Volume 70 — Georgia Reports

<p>[This case was argued at the last term, and the decision reserved. Judge Bran-ham, of the Rome circuit, presided in the place of Jackson, Chief Justice, who was disqualified.]</p> <p>1. That portion of the Southwestern Railroad extending from Macon to Fort Gaines, known as the main line, and also the section from Fort Yalley to Columbus, which may he considered as a part of the main line by reason of its purchase under the act of March 4, 1856, and its consolidation with that road in 1868, except that portion of the line between Americus and Smithville (which is part of the old Georgia and Florida Railroad) is subject to a tax of one-half of one per cent, on its net annual income, and not to the ad valorem tax imposed on the property of the citizens of the state under general laws. That portion of the road which lies between Americus and Albany, and which became a part of -the Southwestern Railroadby purchase, under the act of 1859 (p.229); that portion known as the Arlington branch, extending from Albany to Arlington and recently built to Blakely; that portion known as the Cuthbert branch, extending from Cuthbert junction (one and a half miles from Cuthbert) to Eufaula, is subject to the ad valorem tax.</p> <p>2. The negotiations between the two successive attorneys general and the attorney of the company in this case amounted to nothing more than the valuation by them of that portion of the road lying between Americus and Albany, conceded to be subject to the ad valorem tax, and an agreement to pay tax thereon.. If its effect were to release the company from ad valorem, tax on the Arlington and Eufaula branches of the road, as well as to release it from further taxation on the Americus and Albany section for those years, it would be a mistake which might be corrected.</p> <p>(a.) This was not an attempt to compromise a debt due the state at less than the amount due, nor at a less rate of taxation than that due, nor to release the company from the ad valorem tax charged by the act of 1874 on the Arlington and Eufaula branches. "Were it otherwise, the attorney general had no power to make any such contract or compromise, or to release the company from any part of the ad valorem tax imposed.</p> <p>(6.) Nor would the governor have power to make any such contract or release; he could not do more than suspend the collection of the tax until the meeting of the next general assembly.</p> <p>8. After executions for taxes had been issued against this company by the comptroller general, contested, carried to the Supreme Court of the United States, and two-thirds or more of the company’s road and property had been relieved from the ad valorem tax, the company ought to have made a new or revised return. Having failed to do so, the comptroller general was authorized to correct the original returns and to assess that portion of the road and property subject to the tax from the best information he could procure, and order the ii. fas. to proceed for so much of the tax as was then due and unpaid. Had he done so, it would have been the act of the state.</p> <p>(a.) But in this case the comptroller general did not, either personally or by ratifying the assessment of another, assess the property, as claimed by defendant. When the fact of agency is to be proved by the subsequent ratification and the adoption of the act by the principal, there must be evidence of previous knowledge on the part of the principal of all the material facts. If the material facts be either suppressed or unknown, the ratification is invalid.'</p> <p>(6.) Whether the comptroller general could, under anj’’circumstances, delegate the power-conferred on him by law, or ratify in an informal way the act of another in such a matter. Quiere.</p> <p>4. If an unauthorized entry of settlement was placed upon fi. fas., and they were placed by the clerk among the settled papers in his office, a petition to vacate such entry was a proper remedy.</p> <p>5. Fi.fas. having been issued by the comptroller general under the act of 1874, and being before the court on issues involving payment and satisfaction, and the valuation of certain branches; with a conditional tender of a balance1 which might be due,- the whole case was before the-court-and-jury; and the latter were authorized,-under the charge, to assess the value of the property; and they were not limited to a mere determination of the question whether the company was liable to pay the tax, leaving the assessment to the comptroller general or assessors.</p> <p>-(a.) If - §§839 and 840 of the Code apply at all to retúrns made to the comptroller general, there was no separate return of those portions of the road subject to the tax at an undervaluation. ,</p> <p>‘(6.) Assessments of corporate property for tax accruing after the act of 1877 and that of 1878 — Code, §§826 (d), 833 (a) — -are subject to the provisions thereof; but these cases having arisen before the passage of those acts, are not subject to the objections of the dissenting opinion in 62 Ga., 501.</p> <p>-6. While, in submitting the issues to the jury, it might have been an inappropriate form of expression for the judge to charge, “now there are these two propositions that are before you, one of the state «claiming taxes, and one of a road that is trying to keep from paying -the taxes” ; still, taken in connection with the balance of the charge on this subject, the jury could not have. misunderstood the questions submitted to them.</p> <p>..<«.) Two theories were submitted: first, that the state claimed that, in fixing the value of the section and branches of the road subject '■to tax, the jury should value the same in connection with and as a ’part of the whole road, according to the value of the whole line, • estimating the value thereof according to the number of miles, by ■the pro rata of a single mile; second, that the company claimed that the section and branches should be valued at their separate, intrinsic, isolated value, apart from the connection of the main road:</p> <p>Meld, that this rule, in connection with the balance of the charge, is more favorable to the company than that recognized in 92 II. S., 605. In such cases, any rule is uncertain and unsatisfactory. No one given rule can with legal certainty be adopted; but the rule or rules submitted to the jury should let in all the evidence and every view of the subject that would shed light upon it.</p> <p>’7. The verdict of the jury is supported by the evidence.</p> <p>(a.) The rule adopted by the jury is not fixed as an absolute rule for the future assessment of this property. It must be assessed at all times as the property of other people at its actual market value, and future returns are subject to the Code, §§826 (d.), 833 (a.)</p> <p>•-8. Taxes are not debts in the ordinary sense of the word, so as to bear interest as liquidated demands. They are not contracts, either express or implied; they cannot be collected by suit at law in the absence of express statutory provision,' and'they are not the' subject-matter of set-off. Our system for enforcing the-payment ox taxes is by penalties, and not by interest.</p> <p>(a.) Where the circumstances raise an implied contract, or where-there is an express contract to pay, the rule would be different; such as defaulters having in their hands public money, persons at whose instance or for whose benefit tax jft. fas. have been taken up- and docketed, under Code §891 (a), and in cases of vexatious or unfounded litigation against the rights of the state. Such facts do> not appear in this case, and the court was right in requiring interest to be written off from the verdict.</p> <p>(&.) The taxes found to be due bear interest from the date of the verdict.</p> <p>9. The record is indefinite as to the payment of a pro rata part of the-income tax in 1874. If such payment was made, credit should be-allowed for it.</p> <p>10. There was no error in the remaining grounds of the motion for new trial.</p> <p>11. Directions given to the court below.</p>

Title. Prescription. Husband and Wife. Wills. Easements. Damages. Estates. Before Judge Lawson. Richmond Superior Court. April Term, 1882. Plaintiffs, the Montgomerys, brought case against the Trustees of the Masonic Hall for damages done to a wall of the plaintiffs.

<p>Debtor and Creditor.' Contracts. Statute of Frauds. Before Henry Morgan, Esq., Judge pro hac 'vice. Dougherty Superior Court. October Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. Where facts are charged to be within the knowledge of the defendant, or where, from all the circumstances, such knowledge is necessarily presumed, and he either fails to answer altogether or makes an evasive answer, the charge will be taken as true.</p> <p>2. Equity will set aside the judgment of a court having jurisdiction only where the party had a good defense, of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part. But if such causes be shown, equity will annul a conveyance obtained by fraud, or will relieve against a judg^. ment obtained by imposition.</p> <p>(a.) Suppression of a fact material to be known, and which the party is under an obligation to communicate, from the existence of confidential relations, or from the particular circumstances of the case, constitutes fraud.</p> <p>3. A wife cannot bind her separate estate by any contract of surety-ship, nor by any assumption of the debts of her husband, and sales made by her in extinguishment of her husband’s debts are absolutely void.</p> <p>(a.) There is enough in this case to require an investigation before a court and jury, and the grant of an injunction was proper.</p>

<p>1. Where the same person was both executor and testamentary trustee-under a will, but the title to certain property therein devised was, placed in him as trustee, in a suit to recover, realty so left, a demise in the name of the executor was not available.</p> <p>(a.) The will in this case construed.</p> <p>2. Where property was held in trust for testator’s daughter during her life, the trustees being required to leave her in possession and permit her to enjoy the entire rents, issues and profits for her own use and support, and after her death to apply the entire income to the support of her children named in the will, or such of them as might survive her, so long as each of them lived, with contingent remainder to the children of the grandchildren of testator, until the interest of the successive cestuis que vie were fully satisfied, the contingency had not happened upon which the title could pass to-these children of grandchildren, and no recovery could be had on a. demise in their names.</p> <p>3. The sale of such trust property with the consent of testator’s daughter and her children, and under order of the chancellor, vested, a perfect title in the purchaser.</p> <p>(a.) The purchaser, having bought bona fide and for a valuable consideration, will be protected, although subsequent events may disclose that the sale and re-investment were mistakes of judgment.. Courts of law and equity have gone far to protect such purchasers,., even when they held under doubtful or irregular sales, or defective, or incorrect judgments of courts having jurisdiction of the sub.'ectmatter.</p> <p>4. It was not necessary for such of the contingent remaindermen (children of testator’s grandchildren) as were in life at the time, to have been made parties to the proceeding to obtain a judgment allowing, the sale, nor is the sale rendered invalid because this was not done. In such cases, not only the holder of the first estate should be before the court, but also the intermediate remaindermen for life should be parties. But when the person who is to take the remainder is not ascertained and the remainder is contingent, it is sufficient to have before the court the trustees to support the contingent remainder, and the persons in esse having title to the vested estates.</p> <p>(a.) This case is distinguished from the case of the City Council of Augusta vs. Radcliffe, 66 Ca., 469. In that case a power of sale was given upon certain terms, which were not complied with, and. the title did not pass.</p>

Corporations. Estoppel. Damages. Easements. Verdict. Evidence. Admissions. Principal and Agent. Notice. Practice in Supreme Court. Waiver. Held: before the one in Washington City. The stock was divided between Somes, Loomis and myself, and issued to us. The-subsequent parties, Graham, Perry & Free, Betz and Davidson, all derived their interest and authority from us. The present complainant is a continuation of the company which met in Washington City, as I have stated.

New Trial. Damages. Practice • in Superior Court. Yerdict, Before Judge Tompkins. Bryan Superior Court. May Term, 1882. To the report contained in the decision it is necessary to add only that Harper and wife brought suit against the Savannah, Florida and Western Railway to recover damages for a personal injury to the latter, alleged to have been caused by the negligent running of a train on said railway. On the trial, the jury found for the plaintiffs •$6,000.00.

<p>Year’s Support. Judgments. Notice. Before Judge Brown. Fannin Superior Court. October Term, 1882.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Practice in Superior Court. Jury. Evidence. Before Judge Stewart. Spalding Superior Court. February Adjourned Term, 1882.</p> <p>Alfred B. Doyal was indicted for the murder of M. A. Hancock. On the trial, the evidence for the.state was, in brief, as follows:</p> <p>Hancock was a policeman in the city of Griffin. Between him and Doyal hostile feelings had existed for sometime before the homicide. A week before that occurrence,. Hancock had arrested and imprisoned Doyal on the charge of being drunk on the streets. Doyal felt much aggrieved at his treatment, and after being released, complained thereof, and on several occasions threatened that he would kill Hancock. On April 23, 1881, Hancock was standing, on the street. He was not at the time on duty as a policeman, nor did he have on his uniform, nor had he the usual weapons that he carried while on duty. Doyal stepped up to him and said that he was ready to settle “ this matter. ” Hancock responded, “ Alf, that’s all right. ” Doyal had one hand in his pocket and was gesticulating with the other. He said, “ God damn you, I will make it all right, ” and fired upon Hancock. The latter placed his. hands upon his bowels and said, “ Alf, you have killed me. ” The answer was, “ God damn you, you can have it again, ” and Doyal fired a second time. Hancock turned and went to a drug store near by, and as he entered he said to the druggist, “ Doctor, I am shot. Pray for me. ”■ He was laid upon the floor where he died in a few minutes.. After firing the second shot, Doyal crossed the street waving his pistol and saying that he would kill the nest man who came on, or making -use of some similar expression. Some one said, “ Alf, you had better run; ” and one Johnson, who was in the street in front of Doyal,. motioned with a stick. Thereupon Doyal began to run, and a crowd began to pursue him. After running some-distance he stopped, and when the sheriff came up, under order of the latter, he put down the pistol and surrendered himself. He stated that he had four shots yet left in his pistol, and he could kill a man with each one of them, but he did not want to kill anybody but his enemies. Some one? stated that Hancock was thought to be dead. Doyal said,, “ I hope he is. If he is not, I would like to finish it; also, that he had said he would kill Hancock before Saturday or Sunday night, and he thought he had done it; that he would be willing to hang if he could get another man;, that he did not shoot to miss, but knew where he aimed; that he could be blindfolded and go in the dark and put his finger in the bullet hole where he intended to hit when, he aimed and shot; that the second shot did not miss, but -went either through Hancock’s coat or his coat sleeve.. No weapons were found on the person of the deceased. Before the homicide some one told Hancock of the threats-•which Doyal had made concerning him, and a fellow policeman advised him to be careful. He replied that he did not desire any advice, and that if Doyal fooled with him he would kill him. Shortly before the homicide, Doyal obtained from a bar-room near the scene of its occurrence a pistol which he had frequently borrowed before, and two- or three minutes before the shooting, as he passed down the street, he was heard to use the words, w I will get-him. ”</p> <p>The evidence on behalf of the defendant was,.in brief,, as follows: Hancock was a dangerous man. When drinking he was violent and turbulent, but when sober was-peaceable. His feelings towards Doyal had been for some time very hostile. A week previous to the shooting, he-had locked Doyal in the calaboose, and three or four days-before, upon Doyal’s speaking to him, he .had cursed and abused him, and stated that he would kill him if he(Doyal) spoke to him again. Just before the killing and near the scene thereof, Doyal had a conversation with one or two people. Just after he left, Hancock came down and asked what Doyal was talking about. The person addressed replied that it was about a well. Hancock responded, “ You know well, he was talking about me. ” While he was standing there, Doyal came out of a saloon, and started across the street. Hancock called him and went towards him. He said that Doyal must take back something that he had said; that he (Hancock) was not then on duty, and it would be man and man. Doyal declined to retract, and started away, Hancock following and ■saying that it had to be settled. Doyal made some response, and then stopping told Hancock to let him alone. The latter insisted upon a retraction of what had been said, and Doyal declined. Hancock dropped his hand under his coat on or near his hip pocket. Doyal stepped back ■one or two paces and drew his pistol, Hancock advancing ■about the same distance. Doyal fired the first shot, and Hancock placed his hands upon his stomach. Doyal then fired the second shot and Hancock turned and went towards the drug store. Johnson, the person who the state’s -evidence indicated had motioned with a stick to Doyal, denied that he did so, but said that he was much excited and might have waved the stick in the air; that he had taken three drinks, but was not drunk. The city council ■of Griffin appropriated $200.00 to pay counsel fees in the prosecution of the case. Four days before the difficulty, Hancock had a pistol oiled at a shop. He stated that he was going to kill some damned rascal, and that the shopkeeper would hear what would happen pretty soon.</p> <p>There was much other testimony in relation to the character of Hancock and tending to impeach witnesses, which is not material here.</p> <p>The statement of defendant detailed the circumstances stated in the evidence on his behalf; denied making any threats; asserted the violent character of Hancock, and that insults and wrong had been done by him to defendant; that he obtained the pistol from the bar-room for a gentleman who wished to borrow it; that the difficulty happened substantially as stated in the evidence on his behalf; that Hancock was advancing with his hand upon his pocket when defendant fired, and that upon Hancock’s ceasing to advance, defendant turned his pistol so as not to strike him with the second shot; that he was excited, and when the ■crowd came towards him in the alley, he started off, but ■stopped and voluntarily surrendered himself.</p> <p>The jury found the defendant guilty. He moved for a new trial on various grounds, all of which are sufficiently -stated in the divisions of the decision where they are discussed, except the following:</p> <p>(10), (11.) Because the court refused to allow defendant’s counsel to prove specific acts of violence, cruelty or turbulence of deceased, in order to illustrate his character; and because the court, on objection of counsel for the state, refused to allow defendant’s counsel to recite these acts in the presence of the jury.</p> <p>(18.) Because Wyley Patrick, the father of the mayor <of Griffin (who took an active part in the prosecution) went into the room where the jury were, and talked with ■one of the jurors apart from his fellows. [The affidavits produced on the hearing showed that on the first day the ■court adjourned before the jury was completed. The .jurors who had been selected were left in the court room. .Patrick came into the court room and inquired if court had adjourned. Receiving no answer, he sat down on a bench some thirty feet from the jury. He then went up to one of the jurors and asked, “ How are our women getting on ?” He was then informed that he must leave the room, and did so, stating that he did not know that it was any harm to come in. He was intoxicated at the time. The verdict was in no way affected by his presence.]</p> <p>(19), (20.) Because of newly discovered evidencec [The •object of the newly discovered evidence was to impeach witnesses on the trial, and two of the newly discovered witnesses were desired to testify to a conversation between the defendant, themselves and another. Defendant knew that they were present, but did not know what their testimony would be until after the trial.]</p> <p>(22.) Because the jury were allowed to separate after "the case had been submitted to them. [It appeared from the affidavits introduced, that tlie jury were carried to a saloon in the city to obtain their meals while the case was-, in progress. The saloon was divided into stalls, which, were separated by plank partitions, but they did not reach to the ceiling, and the fronts of the stalls were open. The-jury occupied two adjoining stalls, and a bailiif sat at a, part of them where he could see into both. The front door of the-restaurant was closed, and no one was allowed to enter except the waiters, and they did not enter the-stalls.]</p> <p>The motion was overruled, and the defendant excepted..</p>

Deeds. Trusts. Estates. Before H. K. McOay, Esq.,. Judge pro Jiao vice. Fulton County. At Chambers. June. 6,1882.

Constitutional Law. Damages. Railroads. Actions. Injunction. Before Judge Roney. McDuffie County. At ‘ Chambers. March 9, 1883.

<p>1. Where a petition for year’s support was a necessary part of the-evidence in a case, and on the trial amotion was made to continue-the case in order that a copy of the petition might be established,, the original being lost, and no reason for delaying to establish such copy was shown, the motion was properly overruled.</p> <p>(a.) Nor was it the duty of the judge to suspend the case and sign a. rule nisi to establish the paper because the ordinary was disqualified from acting by reason of being counsel in the case. Had the-rule nisi been signed, it would not have required a continuance or-accounted for the delay in preparing the case for trial.</p> <p>(6.) The defendant cannot complain that he was allowed to prove by parol, if he could, the contents of the lost paper.</p> <p>2. When ejectment was brought against the grantee of a deeds and his warrantor, though not nominally a party, employed counsel to defend the case and placed in his hands a deed to be used in the-litigation, such paper was legally in the custody and under the-power and control of the warrantor, and its production was properly required under & subpoena duces tecum served on him.</p> <p>3. If it were error to admita deed in this case because it was neither-stamped nor recorded, such error did no harm, because the deed' was subsequently withdrawn by the party introducing it from the-consideration of the jury. Besides, both parties claimed under it it was drawn from the custody of defendant’s counsel, was a link in defendant’s chain of title, and was. not, in fact, -essential to-plaintiff’s claim.</p> <p>4. Complaint is made of the rejection from evidence of a power of attorney, upon objection by counsel, without stating what the objection was. It is incumbent upon the plaintiff in error to show affirmatively the error complained of, or it will not be considered by this court. Upon looking into the record, however, a good reason appears for rejecting the evidence.</p> <p>5. A mere general statement that the court overruled an objection to* certain testimony, without stating what the objection was, furnishes, no ground for a reversal.</p> <p>6. Where land has been properly set apart as a year’s support for »• widow and her minor children, a sale thereof fairly made by the widow for the purpose of obtaining means to support the family,, would pass the title to the purchaser, irrespective of any order of the ordinary; and it is at least questionable whether the ordinary has jurisdiction to order such a sale. Therefore, a request to charge to the effect that the order of the ordinary appointing appraisers to set aside a year’s support was their authority to act,, and that this, coupled with an order to sell the property so set apart, raised a conclusive presumption that the ordinary had observed all previous requisitions of law as to setting apart the year’s1 support, and that this precluded the plaintiff from going behind' the order to sell and attacking the previous proceedings, was properly refused.</p> <p>(a.) Besides, this request was based on a partial view of the testimony, and excluded from the consideration of the jury the important issue, whether or not the order for sale was fairly obtained.</p> <p>7. The charge of >the court fully and fairly submitted to the jury whether or not the essential provisions of law for obtaining a year’s, support had been complied with; and a careful inspection of this record shows that not one of these requirements was fully or substantially followed in this proceeding.</p> <p>8. The verdict is not contrary to law, evidence or equity.</p> <p>9. Suit having been brought for land by nine co-plaintiffs, and a verdict having been returned in favor of some of them, no point having been made in the court below, or in the bill of exceptions, that the verdict was for one share too many, it cannot be raised here for the first time.</p> <p>(a.) A verdict may be amended so as to make it conform to the declaration whenever the error plainly appears upon the face of the-record; or, if a part be legal and a part illegal, the court will construe it and order an amendment by entering a remitter as to that part which is illegal, and giving judgment for the balance, to avoid, a protraction of contests. Yerdicts must have a reasonable construction and intendment, and are not to be avoided except from, necessity.</p>

<p>[This ease was brought forward fr,om the last term, under §4271 (a) of the Code.]</p> <p>1. A husband cannot use his wife’s separate money to pay his own debts, and if his creditor knowingly receives her separate funds for her husband’s debt, she can recover the amount so paid. If the fund has been invested in realty by the husband’s creditor, the husband being insolvent, the land is subject to her claim, and sh e may enforce a lien thereon in a court of equity.</p> <p>2. If a witness answers interrogatories propounded to him by the commissioners, clearly and distinctly, and to the same purport that he has previously informed complainant’s counsel that he would answer, and afterwards makes an afidavit for defendant that he was mistaken; or did not mean so to testify, a new trial will not be rendered necessary thereby.</p> <p>3. Where it was sought by the wife to recover from a creditor of her husband, who had knowingly received her funds in payment of his debt, the amount so received with interest thereon, and to subject land in which such funds had been invested by the creditor, it was a proper subject of equitable set-off against her claim, that the husband held a bond for titles from the creditor to the land in controversy, which was worth much more than the amount of the wife’s fund invested therein; that the husband was insolvent and unable to support her, and that she actually subsisted on the rents, issues and profits of the land. Contrast 61 Ga., 662, which was an action of law.</p> <p>(a.) While primarily the duty of maintaining the wife rests upon the ■ husband, yet where he was insolvent and unable to do so, an application of her separate fund for her separate use, in purchasing food and clothing, would be held in equity to be a payment pro tanto; and if the money so applied to her use, arose from land tho title to which was in the creditor of the husband, upon a bill by her to recover from such creditor and subject the land, on the ground that the creditor had knowingly received her funds in payment of her husband’s debt and had invested them in the land, the creditor would be subrogated to the defence of payment by the husband, and could, in a court of equity, set off the money so applied for her benefit</p> <p>(6.) The amount of such set-off would include only what was spent • for the separate use of the wife, not including the support of the children; and it would he for the jury to determine how much of the amount so applied arose from the land and how much from, labor, as to which the creditor had no right of subrogation.</p> <p>4. In case of recovery by the wife, it is only the land into which her money entered, on which she can claim a special lien. The other property of the defendant would be bound by her general decree against him from its date, as in case of an ordinary judgment.</p>

Practice in Supreme Court. Parties. Before Judge-Brown. Milton Superior Court. August Term, 1882. A money rule was tried in Milton Superior Court. Webb,, sheriff, had raised a fund by the sale of the property of' one Rogers. Craig ruled him, and others having judgments against Rogers became parties and claimed the fund,, viz: Medlock, Palmer, Rogers, Silvey, Bell and Brown,. Baugh, Sloan, Strickland and his wife, Taylor, and W. E. Simmons, attorney.

<p>Municipal Corporations. Montezuma. Nuisance. Laws.. Injunction. Before Judge . Fort. Macon County. At Chambers, January 16,1883.</p> <p>Reported in the decision.</p>

<p>'The evidence in this case was conflicting, hut there was enough to show misfeasance on the part of the city or its agents in constructing the bridge where the accident occurred, and neglecting to keep it in repair; and the presiding judge having approved the finding, this court will not interfere..</p> <p>e(a.) In an action against a municipal corporation for damages resulting from the breaking of a plank in a bridge in one of its streets, the ground of the action is either positive misfeasance on the part of the corporation, its officers or servants, or of others under its authority, in doing acts which caused the street to be out of repair, or else neglect by the corporation to put‘the street in repair, or remove, obstructions therefrom, or remedy causes of danger occasioned by the wrongful acts of others. In the former case, no further notice to the corporation of the condition of the street is essential to its liability. In the latter case notice of the condition of the street, or what is equivalent to notice, is necessary.</p>

<p>Title. Administrators and Executors. Before Judge Wellborn. Lumpkin Superior Court. April Term, 1882.</p> <p>To tbe report contained in the decision, it is necessary to add only the following: The action was complaint for land. ' The plaintiff showed a chain of title from the state to him. One link in this chain was an administrator’s deed, made by Jarrell Beasely, administrator of R. C. Beasely, to William P. Beasely. With this deed, was introduced a certified copy of the order of the court of ordinary granting to Jarrell Beasely, as administrator, leave to sell the real estate of the decedent. The court charged that this would be only color of title, without the production of the letters of administration. The jury found for the plaintiff. Defendants moved for a new trial, on the .ground, among others, that the verdict was contrary to the ■charge. The court granted the new trial, stating in his ■order that he was, not satisfied that there was sufficient evidence to make out. title by prescription in plaintiff. Plaintiff excepted. .</p>

Equity. Specific Performance. Contracts. Principal and Agent. Statute of Frauds. Auctioneers. Before Judge Snead. Chatham Superior Court. March Term» 1882. Mrs. Jackens filed her, bill against Nicolson, alleging, in brief, as follows: In April, 1881, she placed in the hands of Blum, a regular auctioneer in Savannah, a city lot with improvements thereon for sale.

<p>Husband and Wife, Debtor and Creditor. • Before. Judge Lawson. Greene Superior Court. September Term* 1.882.</p> <p>Reported in the decision.</p>

Contracts. Statute of Frauds. New Trial. Consideration. Before Judge Snead. Richmond Superior Court. October Term, 1881. Z. Daniel & Company, as transferees for value, brought suit against R. Tarver and R. G. Tarver on a note made by them to Miller & Daniel and indorsed by the latter. Defendants filed the following pleas: (1.) The general issue.

Railroads. Damages. Negligence. Torts. Minors. Infants. Trespassers. Before Judge Snead. Burke Superior Oourt. November Term, 1881. Jefferson Brinson, a minor, represented by his father and next friend, James Brinson, brought his action for damages against the Central Railroad.

<p>Non-suit. Negligence. Damages. Master and Servant. Before Judge ITillyer. Fulton Superior Court. April Term, 1882.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. Diligence. Before Judge Fain. Gordon Superior Court. August Term, 1882.</p> <p>Mrs. King brought suit for damages against the Western and Atlantic Railroad for killing a horse and destroying a buggy. The case originated in a justice’s court, but was carried to the superior court by appeal. On the trial, the plaintiff contended that the train of the defendant had run against the horse and buggy at a road crossing, killing the horse and demolishing the buggy. The defendant contended that the horse had become fr'g'itened and ran away, and that the train happening to be passing the road crossing at the time, the horse ran into it without fault on the part of the defendant. There was conflicting evidence as to speed of the train, etc., not necessary to set out in detail. The jury found for the plaintiff. Defendant moved for a new trial on various grounds, the only material ones being set out in the decision. The court overruled the motion, and defendant excepted.</p>

Criminal Law. Practice in Superior Court. Charge of Court. Evidence. Jurors. Witness. Before Judge Hood. Terrell Superior Court. May Term, 1882. Durham was indicted for murder, and on the trial was convicted, with a recommendation to mercy. He moved for a new trial, which was refused, and he excepted. The substantial facts disclosed by the testimony are set out in the tenth division of the decision. For the other facts see the decision.

<p>1. Where a debtor agrees with his creditors that he will pay them a certain per cent, of his liabilities, in consideration that they are to discharge him from his debts, if he privately agrees to give one a better or further security or to pay one more than the others, the contract with the other creditors is void.</p> <p>2. If a debtor misrepresents or suppresses any material fact in the statement of his affairs, either as to the amount of his property or the amount of his indebtedness, the composition agreement is void.</p> <p>3. At common law, the misrepresentation of a material fact made by one of the parties to a contract, though made by mistake and innocently, if acted on by the opposite party, constitutes legal fraud.</p> <p>ia.) Where a contract of composition was made in Tennessee, if nothing appears to the contrary, the presumption is that the rules of the common law prevail there, and they should be given in charge. It was, therefore, error in this case to charge that the debtor must know his representations to be false, in order to avoid the settlement made.</p>

<p>Until a gift of land by a father to his son was completed, a judgment against the donor would bind the land and prevent the subsequent completion of the gift. This case is governed by that in 59 6a., 136, where it -was held that the lien of this judgment attached to the land prior to the consummation of the title.</p> <p>(a.) The son was not a bona fide purchaser for value, and besides, he claimed to have been in possession when the judgment was obtained. The rule as to four years’ possession by a bona fide purchaser did not, therefore, apply.</p>

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. Where a defendant in a criminal case, who had been convicted of a misdemeanor and sentenced to pay a specified fine or serve ninety days in the chain gang, procured two other parties to give their promissory note in satisfaction thereof; and such note was accepted by the solicitor general as the equivalent of cash, the consideration was not illegal, and in a suit thereon a plea to that effect was properly stri cken.</p> <p>2. Appeals from a justice court to the superior court should be tried by a jury, and a judgment by the court would have been illegal, had the case not been submitted to the judge by consent.</p> <p>3. The amount for which judgment should have been rendered is a simple matter of calculation. If it should appear from the pleadings and proof to have been rendered for too much, the judge is authorized to require the excess to be written off therefrom.</p>

<p>Debtor and Creditor. Insolvency. Equity. Injunction and Receiver. Liens. Before Judge Willis.</p> <p>Reported in the decision.</p>

<p>Equity. Injunction. Landlord and Tenant. Consti- • •tutional Law. Before Judge Hammond. Fulton county. At Chambers. January 20, 1883.</p> <p>Eeported in the decision.</p>

<p>Injunction and Receiver. Debtor and Creditor. Insolvency. Before Judge Clarke. Randolph County. At Chambers. January 6,1883.</p> <p>Reported in the decision.</p>

Equity. Fraud. Contracts. _Before Judge Hillyer. Fulton County. At Chambers. April 28, 1882.

<p>1. In 1858 and 1859 free persons of color were not permitted to buy or own real estate in the city of Augusta, nor could they acquire a beneficial interest therein; and, therefore, a free person of color who then sought to purchase real estate, paid part of the purchase money, and took receipts stating that the payments were so made, acquired neither absolute title nor color of title, and could pass none to his heirs at his death.</p> <p>2. Were this otherwise, the wife having received a deed in her own name after the death of the husband, and, after holding possession for a number of years, having sold to a bona fide purchaser without notice, he would acquire a good title as against the children of the decedent, who claimed under him by inheritance.</p> <p>(a.) After one has sold realty to a bona fide purchaser without notice, that subsequently a suit is brought against the vendor for the recovery of such property will not affect the prior vendee, under the doctrine of Us pendens; nor would such action adversely affect a purchaser from such vendee, although such purchaser might have been chargeable with notice of the pending suit.</p>

<p>A note became due November 1st, 1874; the maker died July 21,1875 an administrator qualified May 3, and died September 1st, 1880; an administrator de bonis non qualified May 2, 1881; suit was. brought January 24, 1882:</p> <p>Held, that the suit was barred by the statute of limitations. The-statute was not suspended on account of the death of the debtor and the non-representation of his estate, except for the twelve months during which his administrator was exempt from suit.</p> <p>(a.) Section 2829 of the Code cannot be invoked by a creditor whose debtor dies, in order to prevent the statute of limitations from running. That section provides for the suspension of the statute for five years when the plaintiff dies, and his estate is unrepresented ; but does not suspend the statute in favor of one who holds, a claim against such estate.</p>

<p>1. An execution issued under a decree in equity and specified the property to be sold. It was trust property, and after the levy thereon by the sheriff, a bill was filed on behalf of the beneficiaries, alleging that there was a reversion after the termination of the life estates, and praying an injunction to restrain the sale under the fi. fa. until this reversionary interest should he declared and protected. The injunction was refused; but, with the consent of the opposing side, the chancellor required the sale of the property to be reported to him by the sheriff for confirmation, before making a deed thereto. Notice of this requirement was given at the sale; and the purchaser bought with such notice:</p> <p>Held, that the chancellor had power to require die sale to be reported to him for confirmation, and nothing vested in the purchaser until the sale was confirmed. Therefore, the purchaser cannot complain of a refusal by the chancellor to confirm the sale because of inadequacy of price. Nor have the beneficiaries of the trust any right to complain, because it was at their instance and for their protection that the order was so framed, when the fi. fa. was ordered to proceed.</p> <p>2. The refusal of an injunction not being an error on the matters of law, and no abuse of discretion on the matters of fact appearing, this court will not reverse the decision of the chancellor.</p>

Debtor and Creditor. Insolvency. Injunction and Receiver. Trusts. Equity. Fraud. Before Judge Bran-ham. Floyd County. At Chambers. January 4, 1883. Morris & Company and other creditors of Cohen & Company filed their bill against the debtors, and M. A. Nevin and Z. Zacharias, as assignees of such debtors, and certain preferred creditors under the deed of assignment so made.

<p>[After this ease was argued, but before the decision was announced, Crawford, J., died, and Blandford, J., was elected to succeed him.]</p> <p>Í. The plea of the general issue having been filed at the first term, to a suit on two promissory notes, pleas that both notes were given for the same consideration, the last being given on the representation that the first was lost, failure of consideration, minority and coverture, may be added by way of amendment.</p> <p>2. A promissory note payable to order, which stated that it was given for a buggy and harness, “ upon the distinct understanding that the title was not to pass ” until paid for in full, was negotiable.</p> <p>(a.) In the hands of a bona fide holder for value before due and without notice, no defences could be set up to a suit thereon, except non est factum, gambling or immoral and illegal consideration, or fraud in its procurement.</p> <p>(b.) A promissory note given for a buggy andharness, being absolute on its face, a reservation therein of title by the payee until full payment was not sufficient to put an endorsee for value, before due, on notice of any defence by the maker.</p> <p>3. The plea of infancy goes to the capacity to contract, and a bona fide holder before due and without notice is not protected therefrom.</p> <p>(a.) A buggy not being an article of necessity to an infant, no recovery could be had against him on a note given therefor.</p> <p>(6.) Were it otherwise, could he be made to pay its value to any one but him with whom lie contracted? Quxre.</p> <p>(c.) That a minor is employed as a clerk, is not such a business as would render him responsible for his contracts under section 2733 of the Code. Were this not.so, no connection is shown between the purchase of a buggy and the business of clerking.</p> <p>4. By the common law a married woman could not make,a note at all; nor could she ratify it during coverture, or afterwards, except on a new consideration.</p> <p>(a.) In this state the wife is a feme sole as to her own property, and may contract, except to bind her sej>arate estate by any contract of suretyship, or to assume the debt of her husband, orto pay the same by any sale of her separate estate to his creditor.</p> <p>(b.) While a married woman cannot legally become a security for another’s debt, yet where she has signed a negotiable note with another, as a joint maker, for the purpose of securing the debt of the latter, and it has been transferred to a bona fide purchaser for value before due and without notice, it is valid, and binds her.</p>

<p>1. Bills in equity, except in cases of injunctions to stay pending proceedings, must be filed in the county of the residence of one of the defendants, against whom a substantial relief is prayed.</p> <p>■(a.) In cases of collusion between one holding land which equitably belongs to an estate and the administrator, on account of which the latter refuses to sue, heirs and creditors may sue in their own names; but this right of action exists in' the same manner and to the same extent only as it does in the administrator. The refusal of the administrator will not suffice to change the venue.</p> <p>2. Where one, for the purpose of defrauding creditors, entered into an agreement with another to have his property transferred to such other person, with an agreement that' the latter should reconvey to him after litigation should have terminated and the amount paid should he refunded, equity will not aid such debtor to recover the property; nor have his heirs any higher right, after his death, than he would have had in his lifetime.</p>

Wills. Witness. Equity. Injunction. Before Judge Simmons. Bibb County. At Chambers. January 9,1883.

<p>Criminal Law. New Trial. Before Judge Harris. Meriwether Superior Court. August Term, 1882.</p> <p>Reported in the decision.</p>

<p>Corporations. Actions. Contracts. Before Judge Tompkins. Chatham Superior Court. June Term, 1882.</p> <p>Reported in the decision.</p>

<p>Continuance. Evidence. Wills. Title. Ejectment. Estates. Mesne Profits. Set-off. Before Judge Harris. Campbell Superior Court. August Term, 1882.</p> <p>West et al. brought complaint for land against George and Hosea Peters. The declaration alleged that plaintiffs •claimed as children of Charles J. West, under the will of their grandfather, Allen West (the minors being represented by a guardian). The land was described as being •“ fifty acres off of the southeast corner of lot of land number 192, and seventeen and one-half acres off the northeast corner of lot of land number 193, containing in all, •sixty-seven and one-half acres, more or less, situate, lying and being in the 9th district of originally Fayette, now Campbell county.” During the progress of the case Hosea Peters filed a disclaimer of title, and the case proceeded against George Peters alone.</p> <p>On the trial, the evidence showed, in brief, as follows :. Allen West owned and died in possession of the land. He left a will by which he devised it to his wife for life, or while she should live upon it, with remainder to the heirs of testator’s son, Charles J. West. After his death, Mrs. West applied for and obtained dower in the land, and occupied it as such. She sold it to George Peters, who took possession of it. She died in 1878, and since her death this suit has been brought. The land spoken of above was located in land lots 192 and 193. It was not in the 9th land district of Campbell county, but in the 13th land district. It was, however, located in a militia district which was called “the old 9th’.’ of Fayette, that having been the number of the militia district. There was some other conflicting evidence on the subject of mesne profits, etc., not material here.</p> <p>Defendant moved for a non-suit because of a variance between the description in the declaration and in the testimony. The motion was overruled.</p> <p>The jury found for the plaintiffs the premises and $400.00 as mesne profits. Defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the court refused to grant a continuance, on motion of defendant, because of the absence of Hosea Peters. [The showing was as follows :</p> <p>Defendant stated that Hosea Peters lived in the county, had been subpoenaed, was not absent by his leave or procurement ; that he expected to get his evidence at the next term of the court; that the showing was not made for delay. That he expected to show by Hosea Peters that the land was poor, without fences to protect it against the stock; that it was washed into gullies; some of it rocky: that it was not, in its condition, worth anything for rent; that the land was planted in cotton in 1879, and made nothing clear of expenses; that the tenants on the land were run off, that they were shot at; that some parties went to the house, and shot .at and into the house, and ran the tenants off; that one of the tenants was found dead on the place, and the land could not be rented at that time; the fences did not protect the land; the stock broke in, and nothing could be made; thatinl880 oats were sown, and the stock ate them up. That Hosea Peters is sick and unable to attend court; he is afflicted; was. shot during the war of 1861 through the lungs and chest, and he suffers a great deal at times ; he has spells, sometimes as far apart as three weeks, generally oftener; he was well and in town last week. That witness' was not at the last term of the court; was sick then, and the case was continued on account of his absence; that he-had come to the three previous terms of the court, and that defendant was absent then, and the case continued on account of the sickness pf defendant. That defendant has'been sick for seven or eight years; that he has been blind ; his health is better now. Hosea Peters had been well enough to go to court a week before court came on, and for some little time before.</p> <p>Thomas W. Latham, Esq., stated that Hosea Peters, a week before court, was at his office and was in his usual good health, and that there was no necessity for taking interrogatories.</p> <p>Peters swore that he had no other witness to those points, and that he could not safely go to trial without Hosea Peters.</p> <p>(2.) Because the court admitted in evidence the will of Allen West, defendant’s counsel objecting thereto, on the-ground that one of the attesting witnesses had signed his name with a mark, and had never sworn to his mark, but the probate had been made and the will recorded on the proof of the other two.</p> <p>(3.) Because the court admitted in evidence the dower proceedings on behalf of Mrs. West. — The objection was that the order appointing commissioners was not signed by the judge, and that one commissioner who acted was Aaron Godwin, while the commissioner named in the order was Edwin Godwin.</p> <p>(4.) Because the court refused a continuance, after plaintiffs had amended their declaration so as to change the-name of one of them from Minnie West to Winnie West.</p> <p>(5.) Because the court' refused a non-suit, as stated above.</p> <p>(6.) Because the court allowed testimony to show that the land was located in what was known as the old 9th militia district.</p> <p>(7.) Because the court charged as follows: “ It is insisted by defendant that the proof must show that the land lies in the 9th land district of originally Fayette county. The declaration does not charge that it lies in the 9th land district, but only in the 9th district of originally Fayette county. If you believe from the evidence that the land described in the writ is the land that is sued for, and is the same land as is described in the declaration, and that the land lies in what was known or called the 9th district of originally Fayette, even though it be the 9th militia district, then, so far as this question is concerned, you may find for plaintiff's.”</p> <p>(8.) Because the court rejected evidence offered to show the value of clearing of land done by defendant during the lifetime of the life tenant.</p> <p>(9.) Because of the admission of other testimony, the grounds of objection not being stated.</p> <p>(10.) Because the verdict is contrary to law and evidence.</p> <p>The motion was overruled, and defendant excepted.</p>

Res adjudicatei. Attorney and Client. Administrators, and Executors. Interest. Practice in Supreme Court. New Trial. Before Judge Fain. Bartow Superior Court. July Term, 1882. Conyers, administrator de bonis non of the estate of Felton, ruled Gray, as an attorney, for certain moneys alleged to have been collected by him on notes placed in his hands, by Sumner, a former administrator of Felton’s estate. The rule showed a written demand on Gray.

<p>[This ease was brought forward from the last term, under §4271 (a) of the Code.]</p> <p>1. A bill in equity to enjoin a trespass upon realty by felling timber, is not such a suit respecting the title to land as must be brought in the county where the land lies. The proper venue of such a case is the county of the residence of a defendant against whom substantial relief is prayed.</p> <p>(a.) If the court in which a case is brought, has no jurisdiction to try the same, it will be dismissed whenever the court is apprised of such fact.</p> <p>2. A demurrer to a bill in equity upon the ground that there is an ample common law remedy, must be filed at the first term.</p> <p>(a.) Where an agreement was made to consider a general demurrer for want of equity as having been filed at the first term, it not having been in fact so filed, such general demurrer will not be considered as raising the question whether an ample remedy exists at law.</p> <p>(6.) A bill having been demurred to and an amendment made in regard to material matters, the original demurrer does not relate forward and cover both bill and amendment.</p> <p>3. A court of equity, having proper possession of the case, may grant relief, not only by staying waste or trespass to the freehold for the future, but also by giving damages for the past; and that, whether the case be founded upon privity of title or not.</p> <p>(a.) To give equity jurisdiction, the injury must be irreparable in damages or the trespasser be insolvent, or other circumstances (such as the avoidance of circuity and multiplicity of actions) must exist, rendering the interposition of a court of equity necessary. If the 'trespass or waste be so destructive of the estate or of some vital necessity to the enjoyment thereof, and so ruinous as not to be capable of actual measurement in money, equity will interfere.</p> <p>(&.) Where a farm of ninety acres contained but seventeen acres of wooded land, the preservation of which was essential for the proper use of the farm, as well as for use as a building site for the owner’s residence, for which a portion of it had been prepared, many of the trees being large and of ancient growth, a destruction of such trees by a naked trespasser, without title or claim of right, leaving the owner without wood, shade or proper building site, would give ground for equitable relief.</p>

<p>1. When this case was here before, it was held that, where a suit was brought in Georgia on a judgment recovered in Tennessee after the defendant had been adjudicated a bankrupt, but before his final discharge, though no plea of bankruptcy was filed or stay of proceedings asked, still the discharge in bankruptcy was a good defence to the suit in Georgia, the foreign judgment not constituting a new debt, but only a security for an old debt.</p> <p>2. The effect of the grant of a new trial by this court is to require the case to he heard de novo, unless some specific direction be given in regard thereto; and, on the subsequent trial, new facts may he shown, making a different case, and other principles of the law may control and apply to these new facts.</p> <p>3. Where, pending a suit in Tennessee, the defendant pleaded that he had been adjudicated a bankrupt and prayed a stay of proceedings, but subsequently withdrew the plea and confessed judgment, such conduct amounted to a new promise to pay and an agreement that the judgment should hind him, and precluded him, in a subsequent suit on the judgment, from making any defence which arose prior to the confession, including the defence of bankruptcy. Under such facts, the plea of bankruptcy would not avail as a defence to the suit in Georgia.</p> <p>(a.) The character of the debt on which the suit was brought not appearing, the presumption arises that the debt was one from which the defendant knew that he could not be discharged under the bankrupt act, or that it was one so binding on his conscience as an honest and moral man, that if he acquired means, he would pay it.</p> <p>(&.) A solemn admission in judicio is an estoppel everywhere and forever; and the facts stated amount to such an admission.</p>

<p>Actions. Contracts. Torts. Damages. Verdict. New Trial. Before Judge Harden. City Court of Savannah. November Term, 1882.</p> <p>Brauss brought suit against the City and Suburban Railway of Savannah. His declaration contained two counts, the first of which alleged, in brief, as follows :</p> <p>The defendant was a common carrier for hire, of passengers by street cars, in the city of Savannah. Plaintiff entered one of defendant’s cars on Anderson street and became a passenger, and the defendant received the usual and customary fare, and became bound to convey plaintiff from Anderson street along Abercorn street to Liberty street, and then to give to plaintiff a transfer ticket, by virtue of which another of defendant’s cars would carry him from Liberty street to his place of residence. Defendant’s agent, however, neglected and refused to give plaintiff a transfer ticket, and upon receiving his fare, informed him that such fare would entitle him to ride to his destination; and thereupon, at Liberty street, the conductor of the first car stopped the Liberty street car and personally transferred plaintiff thereto, placing him under the charge, care and protection of the conductor of the second car. But the latter subsequently demanded payment of fare or the production of a transfer ticket from plaintiff, and upon plaintiff’s failure to comply with the demand, ejected him in the middle of the street, requiring him to get off in the mud; and the defendant broke its contract of carriage with him. The car was crowded with passengers, and plaintiff was mortified, disgraced and damaged by such expulsion. Plaintiff complained to the company of his treatment, and was willing to come to a settlement of his damages, but the latter refused to pay him anything, and thereby became liable to him for counsel fees for stubborn and litigious conduct.</p> <p>The second count alleged substantially the same facts, and in addition alleged that no transfer ticket was necessary at the junction of Abercorn and Liberty streets.</p> <p>The evidence for the plaintiff was, in brief, as follows: On Sunday afternoon, April 30, 1882, he and his wife boarded defendant’s car at the junction of Anderson and Abercorn streets. He had purchased some street car tickets two days before, and had three of them left. He inquired of the conductor whether these tickets would be sufficient to carry him to his destination. The latter said that they would. He thereupon gave a ticket for himself and one for his wife, and informed the conductor that he desired to be transferred at Liberty street to the car which would carry him to his home. On reaching Liberty street, the conductor of the car in which plaintiff was, hailed the conductor of the Liberty street car, and informed him that he had a transfer. The latter stopped, and plaintiff and his wife entered the Liberty street car. After it had started, the conductor called upon plaintiff for his fare. Plaintiff claimed that he had been transferred, but the conductor insisted that he must have either a ticket or a fare. Plaintiff had no money in his pocket at the time, and declined to pay. The conductor stopped the car in the middle of the block, and plaintiff and his wife were compelled to get out in the mud and walk home. The conductor’s manner was “ very short.” There were about thirty people in the car, and he was much ashamed and wounded in his feelings when required to leave. On Monday morning following, he met the president of the company, and complained to him, telling him that he wanted satisfaction. The president responded that he would see the superintendent. Plaintiff said he wanted satisfaction. The president said he could give him none. If the necessary apologies and reprimands had been made, there would have been no suit. Plaintiff did not know of the requirement of a transfer ticket at the point where the transfer was made. At another junction on defendant’s line, he had been transferred without a ticket, and transfers were so made at that place. On the succeeding day, a witness, to test the point, rode over the same track, arid was transferred without a ticket.</p> <p>The evidence for the defendant was,4n-brief, as follows: The Abercorn street car was what is knriwn ás a “bob-tailed” car, in which passengers deposit their fares in the box, and the driver or conductor is not allowed to receive them. The driver on this car sometimes acted- as conductor on other. cars, and woujd then receive fare. There was a junction on defendant’s line, where passengers were personally transferred from one car to another, but the Abercorn and Liberty street cars did not ordinarily connect with each other, and transfer tickets were required, and notice to this effect was published. The-conductors were furnished, with transfer tickets, and required to furnish them to passengers, upon application therefor. No direct application was made for transfer tickets by the .plaintiff, nor did the conductor of the Abercorn street car remember the conversation detailed by plaintiff. The Liberty street, car happened to be behind its usual time, and the two cars met. The conductor of the Liberty street car heard some one hail him, and on stopping, plaintiff and his wife boarded the car. It was his duty to require transfer tickets or money from passengers for the payment of fares. Plaintiff declined to furnish either, saying that he had been transferred from Abercorn street. The conductor could not, under the rules of the company, accept such a statement from a passenger in lieu of fare, and he was compelled to require plaintiff and his wife to leave the car. Plaintiff said he was near home and it made no difference. There was no ill-will toward plaintiff on the part of the conductor. He did not consider it his duty to put them off 1 at a crossing, but stopped the car where he did because he was near the curve of a switch, and the rule was not to stop on a curve. The president denied any discourtesy to plaintiff, but said that he could not reprimand drivers without investigation, as frequent attempts were made to e\mde the payment of fare, and upon investigation thereof, he became satisfied that the conductors had acted properly. The jury found the following verdict:</p> <p>“We, the jury, find for the plaintiff the amount of his attorney’s fees and costs of court, as established by the practice of this court, and further find for plaintiff in the sum of fifty dollars ($50) as damages.”</p> <p>Defendant moved for a new trial on the following grounds:</p> <p>(1.) Because the presiding judge allowed the said plaintiff, against the objection of defendant, to testify as to his feelings when required to leave the Liberty street car of defendant, upon the failure and refusal of plaintiff to produce a ticket or pay his fare, it appearing from the evidence that any wound to plaintiff’s feelings was caused by his own conduct in so refusing.</p> <p>(2.) Because the judge, at the conclusion of plaintiff’s evidence, and of the evidence produced on his behalf, refused, on motion of defendant, to non-suit said plaintiff and dismiss said case, it appearing from said evidence and the petition filed, that said complaint was for an alleged wrong done by defendant’s violation of its contract; that said case as presented was a case arising on contract; that no actual pecuniary loss or damage was proved, and that the only damage claimed was exemplary damage for alleged injury to plaintiff’s feelings.</p> <p>(3.) Because the judge erroneously charged the jury as follows: “ If the conductor of defendant’s car said or did anything which misled the plaintiff into going upon the other car of defendant without a proper ticket or transfer, it was the company’s fault; and while plaintiff was ejectedby the subsequent conductor, having the right to do so, the company would be responsible for the acts of both conductors ; the company would be responsible, although the conductor of the second car acted right.”</p> <p>(4.) Because the general charge given to the jury was erroneous.</p> <p>(5.) Because the judge erroneously charged the jury in the language of sections 3066 and 3067 of the Code of Georgia, and in connection therewith charged as follows: “ That is to say, unless there be aggravating circumstances, you cannot give any except actual damages, but if there be aggravating circumstances you may give such damages as, in your opinion, would deter the wrong-doer from repeating the wrong, or would be sufficient to compensate the plaintiff for his wounded feelings; and in such case, that is, where there are aggravating circumstances, either in the act or the intention, it is not necessary to prove any special amount of damage; but whether damages should be allowed or not, and if allowed, how much, are exclusively matters for the determination QÍ the jury.”</p> <p>(6.) Because the judge refused, though requested by the defendant in writing, to give the following charges to the jury. . '' '</p> <p>(a.) “ Exemplary damages can never be allowed in cases arising on contract.”</p> <p>(b.) “If the jury find that the plaintiff, Mr. Brauss, got on the Liberty street car of the defendant; that the conductor, in accordance with the rule and custom of the company, demanded his fare or a ticket; that plaintiff failed and refused to pay such fare or produce such ticket; that the rule of the company required the conductor to collect such fare or ticket or to eject the party so refusing from the car, and that the conductor did obey said rule and require the plaintiff to leave said car, then I charge you that the plaintiff is not entitled to recover any damage for such ejection from the said car, in obedience to said rule of said company.”</p> <p>(c.) “While a corporation may be liable for the torts of its agents in the prosecution and within the scope of its business, it cannot be made liable for such torts, unless the agent himself would be liable; that is, the defendant in this case cannot be made liable for the tortious act of its conductors, Nix and Finney, or either of them, unless they themselves would be individually liable.”</p> <p>(d.) “A railroad corporation, when sued for a tort, is not liable to exemplary or vindictive damages unless the officer or agent of the company by or through whom the tort was committed would, if sued, be personally liable to such exemplary or vindictive damages. If, therefore, the jury believe, under the evidence, that Finney, the conductor or agent of the defendant, would not be personally liable, if sued for exemplary or vindictive damages, then the defendant would not be liable for such damages.”</p> <p>(7.) Because the judge erred in giving to the jury, at the request of the plaintiff, the following charges in behalf of said plaintiff:</p> <p>(a.) “ There is a difference between vindictive and compensatory damages. Vindictive are intended as a punishment upon the wrong-doer, and are inflicted upon the wrong-doer for the purpose of correction or example, to deter the same party or others from the. perpetration of a similar wrong in the future. Such vindictive damages are added to the actual compensatory damages. But compensatory damages are allowed to the complaining party as his right, and are intended to make him whole, irrespective of the motive of the wrong-doer, or even of the good faith of the wrong-doer. Even good motives on the part of the wrong-doer, and an honest belief that he is doing what is right and lawful, cannot lessen the damages which the law allows as compensatory, though such honest belief and good motives would generally prevent the imposition of vindictive damages in addition to compensatory damages.”</p> <p>(i.) “ If the jury find from the evidence that the feelings of plaintiff were wrongfully wounded, and that there were aggravating circumstances in the act or intention, such wounded feelings can be compensated, if the jury find from the evidence in favor of Brauss, even though neither of the conductors bore any malice to Brauss or intended to do any wrong, and only acted in the performance of what they believed to be their ‘duty; now mark this, gentlemen: if they performed what they thought to be their duty in an improper and aggravating manner.”</p> <p>(o.) “ The plaintiff, Brauss, in order to recover compensatory damages for wounded feelings, need not prove any amount or swear to any amount, though he must prove that he is entitled to that class of damages. The enlightened conscience of the jury is the guide the law prescribes in such cases. The jury can give such damages as the circumstances of each case require, if such circumstances, in their opinion, require any damages at all.”</p> <p>(S.) Because the verdict is contrary to the law and the evidence.</p> <p>(9.) Because the jury undertook to find attorneys’ fees, though instructed by the court that they could not find attorneys’ fees unless they were proved to be due by the evidence, and no evidence whatever having been introduced on the subject of attorneys’ fees.</p> <p>(10.) Because said verdict is uncertain and illegal, and no legal judgment can be entered up thereon.</p> <p>The motion was overruled, and defendant excepted.</p>

Attorney and Client. Judgments. Debtor and Creditor. Before Judge Fain. Bartow county. At Chambers. October 24,1882. Price filed his bill against White as plaintiff in fi. fa., Johnson as his attorney, and Franklin, the sheriff, for the purpose of enjoining a fi. fa. in favor of White, usee, against Hood, Johnson, complainant and others, from proceeding to subject the property of complainant.

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>Where, on the call of a criminal case, it was brought to the knowledge of this court, by affidavit and admission of counsel, that the defendant had escaped and had not been captured Or surrendered, and where no surrender or capture was shown prior to the conclusion of the term of this court, the case must be dismissed.</p>

Husband and Wife. Principal and Agent. Debtor and Creditor. Practice in Supreme Court. Before Judge Willis. Chattahoochee Superior Court. September Term, 1882. Watt & Walker brought suit against J. W. Miller and his wife, Sallie E. Miller, on an open account for groceries,. etc. Defendants pleaded the general-issue. At the trial, plaintiffs amended their declaration by striking the name of J. W. Miller and leaving the suit'to stand against Sallie E. alone.

<p>1. Where a verdict on an appeal case in a justice’s court was rendered October 12th, 1880, and a petition for certiorari was filed on January 12th, 1881, it was not in time, and was properly dismissed.</p> <p>2. It is from the verdict of the jury in appeal cases in a justice’s court that a certiorari may be taken, not from the judgment which the justice may enter thereon. Therefore, the certiorari must be allowed and brought within three months from the date of the verdict; and it is not sufficient that it is within three months from the entry of the judgment by the justice.</p>

Constitutional Law. Judges. ' Courts. Before Judge Harris. Hall county. At Chambers: January 27,-1883. Carlton J. Wellborn filed his petition for leave to file an information in the nature of a quo warranto against John B. Estes. The. petition alleged, in brief, as follows: ,On August 8,1881, the legislature passed an act creating the Northeastern Judicial Circuit. On August 11, Well-born was regularly elected judge of the circuit, and was commissioned on the following day.

<p>[This fiase was brought forward from the last term, uuder §4271 (a) of the Code ]</p> <p>1. Laches of counsel in perfecting service of a bill of exceptions confers no right upon his client to have a second bilk</p> <p>(a.) The law allows but ten days for service of a bill of exceptions, and makes no difference on account of the fact that some of the defendants in error reside in other counties than that of the venue of the suit. Non-residence of parties and absence of counsel from home are provided for by allowing service on counsel by leaving a copy at his house. No excuse is made for not so serving in this case.</p> <p>2. This court will always reluctantly issue a mandamus nisi to the judge of the superior court, requiring him to show cause why he should not sign and certify a second bill of exceptions in the case and on the same points as the first. It will never do so, unless diligence be shown in respect to the first, and the case is exceptional by reason of providential intervention, or some other reason equally strong.</p>

<p>Roads and Bridges. County Matters. Habeas Corpus. Before Judge Stewart. Spalding Superior Court. August Term, 1882.</p> <p>Reported in the decision.</p>

<p>Jurisdiction. Extradition. Judgment. Before Judge Hansell. Brooks Superior Court. November Term, 1882.</p> <p>Reported in the decision.</p>

<p>Actions. Us pendens. Debtor and Creditor. Receivers. Before Judge Clark. City Court of Atlanta. December Term, 1881.</p> <p>Reported in. the decision.</p>

<p>Partition. Charge of Court. Before Judge Pottle. Oglethorpe Superior Court. April Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. When a guardian takes the funds of his ward and puts the same into the business of a partnership, of which he is a member, or deposits them with the said partners, to be used in their business, or being so deposited, the funds are used with their consent, and the guardian dies, leaving such funds among the partnership assets, and the surviving partner, with notice thereof, takes the same into his own hands and continues business as surviving partner of the firm, and, becoming insolvent, makes an assignment of all the assets he has, including the trust funds of the ward in his hands, a bill seeking to recover the same is not without equity; especially when not only the firm,but also the securities on the guardian’s bond, are insolvent. Nor does the right of garnishment furnish such a complete and adequate remedy at law as to oust a court of equity of its jurisdiction.</p> <p>(a.) The assignee of the surviving partner took only such title as the assignor had, and that encumbered with all the equities existing between the complainant and the assignor. In this bill it is claimed that trust funds of the complainant went into the partnership business, and were there at the death of one partner, with the knowledge of the other; and the books of the partnership carried notice in themselves ()of this liability; if not full notice, certainly enough to put the assignee on inquiry.</p> <p>(6.) After the dissolution of a partnership, the power of the partners is limited. A partnership having been dissolved by the death of one partner, the survivor had no power to renew or continue an existing liability or to change its dignity or nature. The deceased partner having been a guardian, upon his death, the law fixed a lien on all his estate of higher dignity than any claim by the creditors, for money due by him as guardian to his ward, ana such claim would take precedence of other debts.</p> <p>2. Prior to the act of 1876, the issues made by the pleadings in an equity case were all tried and passed upon by the jury, but their finding was summed up in a general verdict. Since that act, upon request of counsel, made before the beginning of the introduction of evidence, special issues may be submitted, and a verdict rendered, finding on each separately. In such a case, the presiding judge, when charging the jury, shall inform them what issues of fact are made by the pleadings; hut he is not required to do this before the argument of counsel has begun.</p> <p>3. There was no error in rejecting evidence to the effect that the deceased guardian was one of the commissioners to build the courthouse in Lee county in 1871-2, and that he kept the accounts of the commissioners on the books of one Stokes, for whom he was an employe.</p> <p>4. The verdict was supported by the evidence, and the decree was correct.</p> <p>(a.) Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and should not be avoided unless from necessity.</p>

<p>Municipal Corporations. Officers. Police. Criminal Law. Before Judge Hillyer. Fulton Superior Court. April Term, 1882.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. At February Term, 1883.</p> <p>The bill of exceptions in this case contains, in brief, the following allegations: At the May Term, 1882, of Glynn superior court, there came on for trial, before Judge Tompkins, the case of Hallett, Seaver & Burbank vs. Blain & Harris, and D. T. Dunn, garnishee, being a certiorari from a justice’s court, which had been remanded from the Supreme Court, with instructions to call into court certain notes from the hands of the garnishee for sale. Upon the return of the remitter, an order was taken calling on the garnishee to bring the notes into court to be sold to pay the judgment of Hallett, Seaver & Burbank vs. Blain & Harris ; remainder to be held subject to the order of court. The respondent answered that, pending the certiorari, suits .were instituted, against Blain & Harris in the county court, judgments were recovered, garnishments were issued, and the respondent was required, under order, to bring the notes into court for sale. He also alleged in his answer that full notice was given of the former answer in the justice court in answering the garnishments in the county court, and that notice of said garnishment, proceedings in the county court were given- to Hallett, Seaver & Burbank. To this answer Hallett, Seaver and Burbank filed a traverse, denying notice of the garnishment proceedings in the county court, or that the judgments in that court were the earliest in point of date. On the argument of this case, it was impossible to find the answer and traverse, “ but the points made on the traverse were waived, and the case argued upon the presumption that the judgments in county court were younger than those in the case of Hallett, Seaver & Burbank, and that Hallett, Seaver & Burbank had no notice of proceedings in county court.” The court asked wdiether Dunn had answered in the county court that he had been garnished in another court; being unable to find the papers, counsel stated that his recollection was that Dunn did not so answer in the county court. But the answer has since been found, and shows this to have been a mistake. It was admitted by counsel for both sides that the notes were sold by order of the county court, and could not therefore be produced in the superior court. The court rendered judgment in favor of the plaintiffs (copying it in full), and the garnishee excepted. Here ends the bill of exceptions.</p> <p>The certificate of the presiding judge stated that the bill of exceptions was true " and together with the record in said cause, contains all the evidence material,” etc. At the conclusion of the certificate appears the following: “ I further certify and attach the subjoined letter dated 11th of July, 1882, and marked “ A,” and written by Messrs. Goodyear & Kay, as part of the record and bill of exceptions, as showing what was before the court when the judgment was rendered in May last.” (Signed by the judge.)</p> <p>Following this is a letter marked “A”, directed to Judge Tompkins and signed “ Goodyear, Harris & Kay, attorneys for D. T. Dunn, by Goodyear & Kay.” This letter states that the writers forward to the judge the bill of exceptions “ which does not conform to the agreed statement of facts upon which the case was decided in the portion marked with pencil lines, for the following reasons,” etc. The letter then proceeds to recite the occurrences of the trial, and claims the right to use the answer of Dunn, since found, and concerning which the error in statement of counsel was made on the hearing.</p> <p>The judgment excepted to, which is contained in the record and copied in the bill of exceptions, states that “ upon agreed statement of facts in the above stated case, judgment is rendered,” etc.</p> <p>There was also an agreement of counsel contained in the record that the record “ shall consist of the remitter from the Supreme Court, of date May 9th, 1877, the order calling D. T. Dunn to bring notes into court or to show cause to the contrary, the answer of D. T. Dunn thereto, the traverse to said answer, and the judgment of the court, of date May 23,1882, thereon.” And the record was sent up to the Supreme Court accordingly.</p> <p>On the call of the case, counsel for defendant in error moved to dismiss the writ of error for the following reasons :</p> <p>(1.) Because the record and bill of exceptions show that there was an agreed statement of facts, which is not in the bill of exceptions.</p> <p>(2.) Because, if the letter attached to the bill of exceptions is properly before the court, it contradicts the bill of exceptions, but shows that there was an agreed statement of facts, which was nowhere set out; and an ex parte statement of what was done at the hearing could not take the place of the agreed statement on which the judgment was based.</p> <p>(3.) Because the certificate of the presiding judge referred to the record to supplement the bill of exceptions as to evidence; but the record contained no evidence, and was itself curtailed and limited by agreement of counsel.</p> <p>The motion was sustained.</p>

<p>Constables. Officers. Levy and Sale. Contempt. Attachment. Judgments. Before Judge Hillyer. Fulton Superior Court. September Term, 1882.</p> <p>Reported in the decision.</p>

<p>[Two justices presiding ]</p> <p>1. There was no error in overruling the motion to dismiss this ease.</p> <p>(a.) The cases of Daly vs. Stoddard, 66 Ga., 145, and McDonald vs. Eagle and Phenix Manufacturing Company, 67 lb., 761, were decided after this case was before the court on a former occasion, (64 Ga., 365); no question as to the necessity of criminal negligence in a co-employé was then made, and the doctrine of res adjudicata does not apply.</p> <p>(b.) This court has held, by a full bench, that, to entitle the widow of a servant to recover against the principal for the homicide of her husband resulting from the negligence of a fellow-servant, it must appear that the homicide amounted to a crime in such neglectful servant, either murder or manslaughter of some grade. The law in respect to the liability of railroad companies and druggists rests on other grounds.</p> <p>Hall, J., not concurring in the principle of the last head-note.</p> <p>(c.) An adjudication by a full bench cannot be modified or reversed where only two members of the court preside. Where a principle has been settled by a unanimous judgment of a full court, and afterwards the reverse of it is laid down by a like unanimous judgment of a full bench, without any application for review or reference to the first judgment, no opinion is intimated as to which would bind the court.</p> <p>2. Taken alone, the charge complained of might have been imperfect, for want of fullness, but in connection with its context, the charge was full and in accordance with the former rulings of this court.</p> <p>3. A verdict for damages will not be set aside for excessiveness unless the amount found be so excessive as to authorize a suspicion that it was the result of bias or prejudice, or to justify the inference of gross mistake.</p> <p>Jacicson, C. J., concurred specially.</p>

<p>Promissory Notes. Statute of Limitations. Before Judge Harris. Coweta Superior Court-. September Term, 1882.</p> <p>Reported in the decision.</p>

New Trial. Practice in Superior Court. Attorneys. Rules of Court. Before Judge Pottle. Elbert Superior Court. September Term, 1882. Arnold brought complaint for land against Mrs. Hall. Other defendants were added by amendment. Plaintiff recovered a verdict. Defendants moved for a new trial, because the verdict was 'contrary to law, evidence and the charge of the court. This occurred in Elbert superior court, at the September term, 1882.

Mortgage. Amendment. Practice in Superior Court. Judge Stewart. Upson Superior Court. July Term, 1882. Garland foreclosed a chattel mortgage against Dawson. A fi.fa. was issued by the clerk of the superior court, and levied on the property. Dawson filed a counter-affidavit, alleging that he had not had his day in court, and pleading failure of consideration. When the case was called for trial, plaintiff tendered in evidence the affidavit foreclosing the mortgage.

Hotels. Inns. Bailments. Negligence. Charge of Court. Presumptions. Practice in Supreme Court. Before Judge Simmons. Bibb Superior Court. April Term, 1882. Head brought suit against Stewart & Powell, hotel keepers, to recover the value of a valise, alleged to have been lost by defendants’ negligence. On the trial, plaintiff testified as follows: Was a guest of the Lanier House last fall.

Attorney and Client. Guardian and Ward. Principal and. Surety. Debtor and Creditor. Banks. Trusts. Public Policy. Before Judge • Clark. City Court of Atlanta. June Term, 1882.

Railroads. Corporations. Leases. Contracts. Darn-ages. Negligence. Before Judge Simmons. Talbot Superior Court. September Term, 1882, In addition to the report contained in the decision, it is only necessary to state that the motion for new trial contained five grounds.

Res adjudieaia. Decrees. Vendor and Purchaser. Former recovery. Before Judge Fain. Catoosa Superior Court. August Term, 1882. . Oppar L. Allen and Lula J. Hightower (minor children of Mrs. Martha J. Allen, deceased) filed their bill, by next friend, against B. W. Allen and J. R. Cravens, alleging, in brief, as follows: On October 20th, 1877, their mother made a trust deed conveying to defendant, Allen, in trust for them, certain land in Catoosa county.

<p>Title. Equity. Notice. Before Judge Pottle. Hart Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>The only effect that the legislation of congress has upon the title to property reserved as a homestead, is to prevent its passing to the assignee in bankruptcy, and thus to withdraw it from the jurisdiction of the bankrupt court, leaving it where it was before the proceedings in bankruptcy were commenced, and depriving that court of the power of administering it as a part of the estate of the bankrupt. The title does not vest for the use of his family until the state law has been complied with. Therefore, an exemption in bankruptcy is subject to a debt contracted by the debtor after his discharge. ’ ' r</p> <p>(a.) In the case in 65 (?«., 624, the levy was made for a debt contracted since the passage of the homestead act, but which existed before the commencement of the bankruptcy proceedings.</p>

Auditors. Parties. Res adjudicata. Practice in Superior Court. Bonds. Officers. Contracts. Principal and Surety. Estoppel. Before Judge Branham. Gordon Superior Court. August Term, 1882.

Fraud. Vendor and Purchaser. Evidence. Assignments. Amendment. Before Judge Eve. City Court of Richmond County. October Term, 1882. On March 13, 1882, Zeigler Brothers brought trover in the city court of Richmond county against Wright, as assignee of Whittendale, to recover certain goods.

Practice in Superior Court. Costs. Practice in Supreme Court. Before Judge Snead. Richmond Superior Court. April Term, 1882. Baker brought ejectment against the Summerville Macadamized, etc., Road Company, and recovered a verdict for certain described lands. The defendant brought the case to the Supreme Court' where a reversal was granted on terms (February Term, 1882).

<p>1. The propriety of making Burwell Gardner a .party defendant to the ejectment case, for fees in which this suit was brought, is not apparent, under the facts in the record.</p> <p>. 2. It is the duty of counsel for plaintiff in error to present to the presiding judge for his certificate a true bill of exceptions. Where the presiding judge refused to sign a bill of exceptions, on the ground that it “did not contain all the necessary facts and was not truly stated,” but failed to state specifically his objections thereto in writing, and after a hearing under order of the judge, and the suggestion of corrections by defendant in error, no further action was taken for four months, during which time the term of this court to which the bill of exceptions would have been returnable had convened, without any effort on the part of the plaintiff in error to compel the signing and certifying of the bill of exceptions, the case would be dismissed on motion — although the judge certifies that he was sick much of the time after the hearing in regard to the corrections until he finally signed the certificate, he also certifying that if he had attempted to rectify the bill of exceptions, he would have been compelled to have rewritten it.</p> <p>(a.) No motion to dismiss was made in this case. ,</p> <p>3. A claim against a trust estate may be enforced at law, but the plaintiff must make, by his pleadings and proof, a case in which a court of equity would administer the relief prayed for. He must establish the existence of 'a trust estate, of what it consists, and the specific facts that render it liable for the debt.</p> <p>4. In a suit against one as a trustee of certain named cestuis que trust, a judgment cannot be recovered against him individually.</p>

Gertiovari. Justice Courts. Bonds. Amendment. Before Judge Hillyer. Eulton Superior Court. April Term, 1882. Hendrix & McBurney sued Mason in the justice’s court of the 1026th district G. M., on an open account for $75.00. When the case was called for trial, the defendant not being-present, judgment -was rendered for the plaintiffs.

<p>1. There was testimony to show that the debts which form the foundation of this suit were extinguished; but if otherwise, these claims should not have priority over the debts contracted with innocent parties without notice of such stale and questionable demands.</p> <p>2. Notes were given in Tennessee on October 4,1869, the last of which fell due October 4, 1872. On February 7, 1870, the maker died, and administration was granted on March 7, thereafter. The payees were of full age and under no disability from the date of the maturity of the notes. The administrator died December 16, 1879; and subsequently, the estate of such deceased administrator being insolvent, the payees of the note sought to collect the note out of the assets of such estate:</p> <p>Held, that the notes were barred by the statute of limitations.</p> <p>(a.) By the law of Tennessee, the creditors of deceased persons, if they reside within that state, shall,' within two years, and if without, in three years from the qualification of the executor or administrator, exhibit to him their accounts, debts and claims, and make demand and bring suit for the recovery thereof, or be forever barred in law and equity. No admission or promise on the part of the administrator after the debt is barred, can operate to defeat the statute, and not to plead the bar will charge the administrator with a devastavit. All actions against the personal representatives of a decedent, for demands against such decedent, shall be brought within seven years after his death, notwithstanding any disabilit}’existing; otherwise they will be forever barred.</p> <p>(6.) "When a foreign executor or administrator is sued in the courts of this state, the'nature and extent of his liability will depend upon the laws of the state where he derived his authority to administer the assets of the decedent.</p>

<p>[This ease was argued at the last term, but was ordered re-argu-d at the present term.</p> <p>1. A railroad company which sells and issues tickets to passengers over its own lines of road and lines of road of other companies (known as through tickets), is liable for the sure and safe transportation of such passengers to the point of destination, notwithstanding there may be indorsed or printed on the tickets so sold and issued a notice that the company issuing and selling such tickets shall not be liable, except as to its own lines of road.</p> <p>(a.) The road issuing a check for the baggage of a passenger with a through ticket, has been held liable for its safe and sure carriage and transportation, on the ground that it was a part of its undertaking ; and the same principle will apply to the passenger himself.</p> <p>2. Where the agent of a railroad in Atlanta, Georgia, sold to a passenger a ticket to Galveston, Texas, (to which point it was guaranteed he could go,) by way of his own road and connecting roads to New Orleans, and thence by the Morgan line of steamers to Galveston, and upon the arrival of the passenger in New Orleans he found that the steamers on the Morgan line had been taken off; if there were other routes to his destination open to him, the measure of damages which he could recover against the road issuing the ticket, would be what it would have cost him to have reached his destination by other means and routes than the Morgan line, including reasonable pay for delays; and it might include, also, such special damages as the party may have sustained by reason of such delay.</p> <p>(a.) If it should appear that no quarantine existed w'hen the ticket was sold, and that subsequently to the purchase, the Morgan line of steamers was withdrawn, in consequence of the prevalence of yellow fever in New Orleans, then the purchaser would not be entitled to recover anything.</p> <p>(b.) If the steamers had been withdrawn when the ticket was purchased, and the purchaser proceeded to New Orleans, and there was no other convenient and expeditious way, then the measure of damages would be the expenses of the purchaser from Atlanta to New Orleans and back, expenses while there, necessary expenses on the road, and the loss of time in making the passage there and back.</p>

■ Constitutional Law. Courts. Judgments. Executions. Equity. Practice in Superior Court. Before Judge Mershon. Clinch County. At Chambers. December 18, 1882. Mrs. Griffin, on behalf of herself and her minor children, filed her bill, against Strickland and the sheriff of Clinch county, alleging, in brief, as follows: On February 19, 1882, one Staten conveyed to the husband of complainant certain land, in trust for complainant and her children..

<p>Amendment. Practice in Superior Court. Equity. Res Acljuclieata. Judgments. Before Judge Harris. Campbell Superior Court. August Term, 1882.</p> <p>Smith filed his bill against Joseph Hornsby, William Stubbs and Arnold Stubbs, alleging, in brief, as follows:</p> <p>In 1859, William H. Smith, the brother of complainant, purchased from Hornsby 441-} acres of land in Fayette county for $3,000, $1,500 of which was paid in cash, and a note given for the balance. Wm. H. Smith received a bond for titles. Shortly afterwards, complainant purchased the land from his brother, with the assent of Hornsby, paying to his brother the $1,500 which the latter had already paid on the purchase money, taking an assignment of the bond, and giving to Hornsby his note, with his brother as security, for the balance, with interest. Complainant then went into possession, and made valuable improvements upon the land. He remained in possession until August, 1867, when he was adjudged a voluntary bankrupt. In 1866, Hornsby sued on the note of complainant and recovered judgment, and in October, 1867, he received $792.50, which had been raised by levy and sale of some of complainant’s property. About the year 1868, Hornsby assigned the judgment to Wm. H. Smith. Shortly after complainant went into bankruptcy, Hornsby wrongfully and fraudulently took possession of the land in dispute, and William and Arnold Stubbs have now been in possession about three-years, either as tenants of Hornsby or by some pretended claim under him. Owing to the disability resulting, from complainant’s bankruptcy, he was unable to- bring suit until after September 13, 1877, when, upon his application and by consent of all his creditors who had proved their claims in bankruptcy, he was allowed, by an order of the district court, to withdraw from bankruptcy and dismiss the proceedings. The property is now worth $4,000, and its value for rent is $300 per annum, which has been, enjoyed by the defendants from 1868, until the present time. The improvements placed upon the land by complainant greatly enhanced both its intrinsic and rental value. Complainant has tendered to Hornsby whatever may be due him, if anything, on the property, and is still ready to pay the same.</p> <p>The prayer was for an injunction to prevent any sale or transfer of the property; for an accounting as to rents and profits; for specific performance, and that Hornsby be required to make a deed to him; for general relief and subpoena.</p> <p>By amendment, complainant alleged that on November 27, 1877, he tendered to Hornsby $1,050, the full amount of the .purchase money unpaid, and demanded a deed, which was refused. By a subsequent amendment complainant alleged that a previous bill had been filed by his attorneys, Messrs. Alford & McDaniel, on January 9,1875, wherein it was alleged by mistake that Weems, his assignee in bankruptcy, had conveyed, by written agreement, to Hornsby all the interest, right and title which complainant had in and to the said land. This allegation was a mistake of fact, and he is advised and believes that what he then supposed was a conveyance of his right, title and interest was in truth and fact not so. No order was ever granted to the assignee to make any such conveyance. He supposed at the time that such an order had been granted, and never learned the contrary until after the former bill had been disposed of. He, therefore, prays to be relieved from any prejudice on account of such allegation.</p> <p>Defendant demurred to and answered the bill, and pleaded former recovery. The plea alone is material. The former suit, relied on in this plea, was a bill by the same complainant against Hornsby, W. J. Smith, James M. Gorman and his wife Ophelia. This bill alleged the sale by Hornsby to W. H. Smith, the transfer to complainant, the recovery on the note for balance of the purchase money, the adjudication in bankruptcy, the transfer of thefi.fa., the collection of a part of it by Hornsby,-, similarly to the present bill. That bill alleged also that Hornsby, confederating with his step-danghter, Mrs. Gorman, had made a deed to the property to her, she taking with full notice; that she and her husband were about to make'some transfer or conveyance of the land; that on December, 2,1867, Hornsby confederated with Weems, the assignee in bankruptcy of complainant, and without any consideration, except what may have unlawfully passed between them as a bribe, Weems conveyed all of complainant’s interest, right and title to the land to Hornsby; that W. H. Smith had transferred they?./», for the balance of the purchase money to W. J. Smith, who took with full notice of complainant’s rights, and was taking steps to sell the land. ■</p> <p>Complainant tendered the balance of the purchase money which might be due, and prayed an injunction to restrain the sale of the land; that the deed from Hornsby to his step-daughter be cancelled; that the transfer of the bond by Weems, assignee, be set aside; that he have an accounting for rents, etc., and a money'judgment against Hornsby. Attached to this bill as an exhibit was an affidavit by complainant, made before the register in bankruptcy, November 27, 1867, and upon this was written a transfer of “the above indenture,” “in lieu of a bond held by R. P. Smith.” (It appears from the answers in the present case that William Stubbs and Arnold Stubbs hold under Gorman and wife.)</p> <p>To this bill defendants demurred on various grounds. The court sustained the demurrer, and entered the following judgment: “ After argument had upon the demurrer in this case, it is ordered by the court that the demurrer be sustained on the ground that the complainant is! not entitled to the'relief prayed for, or any other relief, under the allegations of facts in the bill.”</p> <p>This judgment was carried to the Supreme Court and there affirmed (58 Ga., 529); and upon it rests the plea of res adjudieata.</p>

Practice in Superior ' Court. Ne exeat. Injunction. Receiver. Extraordinary Remedies. Before Judge Roney. Richmond County. At Chambers. March 2, 1883. Max Brown made an assignment to Bleyer for the benefit of creditors, giving preference first to the Bleyer Distilling Company, and afterwards to Blum & Company.

• Negligence; Railroads. Non-suit. Master and Servant. Before Judge Fain.' Whitfield Superior Court. October Term, 1882. Bell brought an action for damages against the Western and Atlantic Railroad.

<p>1. In a claim case, if the execution be insufficient, the proper motion on the part of the claimant is to dismiss the levy or to exclude the fi. fa. from evidence. His only concern is that the execution shall not proceed against his property; and a motion to quash the same does not lie in his mouth.</p> <p>2. Where a mortgage on certain lumber, rosin and cotton shipped on board a vessel known as the “Juanita Ciar” was foreclosed, and the fi. fa. directed the sheriff “that of lumber, rosin and bales of 1 cotton now on board the ‘Juanita Ciar,’ lying in said county, you cause” etc., the description in such,/i./a. was insufficient.</p> <p>3. An execution issued on the foreclosure of a mortgage on realty should show upon whose property it is directed to be levied.</p>

<p>Trusts. Actions. Wills. Estates. Judgment. Principal and Surety. Practice in Superior Court. New Trial. Before Judge 'Hansell. Brooks Superior Court. November Term, 1882.</p> <p>Reported in the decision.</p>

<p>Amendment. Debtor and Creditor. Practice in Superior Court. Sales. Title. Judgment. Vendor and Purchaser. Before Judge Wellborn. Hall Superior Court. August Term, 1882.</p> <p>Eeported in the decision.</p>

<p>Railroads. Service. Yenue. Before Judge Fain. Dade Superior Court. March Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. Where a married woman makes application for a homestead, the records should show out of whose land it is to be carved, so that creditors may be notified that their interests are attacked. If this be not done, the record of the homestead cannot be admitted in evidence.</p> <p>2. The grounds upon which counsel ask the court to exclude testimony from the jury should always be precisely stated, so that the judge below and this court may be able to understand and rule correctly thereon. A mere general assignment of error in admitting certain testimony cannot be considered by this court.</p> <p>3. In order to require a reversal on the ground that the judge refused to suppress certain interrogatories because the witness had a memorandum which he failed to attach to his answers, it should appear that the motion was made in writing, and notice thereof given before the trial.</p> <p>4. An acknowledgment of service by the defendant on a declaration, before the same is filed in office, will authorize a judgment against him, although it may not be shown that he appeared and defended the suit, or knew that it was proceeding against him previous to the judgment.</p> <p>5. The defendant was bound by his acknowledgment of service on the declaration, and was entitled to no further notice before judgment.</p> <p>6. The verdict was not contrary to law, evidence or justice.</p>

<p>1. Where a debtor, his creditor and a third person, who owed the debtor, came together, and it was agreed that the third person should pay the creditor, who thereupon looked to him for payment, and the debtor was released, the third person became the debtor by substitution, and the contract was not within the statute of frauds.</p> <p>2. Suits in justices’ courts are not to be held to such technical rules as those in courts of record. The law requires no pleading in writing for the trial of a case; and, therefore, subsequent amendments are not indispensable to a judgment.</p>

<p>1. Where one signs a note with his own name, and nothing appears upon its face to show that he is acting for another, he will be held liable; and so also where one signs for another, for whom he has no legal authority, as where he adds to his own name the word administrator, executor, guardian, or merely agent, the obligation is held to be a personal one. Where such principal is distinctly indicated, and the contract is substantially in his or her name, the principal, and not the agent, will be liable, if the agent has the right to bind the principal, but the particular form in which the principal is indicated is immaterial.</p> <p>(a.) Therefore if a husband signed a note, “J. A. Robson, agent for his wife,” such signature sufficiently indicated that the debt was that of the wife, and that the husband was her agent; and the failure upon her part to plead non est factum may well be construed into an implied admission of his authority to make it. And parol evidence was admissible to show who the wife was.</p> <p>2. Where a husband contracted a debt on behalf of his wife, and gave a note therefor signed by himself as her agent, such note was not payment of the debt, in the absence of any express agreement to so receive it.</p>

<p>Criminal Law. New Trial. Verdict. Charge of Court Before Judge Willis. Marion Superior Court. October Term, 1882.</p> <p>Reported in the decision.</p>

<p>Actions. Administrators and Executors. Title. Corporations. Before Judge Hillyer. Fulton County. At Chambers. October 6,1882.</p> <p>Mrs. Mason filed her bill on behalf of herself and her minor children, against the Atlanta Fire Company No. 1, alleging, in brief, as follows: In 1850 the company was incorporated by the legislature, under the name of the Eire Company of the City of Atlanta. They were to elect their own officers, who were to be commissioned by the governor. The members, not exceeding thirty in number, were to be exempt from jury duty, and, except in case of war, from militia duty. The length of time for the continuance of the corporate privilege was not prescribed. By act of 1854, the membership was increased to sixty, and the name changed to the Atlanta Fire Company No. 1; perpetual succession was given, with the right to have a seal, to sue and be sued, to form a constitution and adopt by-laws. They subsequently adopted a constitution and by-laws, which provided for the election of members, their duties, their expulsion, the dropping of them from the roll for delinquencies, the election of officers, etc. No provision was made, either in the charter or in the constitution and by-laws, for the acquisition of property; but from the collection of dues from the members and by voluntary donations, fairs, festivals, excursions and other public and private entertainments, a considerable amount of money was raised and invested in real and personal property for the use of the company. Mason, the husband of complainant, was a member of this company, and by his zeal, skill and energy, contributed more to the creation of this fund than any other one member. He died October 21, 1867, being at that time an active member in good standing, with all his dues paid and a clear record on the company’s book. In 1882, the system of fire service in Atlanta was changed, the volunteer service being discontinued and a paid department being organized. This company, therefore, was dissolved, or at least the object of its incorporation ceased. They have sold their personal property for an amount not known to complainant, and their real estate for $10,300, and the present living members of the company are about to distribute the money without regard to the rights of the widows and orphans of deceased members. If the fund is so distributed, it will, in a large measure, go into the hands of persons who are insolvent and cannot respond to any judgment complainant may recover. The prayer was for an accounting between living members and the representatives of deceased members, for the appointment of a receiver to take charge of the fund, and injunction to prevent its being paid out until the rights of complainant could be ascertained.</p> <p>Defendant demurred to the bill, (1) because complainant disclosed no right in herself to assert the supposed cause of action, and (2) because there was no equity in the bill.</p> <p>Defendant also filed an answer, the statements of which differed from those in the bill in the following particulars: Defendant acquired from the voluntary sources stated in the bill such property as was necessary to it for fire purposes. The city of Atlanta has abolished the volunteer-fire system. It is- not true that defendant has dissolved or surrendered its charter and franchises. The property being no longer needed, was sold, the proceeds of the sale of the personalty (which was acquired since 1867) have been divided among the members. No action has been taken with reference to a division of the monéy arising from the real estate. Defendant insists that at his death Mason ceased to be a member, and denies that either he or his estate had any interest which survived him.</p> <p>The injunction and receiver were denied, but a temporary injunction was granted to restrain the paying out of $300 until the case could be heard in the Supreme Court. Plaintiff excepted.</p> <p>cited, on the statute of limitations, Code, §§2928, 3196; 36 Ga., 575 ; 1 Ga., 379, 538; 6 lb., 310; 22 lb., 108. On the nature of the corporation and interest of members, Field Corps., §§69,123 ; Mor. Corps., §§381, 662, 401, 403, 405, 343, 217; Code, §1688 ; 62 Ga., 695.</p> <p>cited, on the statute of limitations, Code, §§2918, 2928. Administrator should sue, Code, §2483. On division of assets, Code, §1688; Ang. & Ames Oorp., §195; 38 Cal., 174; 5 Ga., 242; 53 lb., 628.</p>

<p>[This case was brought forward from the last term, under ¡¡4271 (a) of the Code.]</p> <p>1. The act of the legislature which gave to a land owner in Atlanta the right to have a permanent grade, required, as a prerequisite to its value as vesting a right in him, that it be filed for record. Having failed so to do, he could neither recover damages, under that act, from the city, resulting to his lot from a change in the grade of the sidewalk, nor enjoin the municipal authorities from making such change.</p> <p>2. Ignorance of the law and inadvertence do not jointly or severally commend a suitor who seeks relief in a court of law or equity; never, where the strong remedy of injunction is sought.</p> <p>3. If any owner of property be damaged by the grading of a street so as to lessen the pecuniary value of such property, he may recover damages for such injury to his freehold. That damage will be 'measured by the decrease in the actual value of the property. Increase of value resulting from such improvements may be set off against the damages proved, the right of recovery turning in each case on the decreased pecuniary or market value of the property caused hy the grade.</p> <p>4. The grading of streets should not be stopped, and extensive municipal improvements prevented by injunction, because of damage which would result to the owner of a lot bordering on the street.</p> <p>(a.) There is a broad distinction between cases of this character and those in which possession of, and dominion over, private property is taken for public use, like Chambers vs. Cincinnati and Georgia Railroad, 69 Ga., 320.</p> <p>5. On an application for an injunction, questions of fact are for the chancellor.</p> <p>(a.) If the authorities of the city were using their official power in behalf of the individual profit of themselves or others in collusion with them, at the expense and to the damage of other citizens, the courts would interfere to stop such conduct. But as the charge would involve a deep degree of moral turpitude, the proof should be correspondingly strong and certain.</p> <p>6. It is evident that the authorities are moving to secure the change of grade.</p>

Criminal Law. Charge of Court. Practice in Superior Court. New Trial. Before Judge Simmons.. Bibb Superior Court. October Term, 1882. Bailey was indicted for murder. On the trial, the evidence for the state showed, in brief, the following facts: Tatum, the deceased, kept a bar and store. There was a society meeting in progress upstairs over the store, and Bailey was in attendance upon it. He came down and gave Tatum a dollar to be changed.

<p>Homestead. Constitutional Law. Before Judge Pate. Laurens Superior Court. August Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>Possessory Warrant.. Actions. Officers. Municipal Corporations. Before Judge Fain. Whitfield Superior Court. October Term, 1882.</p> <p>Reported in the decision.</p>

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. The setting- apart of a homestead or the allowance of an exemption, under §2040 of the Code, does not alter or change the title to property exempted; it merely sets apart such property for a particular specified use, and to that extent imposes a charge or encumbrance upon the estate. When, however, the family is broken up, either by the death of the dependent members, or by the sons’ reaching their majority (in case they are otherwise sui juris), the property becomes disencumbered, and is liable for the debts of the owner of the legal title. The use is then fully executed, and is at an end.</p> <p>(a.) If females are members of a family for whose benefit the homestead is set apart, the property remains exempt from levy and sale so long as one of them lives and remains single.</p>

Scire facias. Lis pendens. Abatement. Actions. Before Judge Fain. Bartow Superior Court. July Term, 1882. Bates brought ejectment against Yaughan. Pending the action the defendant died, and, after the expiration of twelve months, plaintiff proceeded by scire facias to make his administrators parties.

Attachments. Officers. Nullities. Judgments. Corporations. Levy and Sale. Before Judge Hillyer. Fulton Superior Court. April Term, 1882. On June 23,1879, an attachment was sued out by Porter -& Meakin against the North American Ice Company, and was- levied on certain real estate. No defence was made, •and a judgment in attachment was rendered for the plaintiJT April 1,1880. A claim was interposed to the levy ■-thereunder by the Georgia Ice Company.

<p>[Jackson, Chief Justice, being disqualified, did not preside in this case.]</p> <p>1. By the Code, §3377, trust estates are made liable to suits in courts of law to collect and enforce the payment of claims against them for services rendered,- or for property or money furnished for their use, to the same' extent as they would be rendered liable in courts of equity.</p> <p>2. That the trust property described in the declaration consisted of realty, did not make the action such a suit respecting the title to land as could only be brought in the superior court.</p> <p>3. Where certain members of the vestry of a church, the title to the property of which was in a trustee, caused gas fixtures to be placed in the church building, but it was not shown that the trustee, either personally or through his authorized agents, ever ordered or received the goods, or that the congregation or parish did so, or that they were furnished for the use of the trust estate, which consisted entirely of the church lot, a verdict against the trustee was not supported by the evidence.</p> <p>(a.) Nothing is decided as to the ability of the trustee in such a case to put a charge upon the trust property, that question not being made by the record.</p>

<p>1. When a party institutes a suit, it is his duty to attend to its progress, and take notice of any defence that may be filed. It is not incumbent upon the court to keep him informed of the various steps taken in its course, and he is not entitled to service of the pleas, though a plea of set-off may be filed.</p> <p>(a.) A set-off being pleaded, the court should not, of its own motion, have dismissed the suit, or continued it in order to give the plaintiff notice of the defence.</p> <p>2. Mere general statements in an affidavit of illegality, that the pleadings were so defective that no legal judgment could be rendered, will be disregarded.</p> <p>3. In order for the allegation that a judgment was obtained by perjury to be available as a ground of an affidavit of illegality, it should appear that the offender has been convicted, and that the judgment could not have been obtained without his evidence.</p> <p>4. It is no ground for an affidavit of illegality that a fi. fa. from a justice’s court was levied by a constable outside of the district where the judgment was entered, and outside of the county of defendant’s residence, when it appears that the property levied on was found in the bailiwick of the officer making the levy; nor was it necessary that the./i. fa. should have been backed by a magistrate of the county of the defendant’s residence, to authorize the levy made in this case.</p> <p>5. A town marshal may be a bailiff. There is nothing incompatible or inconsistent in the exercise of the powers and duties of both offices by the same person.</p>

<p>Under the constitution of 1868, and Code, §2016 (a), money cannot be finally set apart as an exemption by the ordinary, until it has been invested. An exemption of money is void as against a debt prior to 1877.</p> <p>(a.) Therefore, where money had been brought into court under garnishment, based on a debt created in 1872, and the debtor claimed it, and, by equitable plea, stated that he was the head of a family consisting of himself and wife; that he desired to invest the money in a horse to be held by him as a part of the exemption allowed him under the law; that the fund was impounded at the time he applied for his exemption, and he could not, therefore, make an investment, and prayed that the verdict and judgment be so moulded as to secure to him the making of the investment — such equitable plea was properly stricken on demurrer.</p>

Criminal Law. Alibi. Before Judge Clark. City-Court of Atlanta. March Term, 1882. Landis was tried in the city court of Atlanta on an accusation charging him with malicious mischief. One ground of his defence rested upon an alibi. He was found guilty, moved for a new trial, which was refused, and he excepted. For the other facts, see the decision.

<p>1. A debtor may prefer one creditor to another by any legal means, and the right is unqualified, except that he shall not reserve the surplus for his own benefit or that of any other favored creditor, to the exclusion of other creditors.</p> <p>2. A general assignment for the benefit of creditors, bona fide made by the debtor and assented to by the assignee, will be deemed a valid conveyance founded upon a valuable consideration, and good against creditors proceeding adversely to it, at least unless all the creditors for whose benefit it is made repudiate it; and where the creditors are not required to be parties to the instrument, they may take the benefit of the trust by notice to the trustee within the time named, if any, and if none, then within a reasonable time and before a distribution of the property.</p> <p>3. The trusts arising under general assignments for the benefit of creditors are peculiarly objects of equity jurisdiction. When, therefore, the assignee resigned, and it became necessary for the benefit of those interested that there should be some one to carry out the trust, the appointment of a receiver, as successor to the assignee, was proper.</p> <p>4. The resignation of the assignee was not a revocation of the deed of assignment. The title having passed into him, the trust should not be allowed to fail for the want of a trustee.</p> <p>(a.) After the title passed out of the debtors, judgments against them fixed no lien on the property.</p> <p>(6.) It is not held that the judgment creditors may not, by leave of the court, attack the deed or assert a claim to the fund, if they can show a legal claim to any part thereof.</p>

<p>[This case was argued at the last term, and the decision reserved J</p> <p>1. A will, after leaving certain specific legacies and providing that testator’s debts should be paid before distribution, contained the following items: “Iteml. * * * My willisthat, at the same time the above distribution is made, that my daughter, Sarah A. E. Edwards, have anegro woman loaned to her during her life, and then to the children of her body; said negro and what may subsequently fall to her in settlement with her mother, or final settlement at her mother’s death, all to go into the hands of John Rich, trustee for Sarah A. E. Edwards'.</p> <p>“Item 3. My will and desire is that my beloved wife, Sarah Rich, have the whole of the balance of my estate, both real and personal, during her natural life or widowhood, and at her death I give and bequeath the whole estate to my five.children, to them and their heirs forever, except Sarah A. E. Edwards.in trust as above described; but if my wife should marry, my will is that on her intermarriage that my property be equally divided between my wife and five children, to them and their heirs forever, except Sarah A. E. Edwards, as before excepted.</p> <p>' ‘ ‘Item 6. My will is that my son, John Bich, take charge of all the property falling to Sarah A. E. Edwards, and manage the same for the benefit of her and her children; and if he should die before she does, or before a settlement with the children, that in that case the court of ordinary appoint a successor to settle the same ” :</p> <p>Held, that the property devised by the third item of such will, so far as it concerned the testator’s daughter, did not pass for her use for life with remainder to her children, but she and her children occupied the position of tenants in common as to one share of the property to be divided at the death of testator’s wife. Such share was to be held in trust, and the children were entitled to a settlement when in law, by reason of being of full age, they could demand it.</p> <p>2. Under the facts of this case, if the original sale of realty passing under the third item of testator’s will was illegal, a prescriptive title in favor of the present holder has nevertheless ripened, and a verdict for the defendant was demanded by the evidence. Therefore, even though some errors may have been committed at the trial, the verdict will not be disturbed.</p>

<p>[This case was brought forward from the lost term, under 84271(a) el seq. of the Code.]</p> <p>1. The object of section 3938 of the Code in limiting the service of a juror to four weeks in any one year is two-fold: first, to equalize the burden of jury duty; and second, to avoid the evil of “professional jurors;” and it should be strictly and energetically enforced for those purposes.</p> <p>(a.) Although a juror may have served four weeks during a term of court which began in December, yet he would not thereby be disqualified from another week of service in the succeeding year, although at the same term, which continued into the new year. The prohibition is against sendee for more than four weeks in a year, which means a calendar year.</p> <p>2. On the trial of an action for damages by an employé of a railroad against the company, based upon the insecure fastening of a stove in one of its cars, resulting in damage to the plaintiff, it was not error against the defendant to charge that it was not liable unless it “knew or should have had reason to know," that the stove was in an unsafe condition.</p> <p>(a.) The duty rested on the company to .properly select and superintend its operatives, its machinery, appliances and appointments of every sort used in its business. It was a guarantor that all reasonable and proper care had been and should be exercised in the performance of those duties, and its liabilities should be limited to a failure to meet its obligations in this respect.</p> <p>3. If it was the duty of a flagman to make fires in the'stove on one of the cars of a railroad company, which he did; and if there was a defect in the manner in which the stove was fastened, such as to make it unsafe to build a fire therein on account of the dangers incident to railroad travelling; and this was such an open and patent defect as he could have easily seen, but on account of his own negligence he carelessly overlooked it and failed to report it that it might be remedied, then he was guilty of contributing, by his own negligence and carelessness, to the injury which he received, and was therefore not entitled to recover.</p> <p>4. A flagman on a railroad whose place was in the rear car when in motion, but who had duties which, on occasion, might call him to other parts of the train, having brought suit against the railroad company for an injury received while he was in another portion of the train, resulting from the overturning of a stove in the car where he was, it was necessary for him to show affirmatively that, at the time he was hurt, his duty required him to be at the place where the injury occurred.</p> <p>(a.) That, by reason of the shock or the lapse of time, the plaintiff has lost the memory which would enable him to establish this fact, is his misfortune, but does not vary the law.</p>

Actions. Parent and Child. Torts. Before Judge Clark. City Court of Atlanta. December Term, 1882. Mott sued the Central Railroad for the homicide of his father, R. L. Mott.

<p>1. Since the adoption of the constitution of 1877 and the passage of the act of 1879, it is the duty of justices of the peace to select some central and convenient place in their respective districts at which to hold their courts, and judgments rendered at other times and places are void.</p> <p>(a.) In Harbig vs. Freund & Co., decided at the last term, local laws were in operation until changed, and the judgment was rendered prior to the act of 1870. In this it differs from the present case.</p>

<p>1. Under §3457 of the Code, in a suit on an open account, where there has been personal service and the case is in default, the plaintiff may take a verdict as if each of the items were proved by testimony.</p> <p>(a.) Under the act of 1861, in such cases the plaintiff was entitled to a verdict. Under the constitution of 1868, the court rendered judgment by default in such cases, and the word “judgment” was inserted in the Code of 1873, in order to make it conform to the constitution. Under the constitution of 1877, verdicts are rendered in such cases, and it should so appear in the Code.</p> <p>2. A suit on a receipt for sundry promissory notes and accounts to be collected by the maker of such receipt, with an allegation that he has collected and failed to pay over certain sums, is not an action on an open account, in the sense of the act of 1861, and a verdict cannot be taken thereon without proof, by reason of personal service and absence of defence.</p> <p>(<z.) Nor is this such an unconditional contract'in writing as to authorize a judgment, under the constitution of 1877.</p>

<p>1. Where a creditor, his debtor and a third person who owes the debtor agree in parol that such third person shall be substituted for the debtor and that the latter shall be released, the case is not within the statute of frauds, so as to require the agreement to be in writing, but the debt is extinguished as to the debtor, and the third person becomes, by substitution, the debtor in his place.</p> <p>2. A purchaser of land gave his note in part payment therefor; the note was negotiated before due; the title proved not to be perfect; it was agreed that the vendor should pay two-thirds of the note and the vendee one-third. It was subsequently agreed by the vendor, the vendee and a third party who owed the vendor, that the latter should pay the two-thirds of the vendee’s debt, instead of the vendor, who was thereupon released; the person thus assuming to pay failed to do so, and suit was brought by the vendee:</p> <p>Held, that if the debt of the third party to the vendor was due, and the debt which the vendor had agreed to pay was also due, the vendee could recover; and he would not be compelled to pay the note before bringing suit.</p> <p>3. The charge of the court was not objectionable on the ground that it failed to cover the issues in the case. If more specific instruc- ' tions on any branch of the case were desired, a request therefor should have been made. Concise and pertinent charges are to be commended.</p>

<p>[This case was argued at-the last term, and the decision reserved.]</p> <p>1. The object of the constitutional provision conferring power upon the legislature to regulate railroad freights and passenger tariffs, to prevent unjust discrimination and require reasonable and just freights and tariffs, and making it the duty of the legislature to pass laws in furtherance of this provision, was to give proper protection to the citizens against unjust rates for the transportation of freights and passengers over the railroads of the state, and to prevent unjust discrimination, even though the rates might be just. It was not expected that the legislature should do more than pass laws to accomplish the ends in view. Nor were they required to enter into the details of settling freights and tariffs over all the railroads in the state. The railroad commissioners are officers appointed to carry into execution the laws passed by the legislature, and are constitutional officers.</p> <p>(a.) The powers of the railroad commissioners are not legislative. The power to adopt rules and regulations to carry into effect a law already passed, differs from a. power to enact the law.</p> <p>2. Acts of incorporation granting exclusive privileges to the corpora-tors are always to be strictly construed, and whatever is not expressly given therein, or not necessarily implied therefrom, is withheld.</p> <p>(a.) The 12th section of the charter of the Georgia Railroad and Banking Company was as follows: “ That the said Georgia Railroad Company shall, at all times, have the exclusive right of transportation or conveyance of persons, merchandise and produce over the railroad and railroads to be by them constructed, while they see fit to exercise the exclusive right; provided that the charge of transportation or conveyance shall not exceed fifty cents per hundred pounds on heavy articles, and ten cents per cubic foot on articles of measurement, for every hundred miles, and five cents per mile for every passenger ” :</p> <p>Held, that the exclusive right granted by this section, was the right of transportation or conveyance of persons, merchandise and produce oyer the railroad and railroads to be by them constructed. The state did not contract with the company to guarantee to it the exclusive right to charge the maximum rates named.</p> <p>Harr, J., dubitante as to last point.</p>

<p>1. Wheré the tenants of a land owner placed a fence across a public road which ran through the land, but the owner did not claim the right to close the road, but exercised the privilege in subordination, and not adversely, to the right of the public, the lapse of from six to seven years furnished no reason for enjoining the road commissioners from removing such obstruction.</p> <p>2. The abandonment of a public highway by mere non user does not work a forfeiture of the right to its use. An existing public road, cannot be discontinued without the-order of the ordinary or county commissioners, where there are such commissioners, based upon application and notice, and duly registered in the proper office.</p> <p>3. The corporate authorities of the town of Rockmart, it seems, had no jurisdiction over this road. If they had, they took no action to discontinue it. The opening of a more direct road by them had no such effect, nor does it appear to have been so intended.</p>

New Trial. Yendor and Purchaser. Trusts and Trustees. Homestead. Before Judge Pottle. .Hart Superior Court. March Term, 1882. Watson endeavored to purchase a lot of land from Haynie. They agreed upon $1.500 as a price. Watson desired the land for his wife, but her trustee, Blake, had only $1,380, and refused to give more for the land. Haynie then agreed that if Watson would give his note for the difference of $120, he would make the deed to the trustee.

<p>[Ill this case, Hall, Justice, being disqualified, Judge Adams, of the Eastern Circuit was designated to preside in his stead.]</p> <p>1. The ordinary of a county having jurisdiction of an administration is incompetent as an attorney to bring suit on the bond of the administrator.</p> <p>2. A suit so instituted by the ordinary as sole counsel was illegal, and could not be amended by adding the name of another attorney nunc pro tunc to the declaration.</p> <p>(a.) This case differs from that in 31 Ga., 337. What the law forbids to be done is widely different from that which is permissive or discretionary.</p>

<p>1. A merchant always warrants that what he sells is reasonably suited to the use for which it is sold. Therefore, in'a suit on a note given for chemicals to be used as a fertilizer, the plea being failure of consideration, there was no error in charging that “if the jury believed from the evidence that the fertilizer for which the note was given was properly and skillfully applied by defendants, that the soil was suitable and the seasons favorable, and that the fertilizer failed to produce any resultas to an increase in the crops, then the fertilizer was not reasonably suited to the purpose for which it was sold, and you should find for the defendants,” the converse of the proposition being fully given.</p> <p>2. There was sufficient evidence to support the verdict.</p>

<p>1. The fact that a judge of the superior court had formerly been a director of a railroad company, and was so at the time that an attorney rendered professional services to the company, did not disqualify him from presiding atthe trial of a suit for such services, if at that time he had ceased to be a director, owned no stock, and was not otherwise interested. It is present, not past, interest which disqualifies a judge.</p> <p>2. In no case will the first grant of a new trial be reversed, unless it be made to appear that the discretion vested in the presiding judge had been abused. Such is not the case here.</p>

<p>Possession must be actual in order to protect land purchased from a defendant infi.fa. by a bona fide purchaser, after the lapse of four years. That the purchaser had the land surveyed, and finding the fence of a neighbor a little over his line, permitted it to remain there, on condition that he might join a fence thereto if he should desire to clear his land and build a fence, does not alone show such possession as will relieve the land from the lien of a judgment against the vendor. Code, §3583; 55 Ga., 44, 224; 64 lb., 46.</p>

<p>The right to recover damages resulting from a failure of a county to keep its bridges in proper repair was not affected by the adoption of the constitution of 1877. Whether or not the restriction imposed by that instrument (art. 7, sec. 6, par. 2) on the taxing power of a county would prevent the plaintiff from realizing the amount of his demand, does not affect the right of recovery; nor does it furnish any ground of demurrer to the declaration.</p>

<p>[Two justices presiding. J</p> <p>1. A case was brought in the superior court, dismissed and re-brought in the city court of Atlanta; when called, a motion was made to dismiss because the costs in the superior court hadnot been paid; the jury found that they had been paid; a motion was made for a new trial, which was granted unless the plaintiff would pay a certain sum of additional costs which the judge found to be due in the superior court; this was done; exception was taken thereto:</p> <p>Held, that the object of the law is to have the costs paid; they have been paid, and under the facts of the case a new trial is unnecessary on this ground.</p> <p>2. This case has been before this court three times; the law of the case was settled by the decisions then announced; the charge of-the court submitted the same to the jury fairly and fully, and a new trial is not required. 59 Ga., 544 ; 60 lb., 474 ; 63 lb., 291.</p> <p>(a.) In illustrations by the court in his charge, allusions to.what counsel has said, especially in a concluding argument, is bad practice, and has a tendency to indorse the concluding speech. Under the facts of this case, however, and taking the entire charge together, a new trial is not necessary.</p> <p>3. The verdict has settled the questions of fact, the damages were not excessive, and nothing said by the court injured the defendant.</p>

<p>Title by prescription was not shown by the defendants m this case, and a perfect title from the state having been shown by the plaintiffs, a verdict for the latter was not contrary to law or evidence. Code, §2679.</p> <p>(a.) Possession, to furnish a basis for a prescj-iptive title, must be public, continuous, exclusive, uninterrupted and peaceable. That a tramway or sluice boxes for the transfer of ores from an adjoining lot touched, or just passed through, one comer of the lot involved in suit, does not constitute such exclusive occupancy of that lot under claim of right as will ripen into a prescriptive title; especially where such construction does not appear to have been used continuously, but was allowed to rot down and so remain a portion of the time.</p> <p>(6.) Besides there was conflict as to payment of taxes on the land in this case, and the credibility of witnesses was a question for the jury.</p>

<p>A condition precedent to issuing the writ of certiorari is that the party seeking it shall produce a certificate from the officer whose decision or judgment is the subject-matter of complaint that all costs which may have accrued on the trial below have been paid. This condition is not met by a certificate that the plaintiff in certiorari has paid “the court costs in said case.” Code, §§4054, 3685.</p>

<p>Year’s Support. Before Judge Adams. Chatham Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

<p>Criminal Law. • Charge of Court. New Trial. Before Judge Branham. Floyd Superior Court. March Term. 1883.</p> <p>Reported in the decision.</p>

<p>Where, in an attachment case, a garnishment was served and an answer filed, the plaintiff might traverse the same at the term when it was made; but this is not imperatively required, and he could traverse the answer at a subsequent term before an order had been taken discharging the garnishee.</p> <p>(a.) This differs from a traverse of the ground of an attachment. The latter is a dilatory plea or a plea in abatement, and must be filed at the first term.</p> <p>(&.) The bare factof answering and admitting indebtedness or effects, does not discharge the garnishee. He should pay the money into court or deliver the effects to the sheriff, to entitle him to a discharge ; and these facts should clearly appear by the proceedings in the case. When this is done in open court, and his discharge moved for, if the plaintiff is dissatisfied with the answer, he may traverse it.</p> <p>(c.) It will not avail the garnishee that the fund which he admits having may not be subject to the garnishment because of being daily wages due to the defendant as a mechanic. When the money is paid into court, the defendant may claim his exemption or waive his right thereto; and the plaintiff has the right to contest the fact that the fund arises from such source.*</p>

<p>Evidence. Deeds. Title. Before Judge Adams. McIntosh Superior Court. November Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. Upon the trial of an issue formed on the foreclosure of a mortgage, it was necessary to show 'that the debt due by the defendant to the plaintiff was still outstanding and unsatisfied. Therefore, where an issue was formed upon the foreclosure of a mortgage given to secure a negotiable note, upon the trial it was necessary to introduce the note, or satisfactorily account for its absence; and where neither was done, a non-suit should have been granted, on motion therefor.</p> <p>2. A chancellor may grant power to a trustee at chambers to mortgage the trust estate, on a proper proceeding for that purpose. The power to allow a sale includes the power to allow a mortgage.</p> <p>(a.) The case of Iverson et al. vs. Saulsbury, Respess & Co., 68 Ga., 790, reviewed; the majority decision reversed, and the dissenting opinion of Jackson, C. J., approved.</p> <p>3. The evidence in regard to the beneficiary alleged to be non compos mentis is too meagre to warrant a decision as to her rights. No separate defence was made as to her.</p> <p>(a.) As a new trial will be had, the pleadings can be so amended as to protect her rights, and admit proof on all the questions essential to that end.</p>

<p>Where a defendant ivas tried and acquitted under an indictment charging him with larceny from the house and alleging the ownership of the house and of the goods stolen to be in the prosecutor, and was subsequently arraigned under another indictment for larceny from the house, alleging a different ownership of the house, and of the goods stolen, and a different day on which the offence was committed, a plea of autrefois acquit, setting out fully the first indictment and the proceedings had thereunder, and averring that the transactions embraced in both indictments.were one and the same, was good and should not have been stricken on demurrer.</p> <p>(a.) The facts in this case are the reverse of those in 63 Ga., 307.</p> <p>(6.) The first indictment does not appear to have been defective. The place of the larceny was stated with sufficient certainty to enable the j ury easily to understand, w’ith the aid of proof, the house indicated; and, though the goods alleged to belong to the prosecutor in fact belonged to a firm of which he was a member, he had , a right to their custody. Even if the indictment did not fully and accurately describe these circumstances, it would not prevent the defendant from pleading former acquittal.</p>

<p>An entry of levy in these terms: “I have this day levied the within fi. fa. on lots of land numbers 308, 309, 310, 332, all levied on as the property of (defendant in fi. fa.,) to satisfy an execution issued from the 957th district of Baker county, G. M.; property pointed out by the plaintiff,” was void for want of sufficient description, and when offered in evidence, together with the deed based thereon, they were inadmissible.</p> <p>(a.) Where the sheriff, in the deed based on such a levy, sought to_ locate the land by county and district, the deed did not conform to the levy.</p> <p>(6.) The execution, levy and sheriff’s deed should nothave been submitted to the jury, to enable them, with the aid of such other facts as might have been adduced, to locate and identify the land. This case differs from those in 12 Ga., 440; '59 II., 649, and this court adopts the dissenting views of Jackson, G. J., in 65 Ga., 201.</p> <p>(c.) That.the execution and levy were allowed to go to the jury, was not an error against the claimant under them; and his adversary did not except thereto.</p>

<p>1. Under the charter of the city of Savannah (Code, §4847) the municipal authorities have, power to classify and arrange the various businesses, trades, etc., carried on in the city, into such classes of subjects for taxation as may be just and proper. Where such classification has been made, and a tax imposed upon persons engaged in the business of commission merchants or factors, and also upon agents of steamboats and vessels, and upon agencies for ocean steamships, persons conducting more than one of these businesses could be required to pay a tax upon each, unless it should be made to appear that there was a custom of conducting the two occupations together of such universal practice as to justify the conclusion that by implication they were one and the same business.</p> <p>2. Authority to tax all persons exercising any profession or business may be exercised by taxing each member of a firm so engaged separately.</p>

<p>Wills. Administrators and Executors. Before Judge Eort. Schley Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

Criminal Law. Continuance. Attorney and Client. Evidence. Witness. Charge of- Court. Jurors. Before Judge Harris. Meriwether Superior Court. December Special Term, 1882. Pleasant M. Turner was indicted for the murder of John E. Shuttles. On the trial, the evidence showed that the defendant shot Shuttles in the back with a pistol and killed him.

<p>1. Ejectment was brought by certain persons as trustees of a church; the defendant died; when the case was called, his executor, though a year had not elapsed, was voluntarily made a party; during the ' trial, counsel for plaintiffs.stated that a deed made to the church, or former trustees thereof, had been supposed to be lost, but had been found by the deceased defendant, and was in possession of counsel for 'defendant; he introduced a witness who swore that the deceased defendant had told him about a year previously of the finding of the deed, and charged him to keep it secret, which he had done until since the trial began’; counsel for plaintiffs moved to require counsel for defendant to deliver ’the deed; the court refused to do so, or’to require counsel for defendant to answer questions as to his' possession;’ plaintiffs then moved for a continuance to give time for a notice to produce; it was refused :</p> <p>Held, that this was error. Wherever a paper is in court belonging to ofie party and surreptitiously secured find secreted'by fhe'oth’er, and handed to counsel, not to prepare a legitimate defence by the use of a link in the title, but to keep under cover of privilege and confidence, semble that its instant delivery to the party to which it belonged should be ordered.</p> <p>2. If notice to -produce, was necessary, a ’continuance 'should have been allowed to give time for that purpose. Under the facts, the plaintiffs were not in -laches. The defendant had died; his executor had just been made a party; counsel had just learned of the possession of the deed.</p> <p>a.) The deed desired was good as color of title to’support prescription, whether made to trustees or the cestui que trust.</p>

Practice in Superior Court. Notice. Evidence. Judgment. Fraud. Before Judge Bower. Calhoun Superior Court. . March Term, 1883. Wimberly et aln as heirs of Griggs, deceased, brought ejectment against Mansfield, as real claimant, and Ruth, as tenant in possession. Plaintiffs claimed under their father, Griggs, who died in possession.

Practice in Supreme Court. At September Term, 1883. . The bill of exceptions in this case shows that Masland et ux. brought a bill against Kemp et al., attacking a sheriff’s sale and claiming both the land and the money arising therefrom. At the October term of court, 1879, all parties not having been served, an order was taken to perfect service.

<p>[Blandiord, Justice, did not preside in this case.]</p> <p>1. When a defendant in an action of complaint for-land puts in his defence, he must admit possession.</p> <p>2. Section 2486 of the Code, applies only to suits by an administrator against heirs, or those holding under them; not to a suit by a stranger.</p> <p>That an administratrix stood by and saw property of the intestate sold under a void fi. fa. will not estop the administrator de bonis non who succeeded her from attacking the validity of the sale.</p> <p>(a.) Code, §2966; 59 Ga., 171 are not applicable.</p> <p>4. A constable who served a summons, and a justice of the peace succeeding the one who issued it in that office, may prove and identify it; the justice who issued it need not be called.</p> <p>5. Where a summons in a justice’s court, based on a claim for more than fifty dollars was issued in 1876, and called upon the defendant to appear within less than twenty days, the judgment rendered, the fi. fa. issued thereon, and the sale made thereunder were void. That the court continued the case, and rendered the judgment more than twenty days after the issuing of the summons, did not render the proceeding valid.</p> <p>6. In complaint for land, where plaintiff and defendant both hold under a common grantor, the title in him need not be proved.</p> <p>7. The verdict is right.</p>

<p>[Hall, Juatiee, being disqualified, Judge Hutchins, of the Western Circuit, was designated to preside in his stead.]</p> <p>An insurer obtained from a life insurance company an ordinary life policy, the character of which plainly appeared in print, both on the margin and in the body of such policy; he paid the premium thereon for ten years, but when called on for the eleventh annual premium, he filed a bill against the company, alleging that its. agents had represented to him, and he believed, that his application was for a ten year paid-up policy, when in fact it was for an ordinary policy; that the company issued and delivered to him an ordinary life policy when he believed it to be a ten year paid-up policy; complainant sought to compel the issuance of a paid-up policy, or to rescind the contract and recover the premiums paid by him:</p> <p>Held, that by the use of reasonable diligence he could have had knowledge of the truth, and equity will not relieve him against the results of his own gross neglect.</p>

<p>1. Where, after the death of a land-owner, his estate, which was of less value than $500.00, was set apart as a year’s support for his widow and three children by her, without mentioning two children of the decedent by a former marriage, and the persons to whom the year’s support was so set apart took exclusive possession of the property under claim of title, this constituted a severance from the other children, and a prescriptive title began to run; and if that claim, accompanied by such possession, was continuous, adverse, open, notorious and peaceable for the statutory period after the excluded children became of age, then the prescription ripened into a perfect title, unless it originated in fraud to which the claimants, were parties, and which was kept concealed from the adverse parties without laches on their part.</p> <p>(a.) Adverse possession against a co-tenant may begin to run after actual ouster, or exclusive possession after demand, or express notice of adverse possession.</p> <p>(6.) Although the proceedings may have been irregular, the judgment purporting to vest the title in the applicants for a year’s support was color of title on which prescription could be based.</p> <p>(c.) Fraud will not be'presumed from the mere omission from the proceedings of the names of some of the children who lived with their grandparents, and for whose support provision had been made by the decedent.</p> <p>Jackson, C. J., concurred.</p> <p>Buandeoed, J., dissented.</p>

<p>A will appointed the wife of testator as his executrix, and contained the following item: “I will that all the rest of my real estate property, including the house and lot I now occupy and a house and lot I own in Lawrenceville, together with my lands, be held and controlled by my wife during her lifetime. I would also include whatever money and notes I may own. In short, it is my will that my wife shall have full and entire control of all my effects, of whatever kind.” The testator having died, the will was probated, and the executrix qualified. She filed a bill, alleging that the rents, issues and profits of the estate were not sufficient for the support of herself and the six minor children of the testator, and prayed that she be allowed to sell the same or a portion thereof for such support.</p> <p>Held, 1. That the will does not confer on the executrix the power of sale.</p> <p>2. That the will creates a life estate in the widow, with remainder to the children of the testator; and it is competent for the life tenant to waive the life estate in the property devised; this would vest the whole estate in the children; and it would be in the power of a court of equity to decree a sale of the whole or a part of the property for the support, education and maintenance of the children and the support of the widow. The court could hear evidence as to the probable value of the life estate, and decree to the widow such sum as would be equal thereto, and could, by proper order, protect the remainder for the use of the children, or decree that the sum be turned over to the guardians of the minors and to those children who have become of age.</p> <p>(a.) An amendment should be made specifically setting forth the property constituting the estate held by the widow, and stating her willingness to surrender her life estate.</p> <p>(6.) It seems to be the policy of the law to provide for the support of the widow and minor children, and the courts should in all proper ways forward and carry out this policy.</p>

<p>1. The judge who tried the case committed no errors in the various rulings and charges to which exception has been taken by the defendant below; nor was there error in the finding of the jury upon the questions thus submitted.</p> <p>2. The court should not have refused to submit to the jury the issue made by the defendant’s claim to a prescriptive title, and should have charged, as requested, that “color of title is anything in writing purporting to convey title to the land, which defines the extent of the claim, it being immaterial how defective or imperfect the writing may be, so that it is a sign, semblance or color of title; and if they should be satisfied from the evidence that the defendant was in actual, public, continuous, peaceable, notorious and uninterrupted possession of the premises for seven years prior to the commencement of the suit under such color of title, and that her claim did not originate in fraud, and that she held in her own right, in good faith, against all other persons, including her husband; then she was entitled to retain possession of the land.” There was some evidence on which this charge could be based, and it should have been given, together with proper instructions, applying hypothetically to the assumed facts, and the jury should have been further instructed as to what constittited fraud and bad faith, and should have been told that if these things existed, defendant had no right to hold the premises.</p>

Municipal Corporations. Streets. Pavements. Constitutional Law. Taxes. Assessments. Before Judge Hammond. Fulton Superior Court. October Term, 1883.

<p>Criminal Law. Charge of Court. Murder. Adultery. Before Judge Bower. Dougherty Superior Court. April Term, 1888. ,</p> <p>Reported in the decision.</p>

Deeds. Title. Practice in Supreme Court. Charge of Court. Before Judge Bower. Worth Superior Court. April Term, 1883. Hull brought suit against Harris on a promissory note for $5,000, with certain credits thereon, made by the defendant to J. S. Linton or bearer, on December 28,1871, and indorsed by Linton.