responsibility thereon, written on a separate paper, if the draft fell into the hands of an innocent holder for vajue before due, and the acceptors paid it to him, in a subsequent suit by the same payees against the same acceptors on another acceptance, the amount paid on the first draft could be set off against the action, no funds of the drawers being in hand.</p> <p>(a.) If the first draft yras presented by the payees themselves and paid at their instance and request, an action would lie for money so paid, and it could be set off against an action on the other draft.</p> <p>2. Whilst the court in his charge should adhere as strictly as possible to the testimony as given, yet where the legal effect of what he does say is exactly the same as if he had employed the language of the 1 testimony, it is. not such error as works an injury and requires a new trial.</p>

<p>1. Where one railroad in this state has leased and is operating another, in a suit against the lessee, an entry of service by the sheriff by serving personally its depot agent was sufficient. It was not necessary for such entry to show the deposit and mailing of a letter to the president of the company.</p> <p>2. A declaration in a suit against a railroad alleged as follows : Plaintiff was a passenger on defendant's train, and had paid his fare to a given point, where defendant’s agents agreed to put him safely off, but after having promised to slack up, they negligently directed plaintiff to get off while the train was in motion; seeing that he was about to be carried beyond his destination, and thinking he might safely jump, under promise of defendant’s agent to slack up and his notice to get off, plaintiff stepped from the train ; finding that he would be hurled against the track if he let loose, he retained his hold on the car, trusting that the speed would be lessened ; but, though defendant’s agent saw plaintiff’s situation, the speed of the train was negligently increased, causing plaintiff to be dragged, etc.:</p> <p>Held, that a cause of action was set out, and a demurrer to the declaration was properly overruled.</p> <p>3. Where no special plea is found in the record, an assignment of error, based on its being stricken, cannot be considered by this court.</p> <p>4. The verdict is supported by the evidence.</p>

Criminal Law.. Charge of Court. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1882. Sim Pyles and Wyly Shropshire were indicted in Floyd superior court for burglary. The former pleaded guilty, and the latter pleaded not guilty, and was put upon his trial.

Practice in Supreme Court. At September Term, 1882. The bill of exceptions in this case recited, in brief, as follows: “The case of E. M. Jones, administrator, vs. Geo. T. Bartlett, the City Bank oí Macon, John T. Williams, and other creditors of the estate of M. Husen, deceased,” being a bill to marshal the assets of the estate, came on for trial at the May term, 1882, of Terrell superior cou'rt.

Certiorari. Fence Laws. Voters. Parties. Actions. Ordinary. Elections. Before Judge Simmons. Houston Superior Court. April Term, 1882. To the report «contained in the decision, it is only necessary to add that it nowhere appeared that defendant in error was a freeholder. It appeared that he was a justice of the peace, and one of the election managers.

<p>I. Original papers, if to be procured, are always better evidence than copies ; and the latter are allowed only from necessity or convenience.</p> <p>(a.) Afi.fa. is not an office paper which must be kept on file in the court where it originates. The original may be taken out of court and used, in evidence. It is the best evidence of the right to seize and sell in contests under sheriffs’ sale ; if lost or destroyed, a copy of it from the records may be used.</p> <p><(b.) An original fi.fa. from the circuit court of the United States will ibe recognized by the state courts without other than intrinsic proof, and is admissible in a contest arising thereunder.</p> <p>2. An affidavit of illegality may be withdrawn by the party interposing it, subject to the right of the plaintiff in fi.fa. to proceed, as in claim cases where the claims are withdrawn.</p> <p>{a.) There is no proof in this record of bankruptcy of the party filing the illegality, or whether the property in controversy was affected thereby, so as to call for a charge on that subject.</p> <p>3. One who in good faith files a claim to property levied on, and sells it during the pendency of the case, may still maintain his title to the property as it stood when claimed, and thereby protect himself and secure the rights of the purchaser under him.</p> <p>4. Whether the refusal to give a request in charge was error cannot be determined by this court where the request is not set out in the record or bill of exceptions.'</p> <p>5. Exceptions to the-rulings of the court below must specify plainly the errors alleged. To assign as error on a long charge that it fails to submit the real issue, is too general.</p> <p>(a.) If counsel think that the court has failed to submit the real issue in a case, they should by requests invoke a charge thereon.</p>

<p>New Trial. Verdict. Administrators and Executors. Before Judge Hood. Randolph Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors. Levy and Sale. Practice in Superior Court. Judgments. Principal and Endorser. Before Judge Snead. Morgan Superior Court. March Term, 1882.</p> <p>A ft. fa. in favor of “ Francis A. Banks, administrator,” against “ Wm. O. Saffold, principal, and Thos. P. Saffold, security,” was levied on certain property as belonging to Thomas P. Saffold.' He filed an affidavit of illegality on the grounds set out in the decision. The first five of these were stricken, and a trial was had on the sixth ground. It being made to appear that Banks was removed from the administration of the estate of Eubanks, and was succeeded by A. G. Foster, who died, leaving as his executor F. C. Foster, who also became administrator de bonis non of the estate of Eubanks, the court allowed F. C. Foster, administrator de bonis non, to be made a party, and ordered the case to proceed, there having been no living representative of the estate at the time the levy was made.</p> <p>The only part of the evidence material to an understanding of the points decided is as follows: In- 1866 “Francis Banks, administrator of Alfred Eubanks, deceased,” brought complaint against William O. Saffold, principal, and Thomas P. Saffold, security, on a promissory note payable by them to “ Francis A. Banks, administrator of the estate of Alfred Eubanks, deceased, or bearer.” Defendants confessed judgment, and a judgment was entered up in favor of the plaintiff against “ the defendant.” Upon this judgment the fi. fa. in controversy issued. The original papers in ■ this suit were lost, and the records of them were used in evidence.</p> <p>After verdict in favor of the plaintiff in fi.fa., and a refusal of a new trial -by the court, the defendant, T. P. Saffold, excepted.</p> <p>The other facts are stated in the decision.</p>

<p>Evidence. New Trial. Partnership. Promissory Notes. Before Judge Willis. Chattahoochee Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>Trusts. Amendment. Parties. Before Judge CRISP. Sumter Superior Court. April Term, 1882.</p> <p>Reported in the decision.</p>

<p>Where the same bill sought relief against four defendants as executors de son tort of one estate, and against two of the same parties, one as administrator de bonis non of another and distinct estate, and the other as his confederate, and prayed an accounting in regard to each estate, the bill was multifarious and demurrable.</p> <p>(a.) Courts of equity are loth to dismiss bills for multifariousness, and ordinarily this court might remand the case with leave to amend by striking one of the grounds of complaint, but under the confusion of the record in this case, we think it best to let the judgment stand.</p>

<p>New Trial. Principal and Surety. Administrators and Executors. Before Judge CRISP. Sumter Superior Court. October Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>A testator provided as to certain lands, “ that-his wife Eliza, should remain on said lands during her natural life or widowhood, and receive a support from said lands, out of the proceeds thereof, and for this purpose he put said lands under the charge of his son-in-law, Bowden.” He further charged the land with the payment of a certain debt. He also devised that, after the death of his wife^all his estate should be equally divided between his son-in-law, Bow-den, and his son, the share of the latter being given to him in trust for life with the remainder to his children. Administration was granted:</p> <p>Held, that the title to the land vested in the legal representative of the testator, to be disposed of in conformity with the will, and not in the heirs at law of the decedent under the statute of distributions.</p> <p>(a.) Whatever interest the plaintiffs had was not by descent, but as purchasers, subject to the payment of testator’s debts and the assent of his legal representative.</p>

<p>Illegality. Evidence. Practice in Superior Court. Rules of Court. Practice in Supreme Court. Before Judge STEWART. Spalding Superior Court. February Term, 1882.</p> <p>Reported in the decisions.</p>

Railroads. Constitutional Law. Damages. Before Judge Underwood. Floyd County. At Chambers, May 1, 1882. To the report contained in the decision, it is only necessary to add that Chambers filed his bill to enjoin the Cincinnati and Georgia Railroad Company from proceeding to build its road through his land pending an appeal from the award of assessors fixing the amount of damage to his land by locating the road thereon. The injunction was denied, and complainant excepted.

New Trial. Taxes. Liens. Dower. Judgment. Before Judge CRISP. Dooly County. At Chambers. February 1, 1882. The ordinary and county judge of Dooly county filed a bill against Lilly, executor of Calhoun, deceased, and Mrs. Calhoun the widow of decedent.

<p>1. The ground of objection to evidence in the court below should be made to appear in the record. A mere general objection, without any reason assigned therefor, is too vague to form the basis of a judgment.</p> <p>(a.) In this case we do not find any valid reason for the objection to the evidence which was rejected.</p> <p>2. A decree for specific performance upon a bill to recover the title to land may be recorded in the county where the land lies, and operates as a deed without the actual execution of a conveyance between the parties. The making of such a conveyance is superfluous.</p> <p>3. Prior to the adoption of the Code, the mere nomination of a trustee for a married woman did not of itself create a separate estate for her.</p> <p>(a.) Although a trust for a married woman may have been created prior to the act of 1866, yet after that act she had power to sell and .convey the trust property, and the trust became executed.</p> <p>4. Where a deed was made to the husband of a married woman in 1862, as trustee for her, for the purpose of securing the property for her use against the debts, contracts and liabilities of the husband, with power in the trustee to sell and convey with the voluntary written consent of the wife, and with power in the wife “ to convey said’ land to whomsoever she may deem proper by deed or testament,” a deed from the wife was a substantial compliance with said power, and was good. '</p>

Mesne Profits. Vendor and Purchaser. Principal and Agent. Husband and Wife. Before Judge WELLBORN. Hall Superior Court. February Term, 1882. To the report contained in the decision it is necessary to add only the following: The defendant in ejectment having disclaimed title, the contest was on the subject of mesne profits.

<p>Judgments. Executions. Before Judge Stewart. Newton County. At Chambers. May 24, 1882.</p> <p>Reported in the decision.</p>

<p>Ports. Wharves. Contracts. Charge of Court. Custom. Before Judge Hardin. City Court of Savannah. February Term, 1882.</p> <p>Reported in the decision.</p>

<p>[Owing to providential cause, Jackson, Chief Justice, did not preside in this case.]</p> <p>An employe of a railroad, suing the company for injuries sustained by him from the negligent performance of any act in which he participated, has not made a prima facie case for recovery without proving either that he Was free from fault himself, or that there was negligence bn the part of his fellow-servants. Any presumption of negligence would apply as well to him as to others participating in the common- act, and to be benefited by a presumption against them, he must rebut it as to himself.</p> <p>(a.) Plaintiff, a railroad employ é, sued the company for á personal injury to himself. The evidence as to the accident was as follows : He was at work on a trestle some twenty feet above the ground, lining- the track, using therefor a “ pinch-bar ’’and gauge, to make the , width uniform. - It was near train time, and the boss under whom plaintiff worked told him to hurry. Seeing an irregular place in the track, which it was necessary for safety to make uniform, plaintiff used the “ pinch-bar ” as a lever to push the track into position, résting one end of the bar upon the stringer of the bridge. Failing to move the track on the first and second efforts, plaintiff stooped and threw his weight against the short bar which he was using. The wood of the stringer on which the bar rested split off, and plaintiff fell to the ground, breaking his leg:</p> <p>Held, that a prima facie case was not made out, and a non-suit was right.</p>

Criminal Law. Bonds. Before Judge Brown. Cherokee Superior Court. February Term, 1882. W. W. Holcombe swore out a warrant against Bond, charging in his affidavit that the defendant had “ made a violent assault upon deponent with attempt to murder.” On the trial before the magistrate, the defendant was committed. He at first gave bond, but his sureties subsequently delivered him to the sheriff.

<p>[On account of providential cause, Jackson, Chief Justice* did not preside in this case.}</p> <p>1. One who purchases a negotiable paper held as collateral security before due, bona fide and for value, takes it free from the equities between the maker and the payee, ■ and stands upon the same footing as any other innocent purchaser. But any circumstance which would place a prudent man on his guard in purchasing negotiable paper will be sufficient to constitute notice to a purchaser of such paper before it is due.</p> <p>(al) Where one takes a note payable to order before due, on the face of which are written the words, “To be held as collateral,” such words are sufficient to put the purchasee on notice of the existence of equities between the parties.</p> <p>2. A selling agent to whom goods were consigned desired to execute a collateral security to his principal to secure to the latter the payment of any money received on account of sales, and for that purpose jointly with another gave to the principal a promissory note. In a suit thereon, it appeared that the agent was in default on account of such goods $2,800, and to account therefor he showed unpaid accounts of purchasers of goods amounting to $1,700. No separate plea was filed by the other maker of the note. The verdict was against the agent, but in favor of the other maker :</p> <p>Held, that this verdict was contrary to evidence. It should have been against both defendants.</p>

Mortgage. Title. Before Judge WELLBORN. Hall Superior Court. February Term, 1882. Findley brought trover in a justice’s court against Deal for a cow and calf. The case was tried before a jury, who found for the defendant. The plaintiff carried the case to the superior court by certiorari. On the hearing, the court sustained the finding below, and plaintiff excepted. The case was based on the contract set out in the decision.

<p>1. While ordinarily parol testimony is inadmissible to contradict or vary the terms of a valid written contract which is plain and unambiguous on its face, yet if there has been fraud in the execution of the instrument so as to make it read differently in a material point from what the parties intended, then such fraud may be alleged by plea and proved by parol.</p> <p>(at) A plea to a suit on a promissory note alleged that the defendant had objected to signing the note with certain stipulations in it ; that the plaintiffs’ agent agreed to strike out such parts of the note, and with his pen made an erasure therein; that defendant, relying on such provisions being erased, signed the note, but that in fact the agent had erased other words in the note and left the objectionable words, thereby defrauding defendant:</p> <p>Held that such plea was not demurrable, and could be sustained by parol.</p> <p>2. The verdict is supported by the evidence.</p>

<p>[On account of providential cause, Jackson, Chief Justice, did not preside in this case.]</p> <p>1. Where in payment of a debt a debtor assigns to his creditors certain fi.fas., stating in the transfer that it is “without any liability on my part whatever, they paying and settling all fees and costs due on said ft. fas.," the creditors would have no right of action based on the transfer against the debtor, arising out of a failure to realize money on the ft. fas. If they have any right of action at all, it would be by reason of false representations or deceit; and that being an action based on a tort, would not be assignable.</p> <p>(a.) The transfer of the filfas, being to a firm, that one of its members was the real creditor, would not give him the right to bring the action in his own name.</p> <p>(A) What one cannot recover himself cannot be recovered by garnishment against him.</p> <p>2. Although one may have the right to bring an action for deceit against another, the tortfeasor is not subject to garnishment at the instance of a creditor of the injured party. Garnishees are required to answer as to indebtedness and as to assets or property in hand> not as to the torts they may have committed against the defendant in the suit.</p>

<p>Year’s Support. Title. Lost Papers. Before Judge Wellborn. Hall Superior Court. February Term, 1882. .</p> <p>Reported in the decision.</p>

Equity. Lis Pendens. Trusts. Administrators and Executors. Before Judge Lawson. Greene Superior Court. March Term, 1882. Various judgment creditors of James H. Willis were proceeding to enforce their claims against certain land held by him, known as part of the “ Dover place,” and F. C. Foster, trustee, claimed the right to enforce a decree held by him against Willis et al., on the land.

Equity. Trusts. Title. Notice.- Administrators and Executors. Before Judge LAWSON. Greene Superior Court. March Term, 1882. This case was before the Supreme Court on a former occasion, and will be found fully reported in 65 Ga., page 82.

Husband and Wife. Alimony. Title, Liens. Before Judge Snead. Richmond Superior Court. October Term, 1881. A ft. fa. in favor of Lamar vs. Blair, was levied on certain land, which was claimed by Mrs. Sarah Jennings. The case was tried upon an agreed statement of facts, which was, in brief, as follows: In 1859, Blair was married to Melinda Lamar, the daughter of plaintiff, and deserted her in 1871. She thereupon returned to her father with whom she has since lived.

<p>Railroads. Damages. Negligence. Before OSCAR Reese, Esq., Judge pro hac vice. Carroll Superior Court. April Term, 1882.</p> <p>Reported in the decision.</p>

<p>Equity. Injunction. Verdict. Practice in Superior Court. Before Judge WILLIS. Muscogee Superior Court. May Term, 1882. '</p> <p>Reported in the decision.</p>

New Trial. Criminal Law. Practice in Superior Court. Jurors. Before Judge BROWN. Cobb Superior Court. November Term, 1881. To the report contained in the decision it is only necessary to add, in connection with the fifth division thereof, that Sanges, the person assaulted, in stating how the assault happened, testified as follows: “ A young man reported that Neese’s house had been broken into. I notified Stephens, the sheriff, of the fact. I'was acting as a special policeman.

Pilots. Contracts. Laws. Public Policy. Constitutional Law. Before Judge TOMPKINS. Chatham Superior Court. Held: even if the said section 1512 is constitutional, and was not annulled by section 4237 of the revised statutes of the United States, because the said steamer Saxon did take a pilot authorized by section 4444 of the revised statutes to pilot the vessel.

Levy and Sale. Evidence. Claim. Laws. Before Judge WELLBORN. Hall Superior Court. February Term/1882. To the report contained in the decision it is only nec■essary to add, in connection with the third division thereof, that Bagwell was permitted to testify as follows, over the objection of plaintiff: Knew the land in dispute. His son purchased it at the coroner’s sale. Since said sale his son had paid taxes on the land.

<p>A bond for titles contained the following clause : “Now, if he (McDaniel, agent, who was the vendee) shall well and truly pay said notes at the times above specified, then the said C. W. Gray & Co. (the vendors) are bound to execute to said McDaniel, agent as aforesaid, or assigns, a good and sufficient title to the land aforesaid, but on failure of the said McDaniel, agent as aforesaid, to pay the aforesaid sums of money, or either of them, at the times therein specified, then the above obligation to be void and of no effect.” The purchaser paid one hundred dollars on the land, but failed to make any further payment. The vendors thereupon re-entered, the land being still vacant, and resold to another purchaser:</p> <p>Held, that upon the failure of the purchaser to pay, the vendors had the right to reduce the purchase money notes to judgment, file a deed and sell the land; or, they could bring ejectment; or, if the land was still vacant, they could re-enter and take possession of it. (a.) But when they pursued the last named course, they thereby elected to rescind the trade, and an implied obligation on their part arose to restore to the purchaser the amount of purchase money paid by him, less such an amount as would prevent actual loss to them by reason of his non-performance of the contract; and he could bring his action therefor.</p> <p>(A) After such rescission by the vendors, it was not necessary for the vendee to show that he was ready and willing to comply with the contract by paying the purchase money before bringing suit for what he had in fact paid.</p>

Common Carriers. Damages. Negligence. Charge of Court. Presumption. Contracts. Custom. Before Judge Harden. City Court of Savannah. February Term, 1882.

<p>[On account of providential cause, Jackson, Chief Justice, did not preside in this case.]</p> <p>1. Acts of the legislature are presumed to be constitutional, and the courts will not declare them unconstitutional except where they are made clearly sp to appear.</p> <p>(a.) The title of an act was as follows : “ An act to prevent the sale of spirituous or malt liquors near the Ridge Valley Iron Works, in Floyd county.” The body of the act provided that, “there shall not be delivered, sold, or furnished by retail, as a beverage, any spirituous or malt liquors within the radius of two and a half miles from said Ridge Valley Iron Works,” etc.:</p> <p>Held, that a reasonable construction will be given to the statute ; and so construing it, the words “delivered” and “furnished” are both qualified by the words “by retail,” which mean by sale in quantities of less than one quart. In this view, the body of the act does not contain matter different from its title.</p> <p>2. If the intention were to make illegal the delivery or furnishing of liquor otherwise than by sale, the act would be firo tanto unconstitutional.</p> <p>(a.) On the trial of an indictment for violating this law, a charge that if the defendant sold, or if he delivered, or if he furnished to anyone spirituous or malt liquors, etc., he would be' guilty, was error.</p>

Possessory Warrant. Actions. Birds. Property. Husband and Wife. Before Judge TOMPKINS. McIntosh Superior^Court. May Term, 1882. Mrs. Catherine Mitcherson sued out a possessory warrant against Patrick Manning to recover possession of a canary bird. On the trial before the justice, the evidence on behalf of the plaintiff was, in brief, as follows: The bird was obtained by the plaintiff from the captain of a vessel, and had been in her possession for about two years.

<p>Claim. Mortgage. Judgment. Liens. Title. Before Judge Harris. Meriwether Superior Court. February Term, 1882.</p> <p>Reported in the decision.</p>

<p>Roads. Alleys. Easements. Deeds. Title. Before Judge SIMMONS. Pulaski Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

Contracts. Gold. Damages. Before Judge HarrÍS. Troup Superior Court. November Term, 1881. Lanier et al. brought suit against Atkinson & Clark on the following note: #1,500.00. Ten months after date we promise to pay Mary Ann, V. J. and Eliza F. and Rufus A. Anderson, minor children of John B. Anderson, fifteen hundred dollars in gold or its equivalent, with interest from date, for value received. March' 8,1866.

<p>i. A testamentary paper in the following terms was offered for probate : “ I, Riley Garrett, of the county of Randolph and state of Georgia, being of perfect mind and memory, thanks be given unto God, calling unto mind the mortality of body and knowing that is appointed unto all men once to die, I do make and ordain this my last will testament, that is to say, principally, and first of all, I give and recommend to the earth to be buried in decent Christian manner, at the discretion of executors, who shall be Isham Wheeless, and so much of my worldly estate I give and bequeath unto William Augustus Wheelus, and I do hereby revoke and disannual all other wills, legacies and bequests, confirming this to be my last will and testament: ”</p> <p>Held, that such a will was not so uncertain as to be void. A will should not be refused to be admitted to probate on account of uncertainty, unless it be so uncertain that it cannot be construed by the aid of parol testimony.</p> <p>2. It appears that the testator in this will was a bastard ; that the executor was his first cousin, and the legatee named was the executor’s child, six years of age ; that he kept his will and a photograph of the boy in his trunk together; and that a year before his death he stated that this legatee was the only relation he recognized (the father of the legatee having died) though there were others nearer of kin, in fact:</p> <p>Held, that in the light of these facts, the intention of the testator was to provide for his burial expenses, and leave the remainder of his property to the legatee named. ¡</p>

<p>Injunction, Equity. Municipal Corporations. Naphtha. Illuminating Oils. Before Judge Tompkins. Chat-ham Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>Mortgage. Homestead. Evidence. Deeds. Warranty. Levy and Sale. Before Judge SIMMONS. Washington Superior Court. February Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>Evidence. Husband and Wife. Before Judge Willis. Muscogee Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

Equity. Wills. Estates. Before Judge Simmons. Bibb County. At Chambers, July 17, 1882. Mary Franklin Butler, by next friend, filed her bill against James A. Ralston and his wife, Ida Ralston, J. M. Johnson and John C. Butler, administrator de bonis non of Marcus A. Franklin, alleging in brief, as follows: Marcus A. Franklin died .testate in April, 1858, leaving a large estate of both real and personal property; also a wife and three children, one of age and two minors.

<p>Debtor and Creditor. Equity. Injunction. Traders. Before Judge Stewart. Upson Superior Court. July Term, 1882.</p> <p>Reported in the decision.</p>

<p>Wills. Evidence. Before Judge TOMPKINS. McIntosh County. At Chambers. June 3, 1882.</p> <p>Reported in the decision.</p>

Criminal Law. Municipal Corporations. Laws. Before Judge Tompkins. McIntosh Superior Court. May Term, 1882. Rothschild was summoned to appear before the police court of the city of Darien, the summons served upon him being as follows: “ Police Office, Darien, Ga., February 9, 1880.

<p>Administrators and Executors. Evidence. Charge of Court. Vendor and Purchaser. Fraud. Contracts. Before Judge Harden. City Court of Savannah. July Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. Where an administrator held a judgment for purchase money of land sold by his intestate, he could not legally have the land levied on and sold and buy it for himself at less than its value and less than the amount of this judgment. The judgment was a part of the assets of the estate in his hands, and to so use it was a breach of his duty as administrator.</p> <p>(a.) Where, after so purchasing the land, the administrator sold it as his own, the heirs could bring suit on his bond, and the measure of the recovery would be the value of the judgment with interest, less the sum paid out by him in order to hold the land, with interest.</p> <p>(1.) That the administrator, after the sheriff’s sale, a ain bought the property at a sale by an assignee in bankruptcy of the defendant in the judgment, to protect his title, did not alter the case. Such purchase would inure to the benefit of the estate, and'the administrator could claim no more than to be allowed the amount so paid out, with interest.</p> <p>(c.) If credit has not been given to the administrator for the sums so paid out by him, with interest, it should be done.</p> <p>2. After January 1st, 1863, an administrator could not, without an order of court, invest the funds of the estate in his hands, except in ' state securities.</p> <p>3. The court did not err in regard t<? the Aderhold and Jackson & Morris claims. The first rested on disputed facts; the second is even unintelligible without explanation.</p>

<p>[ Jackson, Chief Justice, being disqualified, Judge Tompkins, of the Eastern Circuit^ was appointed to preside in his stead in this case,]</p> <p>' i. An application for the writ of quo warranto is not such a suit as in which there are appearance and trial terms of court, but such an application is for hearing as causes at the trial terms thereof.</p> <p>2. A judgment overruling a demurrer to an application for the writ of quo warranto is not such a final disposition of the cause as from which a bill of exceptions can be taken directly to this court.</p> <p>3. The policy of the law in this state being that such extraordinary writs as quo warranto, mandamus and prohibition should be determined as speedily as possible, all objections to the rulings of the court upon motion or demurrers may be taken advantange of by assigning them as error in a general bill of exceptions tendered after the final judgment upon the whole case.</p> <p>4. If the final decision or judgment in a quo warranto case is rendered in the court below, while this court is in session, then the bill of exceptions shall be tendered and signed within ten days after such final determination of the cause. And if this court should not be in session when such final decision or judgment is rendered, then the bill of exceptions shall be tendered, and signed within twenty days thereafter.</p> <p>5. A bill of exceptions pendente lite to the decision of the judge overruling the demurrer in a quo warranto case need not be tendered by the defendant; and a general bill of exceptions tendered to such decision should not be signed by the judge. But where the judge does sign such general bill of exceptions, he thereby sends the whole case out of his jurisdiction into this court, and has no kind of authority over the cause until remitted from this court back to the court below.</p> <p>6. The bill of exceptions pending in this court, taken from the judgment overruling the demurrer in the quo warranto application, is improperly here; and that bill of exceptions, as well as this application for the writ of prohibition, must be dismissed.</p>

<p>Executions from the superior court should' be directed to “ all and singular the sheriffs of said state and their lawful deputies,” but a direction to “ all and singular the sheriffs of said state ” only will not require the quashing of the fl.fa., the defect being amendable,</p> <p>(a.) Where a fi. fa. so directed was in fact placed in the hands of a sheriff and levied by him, sembie that the want of a direction to the deputy sheriffs would be immaterial, and it would not be necessary to amend.</p>

Verdict. New trial. Landlord and Tenant. Before Judge Lawson. Baldwin Superior Court. May Term, 1882. Thomas brought his action against the mayor, etc., of Milledgeville.

<p>Judgments. Motions. Claims. Parties. Before Judge Simmons. Houston Superior Court. October Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>,i. The powers and duties of municipal corporations are legislative or judicial and ministerial. For a failure to perform the first, or for errors of judgment committed in their performance, the corporation is not liable ; for neglect to perform ministerial duties, or ¡for negligent, improper or unskillful performance thereof, the corporation is liable.</p> <p>(a.) Aliter, where the act complained of is entirely, outside of the general or special powers of the corporation.</p> <p>2. Cities (unless acting under some special grant of power), like individuals, must so use their own property as not to damage that of another.</p> <p>3. All persons owning lands have power to ditch and embank them so as to protect them from freshets and overflows. But to render a city liable for allowing an embankment on its land to be destroyed, it must appear that there was an imperative duty to maintain the same.</p> <p>4. Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed.</p> <p>(a.) The mere use of the corporate property of a city by it for a particular purpose, is not a dedication of such property for that purpose forever.</p> <p>5. Without special statutory authority by which it is made the duty of a municipal corporation to erect, or, after erecting, to maintain dykes, walls or levees to prevent the waters of a natural stream within the corporate limits from overflowing its banks and dam- • aging a citizen’s premises, no recovery can be had against the corporation for causing or permitting the destruction of such works voluntarily erected by it on its commons or the corporate domain, though they may have stood for a great length of time and been trusted to by the adjacent landholder both in making his original purchase and in making his improvements.</p> <p>6. A duty to erect and maintain works to protect a bridge belonging to the corporation does not raise an obligation to keep such works on foot for other purposes, such as preventing damage to citizens by overflow.</p> <p>Jackson, C. J., concurred specially.</p>

Liens. Judgments. Bankruptcy. Evidence. Before Judge CRISP. Dooly County. At Chambers. March i> 1882.

<p>Statute of Limitations. Fraud. Before Judge UNDERWOOD. Floyd Superior Court. March Adjourned Term, 1882.</p> <p>Alexander & Wright brought suit in a justice’s court against Printup on an open account, dated July 1, 1873 for a balance of $91.00. The suit was brought January 17, 1882, and was carried-to the superior court by appeal. Defendant pleaded the statute of limitations. ' Plaintiffs sought to relieve the bar by showing thefollowing facts: They were employed by Printup, in 1869 or 1870 to represent him in certain litigatiomwhich terminated at the fall term, 1872, or the spring term, 1873, of court. A balance of $91.00 remains due on the fee. Pending this litigation, Alexander & Wright made a collection for the estate of one Smith, out of which Printup and his partner, Fouche, claimed, a fee of $200.00. Upder instructions from their client, Alexander & Wright declined to pay this fee. Printup & Fouche brought a rule against them, and subsequently recovered, and the amount was paid over in full. Alexander, one of the plaintiffs, after stating the foregoing facts, testified as follows:</p> <p>“At the time of the bringing of the rule by Printup & Fouche against our firm, there remained unpaid of our fee from Printup, $91.00. This balance was the subject of a conversation soon after the rule was served on us, and we understood from Mr. Fouche, with whom the conversation was had, that this balance would be allowed us in a settlement of the rule case, in the event a judgment went against us; and we understood him to speak by the authority of Col. Printup, and were satisfied to let this balance remain to be settled when the rule was finally disposed of; and this was the reason we never sued the claim for this balance until lately, when-Col. Printup refused to allow us a credit upon the judgment against us in favor of Printup & Fouche.”</p> <p>Fouche, partner of Printup, testified that with Printup’s consent, he did, at one time, offer to allow the claim of Alexander & Wright to go as a credit on the claim of Printup & Fouche, provided Alexander & Wright would pay it, but they would not do so, and litigated the claim for about nine years.</p> <p>The jury found for the plaintiffs. Defendant moved for a new trial, which was refused, and he excepted. For the other facts, see the decision.</p>

<p>Practice in Supreme Court. Fraud. Trustees. Equity. Before Judge SlMMONS. Dougherty Superior Court. April Term, 1882.</p> <p>To the report contained in the decision, it is necessary to add only the following: The trustee of Mrs. Cruger and her children sought, by bill, to enjoin the creditors of Cruger, the husband and father of thzcestuis qite trust, from subjecting certain property to the payment o fhis debts. The prayer of the bill was for injunction, subpoena and general relief; also a prayer for the payment of certain counsel fees due by the trust estate. Claghorn & Cunningham, who were among the defendants to the bill, attacked the conveyance from Cruger to the trustee of his wife and children, under which the latter claimed. Defendants denied any knowledge of equitable ownership in the wife and children, and set up that they gave credit to Cruger on the faith of his owning the property, and that the goods sold by them were for the benefit of the family. The answer closes as follows : “ And they ask that they may be permitted to go forward and take judgment for the amount of principal and interest due on the same” (their claim which was in suit) “ against the said property,” etc. The other defendants did not answer, but various orders making and striking parties appeared.</p> <p>On the trial, the jury found that the “ Sherwood place ” (the property in controversy) was subject to the debts of the husband and father, held by the defendants in the bill and that the land be sold by the sheriff and the proceeds returned to the next term of court for distribution among the creditors. Complainant moved for a new trial, which was overruled, and he excepted. One assignment of error was, that the verdict was not in conformity with the pleadings.</p>

<p>Religious Corporations. Trusts. Charities. Corporations. Statute of Uses. Before Judge HlLLYER. Fulton County. At Chambers. May 22, 1882.</p> <p>To the report contained in the decision, the^ following should be added, in connection with the sixth division thereof: Mitchell made a deed to Stephen Elliott, Jr., of Monroe county, “and of the Protestant Episcopal church in the division of Georgia.” The habendum and tenendum clause was as follows :</p> <p>“ To have and to hold the said bargained premises unto him, the said Stephen Elliott, Jr., bishop as aforesaid, for the use of the Protestant Episcopal church in said division of Georgia in fee simple ; and the said Samuel Mitchell, his heirs, executors and administrators and assigns, the said bargained premises unto him, the said Stephen Elliott Jr., his heirs and assigns will warrant,” etc.</p> <p>One question in the case was, whether this vested a personal trust in Elliott or a trust in him as bishop, which passed to his successors in office.</p>

<p>Divorce. Cruelty. Condonation. Before Judge Hood. Early Superior Court. April Term, 1882.</p> <p>Reported in the decision.</p>

Municipal Corporations. Jurors. Possession. Landlord and Tenant. Constitutional Law. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1882. Lyon and wife brought an action for damages against the Mayor, etc., of Cartersville, for entering upon land and carrying away gravel therefrom, and damaging the property by hauling the gravel across it. The case was brought September 14, 1877. It was appealed to the superior court October 1, 1877.

<p>Tax.. Municipal Corporations. Actions. Before Judge WlLLIS. Muscogee Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

Tax. Municipal Corporations. Before Judge Hill-YER. Fulton County. At Chambers. September 12, 1882. The new charter granted to the city of Atlanta in 1874 authorized the mayor and general council to require persons carrying on any business, trade, calling, avocation or profession within the corporate limits to register and pay a license, not exceeding $25.00 per annum.

<p>Money rule. Attorney and Client. Executions. Justice Courts. Jurisdiction. Promissory Notes. Before Judge Fain. Bartow Superior Court. January Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. An action for breach of warranty was brought on the following instrument: “Received of Wm. H. Young the sum of four hundred dollars for one pair of large bay horses, both of which we guarantee to be perfectly sound and without blemish. $400. One horse now having a cold or little distemper:”</p> <p>Held, that a reasonable construction of such contract as to the last named horse, would be that the vendor warranted him sound; that he had no disease which would render him worthless ; and that, notwithstanding he had a cold or distemper, the vendor warranted that it should not hurt him.</p> <p>Speer, J.</p> <p>(a.) A general warranty of soundness may cover even patent defects where intended so to be covered.</p> <p>2. Whether the construction placed by the court on the contract, when standing alone, was correct or not, when construed with its context the law was fairly submitted to the jury, the court having charged in the same connection that if the death or worthlessness of the horse was not produced by the disease aloue, but by the manner in which the horse was treated, plaintiff could not recover.</p>

<p>1. If it be competent in a criminal case to prove by one witness what another, who has since become inaccessible, testified on the committing trial, a proper foundation must first be laid by showing that the witness proposing so to testify professes to remember the substance of the entire testimony as to the particular matter about which he testifies.</p> <p>2. It was not admissible to prove by a witness sworn on the trial in a . murder case that he had heard another, who had been subpoenaed but was not present, state that the latter had heard the person killed utter threats in regard to the defendant, and that the witness sworn had communicated such threats to the defendant.</p> <p>(a.) Especially is this the case where no motion was made for a continuance to procure the testimony of the absent witness, who had been present on a former trial of the case, but was not sworn, and no special effort was made to secure his presence.</p> <p>3. Where one ground of a motion for new trial is that one of the jurors was not impartial, and statements made by him are relied on to support such ground, the juror may purge himself, and if he does so to the satisfaction of the presiding judge, this ground will be overruled.</p> <p>(a.) In the present case the purgation was thorough.</p> <p>4. While defendant’s counsel was reading authorities touching the fears of a reasonable man which would justify a homicide, and touching the doctrine of reasonable doubts, it was not error for the court to state to him that he recognized the principles so laid down to be the law, and would give them in charge without the reading of further authorities.</p> <p>(a.) Where counsel for defendant persisted in reading such authorities, that counsel for the state commented upon such fact, does not require a new trial.</p> <p>5. Where a prisoner has been arraigned, pleaded not guilty and atrial has been had, resulting in a mistrial, it is not necessary to re-arraign the prisoner in order to put him again on trial.</p> <p>6. If requests be covered by the general chars! e, a failure to give them will not require a new trial.</p> <p>7. The verdict is supported by the evidence.</p>

<p>1. A bill cannot be maintained at the instance of one of the distributees of an estate to recover personal property thereof, except through the legal representative of such estate. To allow creditors or heirs to,sue third persons otherwise than through the representative of the estate, there must be collusion, insolvency, unwillingness to collect the assets, or some other like special circumstance.</p> <p>(at) In this case no reason is alleged or shown why the heir should be allowed to proceed directly.</p> <p>2. After a ward has become of age, the relation of guardian and ward ceases, except for the purpose of a settlement, and if, before it has been made, the ward dies, his personal estate passes to his legal representative, and the statute will run against him if he fails to proceed against the former guardian.</p> <p>(a.) Five years are allowed before the statute of limitations begins to run against an unrepresented estate; after that time the statute runs against it as in ordinary cases.</p> <p>3. The act of 1858 vested the administration of the estates of wards in their guardians, where the former died pending the relationship of guardian and ward, and not after it had terminated by the ward’s becoming af age.</p> <p>4. Where a minor claims through an estate, the bar of the statute of limitations will apply to him when the estate or its legal representative is barred.</p>

<p>Judgments. Practice in Superior Court. Evidence. Debtor and Creditor. Before Judge HOOD. Terrell Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. An applicant for exemption of personalty under the constitution of 1877 is only entitled to such exemption of the value of $1,000, as against a debt antedating that constitution.</p> <p>(a.) There is no authority of law to set apart cash, under the constitution of 1877, as against a debt antedating such constitution, and then invest in realty, so as to defeat such debt.</p> <p>2. While a purchase by an administrator from himself is voidable, yet if an heir at law elects to ratify such a sale, and brings suit for his share of the proceeds, a judgment so recovered has no superiority over other judgments against him, but ranks with them according to its date.</p>

Contracts. Gaming. Actions. Before P. H. BREWSTER, Esq., Judgzfiro hac.vice. Carroll County. At Chambers, May 15, 1882. Benson brought trover against Dyer for a horse. On the trial, the evidence showed, in brief, the following facts: Benson and Dyer agreed to run a horse race. The winner was to take both horses. Dyer won, and took Benson’s horse. Benson sued for his horse within six months.

<p>Liens. Claims. Before Judge POTTLE. Clarke Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. An absolute deed, though made as' a security for a debt, passes title, and a judgment subsequently rendered against the grantor, has no lien on the land which can be enforced by levy and sale until the title can become reinvested by redemption.</p> <p>2. ' Where a plaintiff in fi.fa. submits his proof to the jury with no motion to dismiss or withdraw the levy, he cannot complain after verdict against him that the levy should have been dismissed; certainly not where a question of fact, such as the respective dates of a deed and the judgment on which the fi.fa. is founded, is involved.</p> <p>3. While at law the interest of the grantor in an absolute deed to secure a debt is not subject to levy, it is not ruled that in such a case as this the plaintiff would be remediless in equity.</p>

<p>1. An owner of land executed a paper by which, in consideration of love and affection and the sum of one dollar, it was stated that he “hath given unto my niece’s daughter and the heirs of her body at my decease, the following negroes and their increase. * * * * To have and to hold all and singular the premises hereby given unto Aliff Tomlinson and the heirs of her body, my neice’s daughter, at my decease forever," etc.:</p> <p>Held, that the instrument was a will, not a deed, and should be probated before it can avail as a muniment of title. t</p> <p>2. Such instrument vested the absolute title in the niece’s daughter. A marriage contract having been entered into by the niece’s daughter upon marrying, according exactly with the above instrument, and she having died before her husband, in 1862,-he took absolutely and could convey a good title.</p> <p>3. Although trust funds may have been misapplied and invested in certain property, still a purchaser thereof for full value and without notice of the trust, will be protected.</p>

<p>[Jackson, Chief Justice, being related to parties in interest, did not preside in this case J</p> <p>A judge is not bound to send a case to the jury when there is not sufficient evidence to support a verdict for the plaintiff, if found; nor where, admitting ail the facts proved and ail reasonable deductions therefrom, a verdict for the plaintiff would be set aside, because no recovery should be had. In such cases he may grant a non-suit. On the other hand, a defendant cannot compel the court to take the place of a jury and pass upon the facts of á case ,by granting a non-suit, because he would not be satisfied with a verdict for the plaintiff. The court may always remit questions of fact to the jury, and he should not fail to do so whenever the plaintiff makes out a prima facie case.</p> <p>(a.) Negligence being peculiarly a question of fact for the jury, and in a suit against a radroad for a homicide of an employé, the absence of negligence on his part and its existence on the part of the cómpany being in doubt, anon-suit should not be granted, but the case should be submitted to the jury.</p>

<p>Railroads. Damages. Practice in Superior Court. Negligence. Charge of Court. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>Promissory Notes. Negotiable Securities. Before Judge HOOD. Clay Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>Guardian and Ward. Administrators and Executors. Parties. Before J udge CRISP. Crawford Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>^ i. On a bill to recover certain land, with rent therefor, and to cancel the deeds held by the defendant, there being also a prayer for general relief, and on the trial, it being admitted by both sides that one of the defendants had purchased the land from complainant, but whether he had fully paid being contested, and evidence being introduced thereon without objection, after verdict finding for the complainant a balance of purchase money, it was too late to urge for the first time, as a ground of a motion for new trial, that the pleadings did not warrant the verdict.</p> <p>(a.) Equity seeks to do full justice ; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject matter of the suit, provided the court has jurisdiction for that purpose.</p> <p>2. Where a vendee of land in possession thereof under contract of purchase from his vendor, but with only part of the purchase money paid, bought the property to protect himself, at a sheriff’s sale under a fi.fa. against his vendor, he was not thereby relieved from complying with his contract of purchase, but could set off the amount of money so expended by him against the balance of purchase money due the vendor.</p> <p>3. A request to charge, that though full payment by a vendee of land to a vendor, may not have been proved, yet, if the vendor several times acknowledged full payment, it would be equivalent proof, was properly refused. The weight of evidence is a question for the jury.</p> <p>4. Whether the court will re-open a case and allow further testimony after the argument has closed, is a matter of discretion, and his refusal so to do, will not work a new trial, unless his discretion has been abused ; especially not, where the evidence is merely cumulative of that which has been introduced.</p>

<p>Tax. Executions. Before JOHN J. Hunt, Esq., Judge pro hac vice, Spalding Superior Court. February Term, 1882.</p> <p>Reported in the decision.</p>

<p>Appropriation of Payments. Debtor and Creditor. Before J. H. Guerry, Esq., Judge fro hac vice. Randolph Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

<p>Wfiere a tenant in common mortgaged his undivided interest in land to secure a debt, and subsequently an agreed division was made, and his portion set apart to him in severalty, the mortgagee could assent to such division, elect to proceed agáinst the portion so set apart to the mortgagor, instead of against his undivided interest, and with proper allegations could foreclose the mortgage on the same.</p>

<p>Fraud. Equity. Damages. Title. «Before Judge Simmons, Bibb Superior Court, October Adjourned Term, 1881,</p> <p>Reported in the decision.</p>

<p>x. A contract in general restraint of trade is void, but if in partial restraint of trade only, it may be supported, provided the restraint is reasonable and the contract founded on a consideration.</p> <p>2. Where Brewer, the proprietor of a medicine known as “Brewer’s Lung Restorer,” sold the same with the exclusive right to manufac- , ture and sell it, surrendered his trade mark to the purchaser, and agreed "never to use or permit my name to be used on any preparation which could be recommended and sold for the same purposes as Brewer’s Lung Restorer is used and sold for,” such contract is in partial not general restraint of trade ; and being for a valuable consideration, it is not unreasonable.</p> <p>(a.) Such contract does not limit the skill of the vendor in compounding medicines for the cure of throat and lung diseases, but stipulates that his name shall not appear with his consent on such medicines. The publishing and offering for sale of “Brewer’s Sarsaparilla Syrup, professing to be a permanent cure for all diseases of the lungs and throat,” is a violation of the contract; and the vendor being insolvent, equity will enjoin such action.</p>

<p>Husband and Wife. Promissory Notes. Contracts. Before Judge SNEAD. Burke Superior Court. May Term, 1882.</p> <p>Reported in the decision.</p>

<p>Equity. Debtor and Creditor. Injunction' and Receiver. Corporation, Jurisdiction. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. A judgment is conclusive as to all matters put in issue, or under the rules of law, might have been put in issue, in a former suit between the same parties concerning the same subject-matter in a court of competent jurisdiction.</p> <p>2. Where a decree in equity has been brought to the Supreme Court and the judgment below has been affirmed, a bill of review will no lie to reverse such judgment for errors apparent on the face of the record.</p> <p>3. Where one, for himself and as next of kin of certain minors, and to protect their interests, filed a bill in equity, to which a cross-bill was filed, the entire matter litigated and a decree rendered, in the absence -of all allegation or proof of .fraud, the minors would be bound thereby, and persons acquiring rights thereunder would be protected, though no formal order appears appointing the complainant .as guardian ad litem for the minors.</p> <p>(a.) Especially is this the case where the money borrowed, for which a decree was had against the trust estate of which the minors were benbenciaries, was used to pay taxes on the trust property and for the ■ benefit of the trust estate.</p>

<p>Alimony. Husband and Wife. Before Judge SIMMONS. Houston Superior Court. April Term, 1882.</p> <p>Mrs. Holleman filed a bill against hef husband for permanent alimony, and pending the case, filed her petition for temporary alimony. This was granted July 4, 1879, and the defendant was ordered to pay to the complainant twenty dollars per month. On April 22, 1880, the main case was tried, and resulted in a verdict and judgment vesting in the wife one-half of the property of the husband described therein. To this judgment the defendant excepted, and carried the case to the Supreme Court, where the judgment was affirmed. After the trial and verdict finding permanent alimony, the defendant failed to pay temporary alimony. On the return of the remittitur from the Supreme Court, it was entered ; and complainant moved for an attachment to compel the defendant to pay the installments of temporary alimony falling due from the date of the verdict to the entering of the remittitur. On the hearing, the court ordered this to be done, and defendant excepted.</p>

<p>[In this case Jackson, Chief Justice, being disqualified, Judge Tompkins, of the Eastern Circuit, presided in his stead.]</p> <p>1. A bill in equity was filed to subject certain homestead property to a lien against it, created by the advance of money in 1872, to pay off a mortgage lien held against it before the constitution of 1868. A verdict and decree were rendered for the complainants, and the defendants filed a motion for new trial on numerous grounds, and a new trial was granted on one of the grounds. The complainant excepted, and brought the case up on bill of exceptions, and this court affirmed the judgment on the motion for new trial, unless the complainant would write off a certain specified sum from the verdict. This was done in conformity with the direction of this court, and, upon the verdict so amended, a new decree was entered up substantially like the first one, except as to the amount written off. To this last decree the defendant assigned error, and filed a bill of exceptions:</p> <p>Held, that the granting of the new trial, upon one of the various grounds, was, in legal effect, a denial of the motion on all the other grounds, and such a judgment as from which the defendants might have taken a bill of exceptions directly to this court, and had all the law points settled.*</p> <p>2., That the affirming of the judgment below by this court upon the terms therein stated, was likewise a decisiqn against the defendants upon all the points involved in the motion for new trial, except the one held in their favor by the court below.</p> <p>3. The same questions in the same case between the same parties, as are now made upon the exceptions to the last decree, having been passed upon when this case was up before, this court will not again investigate or rule upon them.</p>

<p>1. - A levy by one without authority is no levy, and sale thereunder is no sale. Where an entry of levy showed that land in one county had been levied on by the sheriff of another county, it was on its face void.</p> <p>2. The title made to a purchaser at sheriff’s sale should show a good levy as a muniment of such title.</p> <p>{a.) Where there was no sheriff in a county, and a levy on realty was made by the sheriff of a neighboring county, such fact could be added to the entry of the levy, but no motion to amend the entry was made in this case.</p> <p>3. On the trial of a claim case, a failure to enter material facts by the sheriff cannot be corrected by proving such facts by parol, unless in exceptional cases where equity would relieve against such accident or mistake.</p> <p>(1a.) No such case was shown.</p> <p>(6.) While the dismissal of a levy does conclude the particular case pending, it does not ordinarily prevent or bar another levy and a trial on the merits.</p> <p>4. Th<“ dismissal of a levy concludes the particular case in which it is made, and a bill of exceptions lies to this court from such ruling.</p>

<p>1. Although a vendor may have sold a horse during the late war between the states, knowing that his vendee would use it in the Confederate service, does it follow that the vendor intended to aid such service, and that the consideration of the sale was illegal ? Quare.</p> <p>(a.) The charge of the court below was not such as to injure the plaintiff in error.</p> <p>2. Though a vendor sold a horse during the war, and the vendee rode it in the Confederate service, yet if, after the close of the war, the parties came together to settle a dispute in regard to the sale, bringing the horse and the note for the purchase money, and a note was given by the vendee to the vendor for the value of the horse as he then stood, such note was not invalid as founded on an illegal consideration.</p>

<p>, Judgment. Pleadings. Contracts. Before Judge Simmons. Houston Superior Court. October Adjourned Term, 1881.</p> <p>Reported in the decision.</p>

<p>Arbitrament and Award. Judgments. Before Judge CRISP. Sumter Superior Court. April Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

Res Adjudicata. Judgments. Before Judge Brown. Dawson Superior Court. March Term, 1882. S. B. Palmour, for the use of Moss, brought complaint against John Palmour. A note for $1,05000, dated February 1, 1861, due one month afterdate, by S. M. Ralston & Company to John Palmour, was by the latter placed in the hands of an attorney for collection, and his receipt given therefor.

<p>1. An exception to the charge as a whole cannot be considered, unless. the whole charge is error. . .</p> <p>2. A bill, acceptance or promissory note, either of the debtor or of a third person, is no payment or extinguishment of the original demand, unless it is expressly agreed to receive it as payment. Therefore, where a debtor caused a bank, as his agent, to transmit to his creditors a draft of such bank on a New York bank, which was without delay forwarded to New York for collection, but was protested, and the drawing bank failed, such draft did not extinguish the original debt, although on its receipt the creditors forwarded to to the debtor the account marked, “pd April 8, 1881,” and signed by them.</p> <p>Jackson, C. J., concurred specially.</p>

<p>Principal and Agent. Debtor and Creditor. Before Judge Stewart. Talbot Superior'Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. That certain members of the grand jury who found an indictment had previously served on the coroner’s jury who found that the defendant committed the homicide under consideration, is not a good ground for a plea in abatement to the indictment, nor for a new trial after the verdict;</p> <p>(a.) Traverse jurors stand upon a different plane from grand jurors, in respect to causes of challenge. .</p> <p>(b.) If a defendant can except to a grand juror at all on the ground that he has formed and expressed an opinion, it should be done before the true bill is found, and not on the trial.</p> <p>2. The newly discovered evidence relied on in this case did not require a new trial.</p> <p>(^.) When newly discovered evidence is relied on as a ground for new-trial, it should appear that defendant and his counsel were ignorant of it until after the trial.</p>

<p>Arbitrament and Award. ■ Practice in Superior. Court. Before Judge Snead. Richmond Superior Court. April Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. The agreed statement of facts in this case is so meagre and unsatisfactory, that this court is unable to pass upon the question of discharge of the property involved from the lien of plaintiff’s judgment.</p> <p>(a.) After a deed to land has been made to attorneys as a fee, and the grantor has been adjudged a bankrupt, to -say in an agreed statement of facts that the -land was “reported” in the bankruptcy proceedings, and “allowed” as fees to'the attorneys by the register, but was never in the charge of the assignee, is too vague and indefinite to form a basis for a judgment of this court, involving what may have been actually done in the bankrupt court.</p> <p>2. Actual notice to an agent of matters connected with his agency is also actual notice to his principal, and the latter is bound thereby.</p> <p>(a.) Notice to a purchaser of a subsisting judgment against property purchased, is only prima facie evidence of mala fides. and he may rebut such presumption by showing that he acted in good faith towards the judgment creditor. The question of bona fides in such cases is one to be reached by evidence and settled by a jury, not by the ruling of the judge, absolutely concluding one who purchases with notice of a judgment.</p> <p>Crawford, J., dissenting from this head-note.</p>

<p>[This case was argued at the last term, and the decision reserved. Speer, Justice, being disqualified, did not preside.]</p> <p>1. If one as agent of a railroad company accepted a free ticket therefrom, and while traveling over the road free of charge, upon leaving the train near a depot, was injured, he would be estopped from denying the existence of his agency.</p> <p>(a.) Though one may be an employé of a railroad company, yet if his agency is disconnected from the running of trains, and, while traveling, he is injured by the running of a train, he stands in the position of a passenger, and will not necessarily be precluded from recovery by the existence of some degree'of negligence on his part; but in such a case the doctrine of apportionment of damages on account of contributory negligence may apply. But where the injury did not result from the running of trains, and was disconnected therefrom, but resulted from the existence of a dangerous hole in the ground held by the company in connection with, its depot, at which the injured party was an agent, it would be necessary for him to be wholly blameless to authorize a recovery.</p> <p>(b.) If the plaintiff was an employé of the road, and was injured by co-employés engaged in business other than the running of trains, it does not matter that he was not connected with them in regard to the pit where the injury occurred ; to recover he must be blameless.</p> <p>2. Where one, at his own request, was put off of a railroad train at a point some distance from the depot on a dark night, but reached the depot in safety, and afterwards, instead of following the public road, relied on his knowledge of the locality and sought to follow a by-path which passed a pit on the' land of the railroad, which he himself had formerly cleaned out, and to carry his own baggage. along such pathway in the dark, if he missed the path, fell into the pit and was injured, he could not recover, although the underbrush and shrubbery around and in the pit had been cut by the railroad hands, according to their custom of annually clearing the right of . way, and though this had been done while plaintiff had been absent from home and without his knowledge, and a snag left in the pit injured plaintiff when he fell. The real cause of the injury was plaintiff’s own negligence.</p>

Interest and Usury. Before Judge CRISP. Lee Superior Court, March Term, 1882. To the report contained in the decision, it is only necessary to add that the witnesses on behalf of the plaintiff denied the existence of usury, and the only testimony on that subject, introduced by defendant, was as follows : ‘Tn Americus, 1875, he gave to N. Emanuel a promissory note for the sum of $-, and in said note there was about $60.00 usury.

<p>1. A petition by a ward directed to the ordinary for the purpose of citing her guardian to a settlement, which alleged that the petitioner was iwenty-one years of age, and that the defendant was her guardian, and asked that he be cited to appear before the court for an account and settlement with petitioner, was in substantial compliance with §1839 of the Code.</p> <p>2. The appearance and pleading of the defendant waived process or formal order of citation and service thereof. Code, §3335.</p> <p>3. The orders of courts of ordinary in this state, connected with the settlements of guardians and wards, are judgments of courts of general jurisdiction, and the necessary jurisdictional facts need not appear on the face'of the proceedings to render them valid. 17 Ga„ 195 ; 7 lb.,- 562 ; 54 lb., 87.</p>

<p>1. This court will not regard a direct exception to the verdict of a jury on the ground that it is contrary to law and evidence, where no motion for new trial has been made in the court below. When, therefore, exceptions pendente lite have been filed,- and at the termination of the case it is desired to have the rulings so excepted reviewed, the better practice is to have a valid exception to the final judgment, on which to graft an assignment of error on the interlocutory-decision.</p> <p>(a.) Whether an exception to the verdict as contrary to the law and evidence, will suffice as a basis to bring the case before this court for a review of the interlocutory decision, is not decided.</p> <p>2. Pending an action for damages resulting from the overflow of land caused by a mill dam,.the parties submitted the question to arbitration. By the terms of the submission, the arbitrators were to determine the arnount of damage to the land, “ past, present and prospective,” and also the height of the dam, which was never to be raised. The arbitrators returned an award, by which they found five hundred dollars damages, and also stated that they proceeded to measure the mill dam, and found “ it to be four feet four inches from the bottom of the river to the top of the dam on the east side of the river”:</p> <p>Held, that such award was too uncertain, and was properly set aside by the court.</p>

<p>1. Where one signs his name to a bill of sale by making his mark, such bill of sale is not rendered inadmissible because there was no witness to the signature. If proved genuine, such signature is good and binding.</p> <p>2. While the commissioners of McIntosh county, before whom this case was tried, did express the opinion that the bill of sale was worthless, still they rested their judgment on the existence of fraud, and on that question the evidence supported the finding. Code, §2751-</p>

<p>1. The verdict in this case was not contrary to law or the evidence.</p> <p>2. On the trial of a defendant charged with robbery, it appearing from the evidence of the person robbed that he had been Under the influence of liquor, or drugs contained therein, and so stupefied thereby that he really had no clear and satisfactory recollection of what did transpire on the day of the robbery, and that the court, for the purpose of arriving at once at what the witness knew, and shortening the examination, put the following inquiry to him : “ You had the money and was associating with these boys” (meaning the defendant and another), “and the next day the money was gone?” — this was not such an expression of opinion on the part of the court as to require a new trial.</p>

<p>x. Exception being taken to the grant of a new trial and error assigned •thereon, the writ of error will not be dismissed for want of proper assignment of error on rulings made by the court below, whether other grounds of exception be good or not.</p> <p>2. The first grant of a new trial on the ground that the verdict is not' supported by the evidence, will not be criticized closely, unless it appears that there has been an abuse of discretion by the court below.</p> <p>3. Where counsel have had an opportunity on the hearing to move to dismiss a motion for new trial because not properly before the judge, but have failed so todo, this court will not review his judgment on that ground, the point being made for .the first time in the bill of exceptions. 61 Ga., 281.</p> <p>(a.) Whether, in case the judge, without proper authority under order in term time or agreement, should pass, upon a motion for new trial in vacation, and in the absence of counsel, they would not have the right to raise the point for the first time by bill of exceptions ? Quaire.</p> <p>4. A judge who has heard a case may defer his decision without any consent of counsel; and the fact that the judge sends his decision to the clerk of the court to which the case belongs, while another, judge is legally presiding therein, would not invalidate the judgment. Such proceedings would, at most, be a mere irregularity.</p>

<p>1. No power is given to the judge of the criminal court of Decatur county by the act creating that court to attach a sheriff of another county for failure to execute a criminal warrant issued by him.</p> <p>(a.) If the general act creating county courts could be invoked, no such power is given thereby.</p> <p>2. A sheriff cannot be ruled out of the county of his residence for failure to execute a criminal warrant therein. Whether an attachment be a civil or criminal proceeding, the county of his residence is the proper venue of the case. Constitution, art. vi., sec. xvi., par. 6; 17 Ga., 187.</p> <p>(a.) Semble, that upon a proper proceeding by information to the court of the county of the sheriff’s residence, and after a hearing, he might be compelled by proper penalties to perform his duty, if he be neglecting it. Code, §§269, 361.</p>

<p>1. The right to correct the errors of inferior judicatories by certiorari is a constitutional right; and although the act creating the city court of Hall county provided that “a writ of error shall be direct from the said city court to the Supreme Court of this state, upon a bill of exceptions filed under the same rules and regulations as govern and control the issuing of writs of error and filing of bills of exceptions in the superior courts of this state,” such remedy is cumulative, and does not deny the right of certiorari.</p> <p>Jackson, C. J., dubitante.</p> <p>2. A plaintiff in certiorari must allege error so distinctly that a reviewing court may understand the ground of error relied on.</p> <p>(a.) For a plaintiff in certiorari to allege that the judge who presided on the trial of a criminal case was disqualified, “because he was the . attorney at law of the Richmond and Danville Railroad Company, which, it is averred, was interested in the litigation pending, involving the property which the applicant was convicLed of having forcibly entered and detained,” was not sufficient, where it did not appear in what manner either the judge or his client was interested in the present case.</p> <p>3. The statement of a prisoner is admissible by statute, to be weighed and passed upon by the jury, and they may believe it, notwithstanding it conflicts with the sworn testimony of witnesses. Therefore, when a legal and pertinent request to charge has been made in writing, based upon such statement, it should be given ; otherwise, the statement would be restricted in its effect.</p> <p>■4. It is error for the court to charge in a criminal case that the jury should not discredit sworn testimony entirely, in order to believe the statement in preference thereto. The credit to be given to the statement is a question exclusively for the jury.</p>

<p>When a certiorari to the decision of a county judge in a criminal case is sought, it must affirmatively appear that the petition, duly sanctioned, was filed in the clerk’s office within ten days from the trial; otherwise, the will certiorari be dismissed. Code, §301; 64 Ga., 751. 599: 60 lb., 633.</p>

<p>1. Where a consent order was passed in term time allowing the judge to hear a cause at chambers, during the session of the superior court of another county, and during such session another order was taken extending the time, but naming the same place, to hear the cause at another place than that specified in the order, was illegal, and the same having been heard over objections of counsel for one party, a reversal will result.</p> <p>(a.) The legality of the order allowing the case to be heard in vacation by the judge, in another county than that where the case was pending, is not decided.</p> <p>2. Where several parties were sued on a note — one as principal and the others as endorsers — there was no error in allowing them to adjust their rights and liabilities among themselves as sureties or endorsers, and to introduce parol testimony for that purpose, if the plaintiff was not delayed thereby. 1 Ga. 200, 547; 62 lb., 85 ; 65 lb., 673.</p> <p>3. Where contracts are not contrary to law, the courts are bound to enforce them as made. Therefore, in 1879.a note having provided that if it were not paid at maturity it should bear interest at the rate of twelve per cent., in a suit on such a note, a judgment for such agreéd Interest was right.</p>

<p>As a general rule, an appellate court cannot go beyond the jurisdiction of the primary court as respects rights. It follows its own modes of trial .and procedure to ascertain those rights, but does not determine and adjudicate other rights wholly outside the power of the lower court.</p> <p>(a.) Therefore, where suit was brought in a county court on a note for purchase money of land, and an appeal was taken to the superior court, a decree could not be rendered requiring titles to the land to be made.</p> <p>(b.) In the case in 52 Ga., 15, this point was not directly made. The court of ordinary stands on a different basis, and has some equitable powers in making settlements. 52 Ga., 15; 54 lb., 180; Code; §§1839, 1844, 1845, 2599, 2600.</p>

<p>[On account of providential cause, Jackson, Chief Justice, did not preside in this case.]</p> <p>Where a motion for new trial has been made during the term of the trial, it is permissible by consent order to set the hearing for a time and place in vacation, and to allow until then to complete a brief of evidence, and at such time and place the judge may, for cause shown, allow further time; but the brief of evidence must be completed withij the time allowed, or further time therefor must be expressly allowed. An order continuing the hearing is not sufficient; and where such hearing was continued from time to time, and the brief of evidence was not completed or approved for twelve months after the trial, the motion for new trial was properly dismissed on motion.</p> <p>(a.) After the time for completing the brief of evidence has long expired, the passing of an order continuing the hearing, and reciting that the rights of both parties as to the completing of the brief are reserved, will not give vitality to the motion.</p>

<p>[On account of providential cause, Jackson, Chief Justice, did not preside in this cased</p> <p>1. A distress warrant, unless arrested by counter-affidavit, is. final process, and may be levied on any property belonging to the debtor, and the same may be advertised and sold as in cases of levy under execution. The only difference between the lien of an ordinary common law judgment, and that arising under an uninterrupted distress warrant, is that the former binds the property of the defendant from its date, and the latter from the time of the levy. They both have the same general lien on the defendant’s property, as qualified above.</p> <p>2. When a counter-affidavit is filed, the process then becomes mesne, and the proceeding amounts to a suit for the rent; and pending the same, an action of complaint will not lie for the rent covered by the warrant, unless the proceeding under the distress warrant is so de- ' fective that no recovery can possibly be had thereon. 66 Ga., 729 ; 34 lb., 180.</p>

<p>Whether or not married women could bring suit in respect to their separate estates by virtue of the act of 1866 and the constitution of 1868, after the act of 1872, that power was explicitly conferred upon them; and the statute of limitations runs against them, as against other suitors. 65 Ga„ 573; acts 1872, p. 39.</p>

<p>1. Before a party can demand a continuance on the ground of the absence of a witness, it must appear that such witness has been subpoenaed. It is not sufficient that a subpoena has been sued out for him. Code, §3522.</p> <p>2. Where two defendants were indicted for larceny, the offense alleged being the stealing of cotton belonging to the prosecutor, on the trial of one of them, a possessoiy warrant previously sued out by the prosecutor against the defendant to recover the cotton, with the judgment of the magistrate thereon for the defendant, was not admissible.</p> <p>3. The verdict is supported by the evidence,</p> <p>{a.) The grounds of error should be distinctly set forth in a petition for certiorari. Where a petitioner for certiorari alleged that the¡ finding of the jury in the county court was contrary to law and evidence, but pointed out no specific point in which the evidence failed, and the presiding judge refused to sanction the same, on exception to this court, the judgment of the court below will not be reversed because the ex parte petition did not show proof of the value of the property for the larceny of which defendant was tried, In 55 Ga., 222, the whole case, including both petition and answer, was before the presiding judge.</p>

<p>Where, pending an application by the wife of a debtor for a homestead and exemption- of personalty, part of the personalty included in the schedule was levied on under a distress warrant sued out by the landlord of the applicant’s husband, and before sale the exemption was granted, the property was not subject to sale. -</p>

<p>1. If a claim bond do not CQnform to the statute, it may be amended. If it be so defective as-not to protect the plaintiff in fi.fa., and no amendment be offered, the claim will be dismissed. In the present case, however, an amendment was offered and made, with the assent of the sureties, and the motion to dismiss was properly overruled.</p> <p>2. The verdict is supported by the evidence.</p>

<p>1. A will contained the following provisions : (After providing for payment of debts) “ I leave to my beloved wife, Beatrice H. Pope, all my property, real and personal, to be managed and used by her as her own, without making appraisements or returns. In case of her marriage again, as it would then be necessary to make provision for our child (or children, should others be born), I desire an equal division to be made of the property between her and such child or children.” Other items provided for the death of a child before becoming of age or marrying, and for a trustee for testator’s daughter :</p> <p>Held, that under such will, the wife of testator took-a half interest in his realty, and his child (there being but one) a half interest, subject to be divided on the contingency of a second marriage of the widow. In default of the happening of that event, the widow took a trust estate for the benefit of herself and child, with broad powers as to its use, and without accountability until the happening of the contingency on which division was to be made.</p> <p>2. Under such a will, the widow mortgaged the real estate in her own name for supplies to conduct farming operations thereon ; the mortgage was forclosed and salé made ; the widow remarried :</p> <p>Held, that the mortgage sale conveyed the interest of the widow, but not that of the child.</p> <p>(a.) The child did not have any equitable claim on the interest of the widow, on account of imprudent management of the rest of the estate, superior to the title of the purchasers under the mortgage fi. fa.</p> <p>3. Where the widow holding such an estate was tenant in common with another, whose share of the land she rented for a stipulated annual rent, the claim for rent was a mere debt, and was not a lien on the interest of the widow in the land, which could take precedence of the purchaser at the mortgage sale.</p>

<p>Where a factor furnishes supplies and provisions to a planter to make a crop, and takes a lien on the growing crop therefor, such advances are in the nature of purchase money or materials furnished for the crop so raised, and the landlord’s debt therefor is superior to the homestead right of the debtor’s wife.</p>

<p>1. The gist of the offense defined by section 4600 of the Code, is the sale of property after mortgage, without the consent of the mortgagee, and with intent to defraud him. The sale is the consummation of the crime, and fixes the venue, under the constitution.</p> <p>(a.) The proof of the venue was doubtful in this case, but may be sufficient.</p> <p>2. A laborer cultivated land under a contract that he should have • one-half of the net profits, after paying for supplies advanced by the landlord and certain expenses, .it being agreed that these should be paid before the laborer could claim anything. Cotton was gathered and delivered to the landlord, who sold it and credited the supply-account of the laborer with one-half the proceeds, they not being sufficient to pay that debt. Previous to the sale, the laborer had given a mortgage on “ all his part of the crop of cotton and corn raised by him on the Martin place.” He was indicted under section 4600 of the Code :</p> <p>Held, that he had no power to make a valid mortgage on anything except his half of the net crop; and, therefore, he sold nothing which he could have mortgaged. 46 Ga., 583.</p> <p>(a.) There was no sufficient evidence of any fraudulent intent in this case.</p> <p>(1.) The statement in the mortgage that the mortgagor was to have one-half of the entire crop, may be a false representation, but cannot affect the case made by the present indictment.</p>

<p>The ordinaries have power to grant licenses to dealers in liquor, whether retailers or sellers of quantities less than one gallon, but ' their discretion in granting or refusing licenses is confined to applications for retail licenses. 15 Ga., 468; Code, §§1419, 1420, 1424 528, 529.</p>

<p>A promissory note made in the following terms : “ Sixty days after date, I promise to pay C. Toler, or order, one hundred and fifty dollars, at either bank in the city of Augusta, Georgia, for one end spring-top buggy, harness, whip and mat, this day delivered to me, upon the distinct understanding that the title was.not to pass to me until paid for in full, and he is authorized to take possession of the same at any time until fully paid for,” was negotiable by indorsement in blank; and one taking under such indorsement could bring suit on the note in his own name. 1 Kelly, 237.</p>

<p>TJackson, Chief Justice, being disqualified, Judge Wtllis, of the Chattahoochee circuit, was appointed to preside in his stead in this case.]</p> <p>Under the law and facts of this case, the chancellor committed no error in granting fue injunction.</p>

Sheriffs. Levy. Amendments. Evidence. Claim. Estoppel. Practice in Supreme Court. Before Judge FORT. Lee Superior Court. November Term, 1882. This record is brief, but somewhat confused.

Practice in Supreme Court. Practice in Superior Cour.t. Vendor and Purchaser. Contracts. Warranty. Charge of Court. Before Judge Hood. Randolph Superior Court. November Adjourned Term, 1882. Baldwin, as transferee of certain notes and a mortgage to secure the same, given by Daniel to one McNair, brought suit on the notes and proceeded to foreclose the mortgage. By agreement the two cases were consolidated. Defendant pleaded the general issue and failure of consideration.

<p>Homestead. Practice in Superior Court. Equity. Estates, Wills. Constitutional Law. Vendor and Purchaser. Liens. Before F. H. COLLEY, Esq., Judge pro hac vice. Wilkes Superior Court. May Adjourned Term, 1882.</p> <p>A house and lot, in the town of Washington, was sold by the sheriff under two ft. fas. against George Palmer; the first in favor of A. Franklin, the second in favor of W. W, Simpson. The money was brought into court and distributed under rule, the following claims therefor being placed in the hands of the sheriff:</p> <p>(1.) The record of a homestead set apart to George Palmer, July 21, 1879.</p> <p>(2.) The record of a supplemental homestead allowed to his wife, Annie M. Palmer, December 22, 1882.</p> <p>(3.) A ft. fa. in favor of A. Franklin, against George Palmer, founded on a judgment rendered in Wilkes county court, May 19, 1879.</p> <p>• (4.) A ft. fa. in favor of W. W. Simpson against George Palmer, founded on a verdict and decree in Wilkes superior court, at the November term, 1879.</p> <p>(5.) A ft. fa. in favor of W. O. Bohler against George Palmer, founded on a judgment rendered in Wilkes county court, February 17, 1879.</p> <p>(6.) A ft. fa. in favor of W. O. Fortson against George Palmer, founded on a judgment rendered in Wilkes county court, December 12, 1881.</p> <p>(7.) A ft. fa. in favor of P. H. Norton against George Palmer founded on a judgment rendered in Wilkes county court, January 9, 1882.</p> <p>On the trial, the evidence in regard to the homestead and supplemental homestead was, in brief, as follows: In 1879, Palmer applied to have a homestead laid off out of the house and lot sold. The petition stated that “ the said house and lot is bound and subject to a debt for the sum of $3,000, to W. W. Simpson for the purchase money, and it is only in said land, subject to said purchase money debt, that your petitioner prays said homestead may be laid off, which interest is worth $1,000. ”</p> <p>The county surveyor returned that said interest was worth $1,000, and on July 21, 1879, the ordinary duly approved the application.</p> <p>Personal property to the amount of $50.00 was, at the same time, set apart. The proceedings show that they were under the constitution of 1877.</p> <p>The petition ol Annie M. Palmer, for a supplemental .homestead, recited as follows : She is the wife of George Palmer, who is-the head of a family, A homestead of $1,050, has already been set apart to her husband, under the constitution of 1877. The only property owned by said George is his house and lot (the same afterwards sold), and this is subject to the following encumbrance : W. W, Simpson has title to one undivided third interest in the same, holding it as security for a debt of $3,000, which said George Palmer owes him ; and Palmer, by said judgment of the ordinary, has had set apart to him $r,ooo in the same as a homestead, said homestead to attach only to the excess of the value of said property over and above $3,000. George Palmer failing and refusing to do so, his wife prays to have $550 set apart as a supplemental homestead, under the constitution of 1877, out of his said interest in the property. The same is town properly, and as $550 worth thereof cannot be set aside by metes and bounds, she prays an order directing that, if said house and lot are sold, the levying officer shall, after deducting the one-third coming to Simpson and the $i,coo already set apart as a homestead in the excess of said property over $3,000, or such part of the $1,000 as such excess shall sell for, pay out of the residue $550.to the ordinary to be invested, etc.</p> <p>W. W. Simpson and the other creditors were duly served, and, at the time and place of hearing, the ordinary passed the following order:</p> <p>“Ordinary’s Office, December 22, 1882.</p> <p>This application of Annie M. Palmer for a supplemental homestead in the property of her husband, George Palmer, is hereby approved ; and it'appearing that since said application was filed the house named therein was sold at sheriff's sale for $3,700 ; and it further appearing that the sheriff had notice of said application, and that the said $3,700 is still undistributed, it is ordered that Jno. J. Crafton, sheriff, pay over to the ordinary the sum of $550 of the $3,700, for which the house and lot sold, said $550 to be invested by some proper person selected by the ordinary in property selected by the applicant. ”</p> <p>The claim of Simpson was supported by the record of a suit which showed, in brief, the following facts: Simpson brought an equitable action against Paimer, on the common law side of Wilkes superior court, on the note set out below. He alleged that the consideration of the note was a legacy left by Miss Mary Ann Pettus, also set out below; that George Palmer elected to take the house and lot in controversy and certain other property, and in order to secure the note which he gave to John T. Palmer, accepted a bond for titles from the latter, conditioned for the conveyance of all said John’s right, title and interest in the house and lot and other property named, upon the payment of the note by said George ; that the note and lien was transferred for value to Simpson ; that George Palmer is insolvent and unable to pay the note without subjecting the property.</p> <p>The note sued on was an ordinary promissory note, payable to John T. Palmer, or bearer, one day after date, with ten per cent, interest for $2,395.0?. On the back of this note was the following endorsement:</p> <p>“I hereby endorse, transfer and assign for a valuable consideration the within note, and also all my rights and interest to secure the same contained in a bond for titles given by me to George Palmer, dated January 1st, 1875, now in possession of George Palmer, and executed to secure the payment of this note.</p> <p>[Signed] Jno. T. Palmer.</p> <p>November 2‡, i8tj. ”</p> <p>The bond for titles given by John T. to George Palmer was conditioned “ to release and convey to him all my right, title and interest in and to the house and lot where said George now resides; together with the horses and carriage, wagons and harness, and all other personal property thereto belonging, my interest in said property being an undivided third interest</p> <p>The will of Miss Pettus, under which the interest of the Palmer brothers accrued, contained the following items;</p> <p>“Item 2d. To my sister, Sarah Palmer, during her life, I give the house and lot, left me by my father, with all my furniture, carriage, horses, etc., (here the house and lot are described.)</p> <p>“Item 3d. At my sister’s death, I desire said property disposed of as follows : After the same has been duly valued by three disinterested appraisers, to be appointed by the ordinary, $2,000 shall be deducted from said valuation for the benefit of .George Palmer, which I hereby give to him in said property, when said George Palmer shall, after paying his brother Stephen one-third of the valuation thus reduced, and his brother John one-third of the valuation thus reduced, be sole owner of the property thus willed in item 2d. ”</p> <p>Under this suit of Simpson vs. George Palmer, the jury found for the plaintiff a specified amount; also “ that said debt is a lien on all the property contained in the third clause of the will of Mary Ann Pettus ; ” that the note and lien had been transferred to Simpson, and that the lot be sold to pay Simpson's claim. On this verdict was entered the following decree : “ Let the above stated finding of the jury be the decree of this court, and it is so ordered. ” A fi. fa. was issued and levied on the lot.</p> <p>A deed was introduced from Stephen R. Palmer to George Palmer, dated June 1st, 1876, which recites that a note had been given to him similar to that given to John T. Palmer, and that it having been paid, said Stephen R. conveyed his undivided one-third interest to said George.</p> <p>The following facts appeared from the admissions of the parties. Mrs. Palmer, the life tenant, died subsequently to January 1st, 1875. The property named in item 2d of the will of Miss Pettus was appraised as follows: The house and lot at $7,400.00, the furniture at $1,785.00, the “wood lot” at$1,125.00. On January 1st, 1875, the wood lot was sold and the proceeds equally divided between George, Stephen and John T. Palmer. Another ft. fa. held by Franklin, issued from the superior court, under which, in part, the sale took place, and which has been ;paid off, was founded on a note containing a valid waiver •of the homestead.</p> <p>The case was submitted to the court without a jury. He ordered $3,045 00 of the fund to be paid to Simpson. The other contestants excepted.</p>

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. The .case between these parties has been twice before this court. It was held, in 61 Ga., 77, that the will of the testator (Lawrence O’Byrne) vested a life estate only in his son (James Jeremiah), with remainder over to the children of the latter; and that, at the birth of his daughter (Mary Louise), the title vested absolutely in her for her own . use and benefit, and to be used or disposed of as she might think proper.</p> <p>(a.) Until the birth of such daughter, the title was held to be in the executors of the testator for ceitain trusts; but that, by her birth> the estate of the ultimate remaindermen was destroyed.</p> <p>2. When this case was here for the first time, the question of the bar of the statute of limitations was not passed on, because not insisted upon.</p> <p>(a.) This court has held that, upon the birth of a child to the son of testator, the trust, or quasi trust, ceased ; the control of the executors terminated, and the remainder in fee vested in such child.</p> <p>(6.) In the case in 64 Ga., 676, it was ruled that the title on which prescription was founded, having been acquired before the birth of a remainderman, such birth did not suspend the prescription. This harmonizes with 61 Ga., 77.</p> <p>3. The second question made by defendant’s bill of exceptions has been twice before this court in this case, and was in both instances ruled adversely to the position now taken by them. The questions then considered as to these parties are^í adjudicata and final. 61 Ga., 77 ; 66 lb., 273.</p> <p>4. Since the adoption of the Code, there has been no statute of limitations in this state in respect to actions to recover realty; nor were such actions included in the limitation act of March 16, 1869.</p> <p>(a.) If the act of 1869 were applicable, the lessor was a minor when her right of action accrued, and so continued to the time of the commencement of this suit; nor does it appear when a guardian was appointed for her. She would not, therefore, be barred.</p> <p>5. Where a tenant for life, as such, makes valuable improvements upon the land during his occupancy, these improvements are not a charge upon the property when it comes to the remainderman. Where improvements of a permanent character are made in good faith by one who has no claim of right to the possession, but is a tenant by sufferance only, the value of such improvements may be allowed to the extent of the rent found to be due for the use of the land, but no further. But where the premises are held bona fide under independent and adverse claims of title, then the party making such improvements is entitled to have their full value allowed him.</p> <p>(a.) Our Code makes a distinction in regard to setting off improvements against mesne profits between one who is bona fide in possession under claim of right, and a mere trespasser. In the latter case, mesne profits are not to be reduced below the sum which the premises would have been worth without such improvements ; in the former case no limit is fixed.</p> <p>6. A defendant in ejectment may claim compensation for improvements made by his predecessor in the title, under whom he holds by warranty deed, as fully as such warrantor could have done.</p> <p>7. A defendant in ejectment cannot be compelled to pay an enhanced amount as rent in consequence of his own improvements.</p> <p>(a.) Whether a defendant in ejectment may have a verdict for the excess in value of improvements over rents, which shall constitute a lien on land to the extent of such excess,:is not decided, as not being made by the pleadings, or passed upon by the court below.</p> <p>8. The verdict was right under the evidence.</p> <p>9. The testimony of Wyly was properly admitted. He was not a party to the record; and had he been, he was competent to testify to matters not transpiring between himself and deceased.</p>

<p>1. Where a draft was not negotiable or payable at any chartered bank, notice of non-payment was not necessary to charge the drawers or endorsers thereof. . - .</p> <p>(a.) Especially is this the case where the draft waived protest by its terms, which included a waiver of notice.</p> <p>2. Endorsers of a draft to a suit thereon pleaded that, at and before the maturity of the draft, they paid to the acceptors funds to meet it, but the acceptors failed and the- funds were lost, and that the plaintiffs failed to demand payment and never gave notice to defendants of non-payment, until after the acceptors failed, and thereupon by the failure to-demand payment and give notice, defendants were damaged the amount of the draft, thereby discharging them:</p> <p>Held, that the plea is to be construed most strongly against the pleader. Therefore the damage being predicated jointly on a failure to make demand and give notice, and the defendants not being entitled to notice, under the facts of the case, there was no error in striking the plea.</p>

Railroads. Damages. Negligence. Non-Suit. Actions. Before Judge Fain. Whitfield Superior Court. October Term, 1882. To the report contained in the decision, it is only necessary to add, that the testimony on behalf of the plaintiff showed, in brief, the following facts: On the evening of January 6, 1882, plaintiff went to the ticket office of defendant at Dalton to purchase a ticket to Tilton, a station on the road above Dalton.

Guardian and Ward. Title. Minors. Powers, Before Judge HlLLYER. Fulton Superior Court. April •Term, 1882.

<p>Ordinary. Contracts. Criminal Law. License. Before Judge MERSHON. Appling Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

Certiorari. Homestead. Debtor and Creditor. Before Judge Brown. Cobb Superior Court. March Term, 1882. A ft. fa. for $25.00 in favor of White & Stone was levied upon certain property which had been set apart to Mrs. Boroughs as a homestead, the plaintiffs making the ordinary affidavit for that purpose. A counter-affidavit was filed by defendant.