Volume 71 — Georgia Reports

<p>1. Unless a judgment is void, an affidavit of illegality is not the proper mode of setting it aside. If the defects alleged to exist in a judgment or decree amount only to irregularities, they should be corrected by a motion for that purpose made in the com t which rendered it.</p> <p>2. Where a proceeding originates in the court of ordinary, and calls upon executors and administrators to account, a citation is all the pleading that is necessary; and it would seem that this proceeding is a substitute for a bill to account and settle in equity, as that court has, by express enactment, concurrent jurisdiction for the purpose.</p> <p>3. The complaint that the decree in this case is indefinite and uncertain is not well founded. It is clear and definite as to all its material parts; indeed it is redundant.</p> <p>(a.) A judge who happens to be related within the fourth degree to an auditor, is not disqualified from awarding him costs in the case. This ground of disqualification is applicable alone to parties, and the auditor is no party to the case.</p> <p>(b.) Besides, this execution did notissue for the auditor’s costs, but only for the amount awarded to the plaintiff, and this question was neither raised in the court below, nor is it before this court</p>

<p>Wills. Estate's. Tenants in Common. Liens. Mortgages. Before Judge Hansell. Decatur Superior Court. May Term, 1883.</p> <p>Reported in the decision.</p>

<p>A farmer, desiring an advance, applied to a firm, who agreed to let him have it if he would secure the note therefor by a mortgage on his mules and farming implements, and would also get Ms son to indorse the note and secure the indorsement by a mortgage. It was further agreed that the debtor should send to the factors his crop when made. The” note was indorsed and given, the mortgages delivered, and the advance made. During the year, the factors marie other unsecured advances to the debtor. He delivered his crop to them, which they sold; by agreement, he also delivered to them the mortgaged mules, which were likewise sold; the money thus raised was applied by the factors to the payment of the unsecured claims, and they proceeded to collect the entire secured advance:</p> <p>Meld, that the intention of the parties was that the proceeds of the mortgaged mules should be applied to the note, and this was equivalent to a direction as to the application of the. fund.</p> <p>(a.) Whether the proceeds of the crop should be applied to the payment of the indorsed note depends upon the intention of the parties at the time the contract was made; and that was a question for the jury.</p>

<p>Removal of Causes. United States Courts. ' Attachment. Claim. Before Judge Simmons. Macon Superior Court. June Term, 1882.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. Before Judge Fain. Cobb Superior Court. November Term, 1882.</p> <p>Reported in tbe decision.</p>

<p>Equity. Injunction. Railroads. Taxes. Continuance. Counties. Before Judge Mershon. Ware County. At Chambers. May 9, 1883.</p> <p>Reported in the decision.</p>

<p>1. The evidence is ample to support the verdict, if the jury believed the testimony for one side and disbelieved.the conflicting testimony of the other, which they had the right to do.</p> <p>2. A debtor may elect which of two debts he wishes a fund, to pay; if he does not so elect, the creditor may apply the fund to either debt.</p> <p>3. An agent cannot exceed his authority, and if he gives the creditor notice of its extent by telling him what the principal directed him to say to the creditor, then outside agreements beyond the scope of his authority made by the agent with the creaitor, unless ratified by the principal, will not bind him.</p>

Contracts. Actions. Debtor and Creditor. Parties. Negotiable Instruments. Before Judge Branham. Eloyd Superior Court. March Adjourned Term, 1883. Suit was brought on a draft by the payee, for the use of the drawers, against the acceptors, and a recovery was had.

Contracts. Debtor and Creditor. Charge of Court. Practice in Superior Court. Before Judge Roney. Lee Superior Court. March Term, 1883. Wheaton proceeded to foreclose a mortgage against Ansley at the March Term, 1882, of Lee superior court. The defendant pleaded the general issue.

Negligence. Bailments. Damages. Hiring. Before Judge Fort. Sumter Superior Court. April Adjourned Term, 1883. Haynes brought case against Hawkins. On the trial, the evidence showed, in brief, as follows : One McElroy, an agent of Hawkins, hired of Haynes a horse, for the purpose of driving to the plantation of Hawkins, which was thirteen or fourteen miles distant from Americus, the starting point.

•John Thomas -was indicted for the murder of Lindsey Weaver. The body of the indictment is set out in the decision. The evidence for the state showed, in brief, the following facts : On December 25, 1882, defendant was drunk; he rubbed against Weaver, cursed him, and seemed determined to have a difficulty with him.

<p>Guardian and Ward. Principal and Surety. Bonds. Before Judge Bower. Dougherty Superior Court. April ■ Term, 1888.</p> <p>Reported in the decision.</p>

New Trial. Trustees. Estoppel. Corporations. Attorney and Client. Before Judge Erwin. Gwinnett Superior Court. September Term, 1882. This litigation has been to the Supreme Court in different forms three times, and will be found reported in 62 Oa., 73 ; 64 Id., 726; and 65 Id., 674. After the last decision, the complainant amended his bill.

Railroads. Damages. Negligence. Torts. Actions. Parties. Before Judge Clarice. Terrell Superior Court. May Term, 1883.

<p>1. The declarations of a partyin possession in favor of his own title are admissible to prove adverse possession.</p> <p>2. In a contest concern ng the title to land betwen an executor and certain persons claiming to be donees of th»testator under a verbal gift, accompani.d by delivery of possession an 1 the erection of valuable improvements, o le of the pe-sons so claiming was incompetent to testify in his own favor, either as to the e”tire case or as to the character of the improvements made on the land since the testator’s death.</p> <p>3. It is on y in cases of intestacy that parties can claim advancements or be compelled to account for them.</p>

<p>1. One who makes a contract for the purchase of land, with a person assuming to act as agent of the owner, and subject to the approval and ratification of this latter, and who goes into possession under the contract, which is never ratified by the owner, is a tenant at sufferance, and is subject to be dispossessed by the statutory process against a tenant holding over, after possession has been demanded and refused.</p> <p>2. There was evidence to justify the jury in finding that the land in controversy was redeemed by the owner after the tax sale thereof. All the issues pertaining to this question were properly submitted to the jury, and it is unnecessary to determine whether the defendant, as tenant, had a right to purchase and have a conveyance made to him under the tax sale.</p> <p>3. A tenant at sufferance, after demand made and refusal to deliver possession, is liable for rent like any other tenant holding over; and where the execution of a warrant for his removal is arrested by counter-affidavit, and the issue thus formed is found against him, he is liable for double rent.</p>

<p>Bankruptcy. Homestead. Liens. Bes Adjudicata. Continuance. Practice in Superior Court. Claim. United States Courts. Before Judge Bower. Sumter Superior Court. October Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. It is not an open question here that, where a judgment below was consented to by the party complaining thereof, his writ of error will be dismissed.</p> <p>2. Unless the judgment excepted to be final, or would have been final if ruled as desired by the excepting party, there can be no writ of error. While the case is pending below, it canno be brought here unless the judgment here would finally dispose of it as respects the plaintiff in error.</p> <p>3. Therefore, where an equity cause against two joint defendants was referred to a master in chancery, and on exceptions to his report, was dismissed as to one of the defendants, but remained pending as to the other, this was not a final adjudication to which the complainants could except; and if complainants then consented to a dismissal of the case as to the remaining defendant, it was a volunta; y judgment from which a bill of exceptions would not lie at their instance.</p> <p>(a.) The refusal to dismiss as to a defendant may be ground of exception by him, because if ruled as he desked, the case would have been finally disposed of as to him; aliter as to a complainant who pursues two or more, and a dismissal is had as to one.</p> <p>4. Parties cannot give premature jurisdiction to the Supreme Court by consenting to a final judgment in the court below.</p> <p>5. A bill being filed to open a decree founded on a settlement or 'agreement in which a trustee either defr uded or colluded with his successor, and influenced him to get the consent of parties in int?rest, both were necessary parties, and a voluntary dismissal as to one would render it impossible to prosecute the case against the other.</p> <p>6. The whole case being out of court, exceptions pendente lite cannot be filed.</p>

<p>1. After the judgment of the Supreme Court has been pronounced, and the remitter has been issued and transmitted to the court below, and there received, the jurisdiction of this court ceases, and a motion to alter the judgment pronounced cannot be entertained.</p> <p>(a.) Semble, that before the remitter has been sent to the court below, but after the judgment dismissing a case has been made up and entered, a motion to reinstate may be made and allowed dur-. ing the term, in providential cases, but not otherwise.</p> <p>2. Where, in an action joint, in its nature, a dismissal was granted by the court as to one of the defendants, this finally disposed of the joint case, and the plaintiff might bring the judgment of dismissal to this court in order to restore the joint action below, to which he was entitled. But where, after a dismissal as to one of two joint defendants by the court, counsel for plaintiff or complainant voluntarily dismissed as to the remaining defendant, and thus terminated the case, and rendered it impossible for this court to restore the first defendant to the joint case from which he was dismissed, the writ of error will be dismissed.</p>

Actions. Statute of Limitations. Before Judge Cars-well. Scriven Superior Court. May Term, 1883. Colding brought suit against Williamson in 1882.

<p>1. Where one made a conditional sale of personal property, retaining the title in himself to secure the purchase money, a failure to record the contract within thirty days, as required by Code §1955 (a), did not render the property subject to a judgment which had been rendered in favor of a third party against the vendee of the personalty prior to the making the sale. As to such a judgment creditor, the failure to record the contract of sale was immaterial.</p> <p>2. The judgment being affirmed, the cross-bill of exceptions is dismissed.</p>

<p>Statute of Limitations. Guardian and Ward. Before Judge Simmons. Houston Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

Criminal Law. Indictment. Riots. Evidence. Before Judge Port. Dodge Superior Court. November Adjourned Term, 1883. McRae was indicted, with others, for the murder of J. Q. Howard. He demurred to the indictment on the ground, among others, that the court at which it was returned was illegally convened, being at the time to which the session of court had been adjourned .by the judge by telegram to the clerk.

<p>Thveats of prosecution alone do not amount to that violence which constitutes robbery, except where the threat is to prosecute for an unnatural crime; hut if such threats or accusations are accompanied by force, and the property or money is given up in conse- ' quence of this force, the transaction is robbery.</p>

<p>Verdict. Decree. Practice in Superior Court, Practice in Supreme Court. Before Judge Hutchins. Oconee Superior Court. January Term, 1883.</p> <p>Reported in the decision.</p>

<p>Corporations. Municipal Corporations. Charters. Constitutional Law. Streets. Laws. Estoppel. Before Judge Hammond. Fulton Superior Court. April Term. 1883.</p> <p>Reported in the decision.</p>

<p>1. This court will not interfere with the verdict of a jury where there is evidence to sustain it, and the judge who tried the case is satisfied with it, unless there has been some misapprehension of their duty made manifest, or it appears that some right has been denied the defendant, orunless improper bias or prejudice on their part is evident. But the strength of the present case is much weakened by the character of the evidence, and it appears that this trial has not developed the whole truth.</p> <p>2. Dying declarations constitute one of the exceptions to the rule which rejects hearsay evidence. Their admission is Funded oh the necessity of the case and the reason that, being made in view of impending death and judgment, when the hope of life is extinct and the retributions of eternity are at hand, they stand upon the same plane of solemnity as statements made under oath. They are admissible only when made by a person in the article of death who is conscious of his condition, and then only in cases of prosecutions for homicide, and for the sole purpose of showing the cause of death and the person who committed the act; and great caution is necessary, not only in the admission, but in the use of this ltird of testimony.</p> <p>(a.) The case at bar falls short of the requirements necessary to make dying declarations available.</p> <p>(5.) The court must judge of the preliminary evidence in the first instance. If he deems it prima facie sufficient, he should admit the declarations, instructing the jury afterwards to pass finally for themselves on the question, whether or not the declarations were conscious utterances in the apprehension and immediate pruspect of death.</p> <p>3. That prior to a homicide two messages were brought by little boj^s to the deceased, purporting to come from the defendant, to the effect that the deceased should come to the place of defendant, that “they were ready for him,” was inadmissible, the messengers not being introduced and no effort being made to find them.</p> <p>(a.) Statements and conversations between others, in defendant’s absence, distinct from any conversations shown by the defence, and of which the defendant was not notified, were inadmissible; statements concocted in advance as part of a projected scheme of crime cannot be introduced by the party making them, in his own behalf, though they maybe proved by the opposite party to show premeditation and preparation.</p> <p>(6.) Where a witness reached the scene of a conflict in a very few minutes after the deceased fell, and assisted in bearing him away, and when they had gone about thirty or forty steps the wounded man asked the witness, ‘ ‘What did you shoot me for ?’ ’—the whole transaction not occupying more than five minutes—such facts were a part of the res gestx.</p> <p>(c.) The practice prescribing the order in which testimony shall be introduce d is for the convenience of the court, and may be modified as he deems proper for the advancement of the ends of justice.</p> <p>4. To lay the foundation for admitting the testimony of a deceased witness, it must have been given on a former trial upon substantially the same issues, and between substantially the same parties; then any one who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he was called to testify, is a competent witness for this purpose.</p> <p>(a.) A substantial and not a literal compliance with these conditions is all that is required. Where a witness testified that he remembered “the substance of the material part of her (the deceased witness’s) testimony affecting the case, but couldn’t say that he remembered the entire substance of all she said,” he was a competent witness, and his testimony was admissible.</p> <p>(J.) At most, the competency of the witness was only doubtful, and in such cases the well established practice is to admit the evidence, and allow the jury to pass upon the circumstances affecting its competency in determining its credibility and weight.</p> <p>5. Where the deceased and other members of his family had acted in concert in a series of aggressions extending through several days, and acts and thr :ats on their part had been communicated to the prisoner and done in his presence, other like acts 'and threats on the part of one of the persons so acting with the deceased were admissible to explain the prisoner’s conduct and account for the motive with which he ultimately acted, although these special acts and declarations were not communicated to the prisoner and were not in the presence of the deceased.</p> <p>6. A party has a right to make a thorough and sifting cross examination of the witnesses called against him. Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations. Such appears to have been the purpose here, but to have avowed it would have defeated the object in view.</p> <p>7. The court should have charged the jury as requested, that “if they had areasonable doubtas to whether Ben Mitchell (the defendant) acted, when he shot, under circumstances calculated to excite the fears of a reasonable man, or whether he felt at the time he shot, and had reason to feel from the circumstances, that it was necessary to shoot to save his own life, limb or person, thou he was justifiable.”</p>

<p>Municipal Corporations. Tax. Laws. Before Judge Bower. Dougherty County. At Chambers. August 27,1883.</p> <p>Reported in the decision.</p>

<p>Practice in Superior Court. Kon-Suit. Amicus Curies. Practice in Supreme Court. Before B. E. Abbott, Esq., Judge pro Jiao vice. Fulton Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>Fertilizers. Contracts. Fraud. Before Judge Clark. City Court of Atlanta. March Term, 1883.</p> <p>Reported in the decision.</p>

Criminal Law. Evidence. Forgery. New Trial. Before Judge Hammond. Fulton Superior Court. April Term, 1883. Hagar was indicted for forging and uttering an order in the following words: “Wm. Maddox, pay by $3.00 dollars for me, oblige Wm.

Witness. Evidence. Debtor and Creditor. Statute of Limitations. Before Judge Willis. Muscogee Superior Court. May Term, 1883. .Wooten and Taliaferro, as executors of C. B. Taliaferro, deceased, brought suit against Flournoy & Epping on a promissory note, for $1,482.20 principal.

<p>1. If two attorneys, representing three litigants, collected a fund, and. one with the knowledge and approbation of the other, paid out the full amount to which two of the litigants were entitled, and paid to the other attorney the full amount of his fee for services rendered to the three clients from the amount remaining as the share of the third one, who was a trustee, this would be a diversion of the trust fund to the extent of two-thirds of the fee so deducted, and the attorney receiving the same could be sued jointly with the trustee, if the latter joined with him in the misapplication, or separately.</p> <p>(a.) The consent and ratification of the trustee would not avail to discharge the party misappropriating the money from liability to the cestui quo-trust; if he ratified with knowledge of the facts, he might render himself also liable.</p> <p>(b.) The request contained in the thirteenth ground was covered by other portions of the charge.</p> <p>(c.) Although a request to charge may state correctly an abstract principle of law, yet if it be inapplicable to the case, it should be refused.</p> <p>2. There was no error in refusing to dismiss the declaration on the ground that it showed that the action was barred by the statute of limitations. The statute was pleaded; the question was submitted to the jury; and no exception was taken to the finding on that subject.</p> <p>3. Where a sum o£ money had been recovered by two attorneys on behalf of three joint litigants, one of whom was a trustee, and after his death his successor brought suit against one of the attorneys on account of an alleged misapplication of part of the recovery which belonged to the trust estate, another of the former litigants was a competent witness to testify as to conversations between ■ the attorney and the deceased trustee; but the attorney was not competent on his own behalf to testify what passed between himself and such trustee.</p> <p>4. Where suit was brought by a trustee, and no plea denying that he was such was filed, it was not error to admit the order appointing him, although the petition therefor did not set forth the instrument creating the trust.</p> <p>5. An original record of the superior court in another county than that of the suit cannot be proved by an attorney who claimed to have obtained its custody under an order of the judge of that court. The proper evidence is an exemplification of the record certified by the clerk. Any one who saw the original and knew the handwriting thereon could testify that it was in the handwriting of the person sought to be charged with it, if it were necessary.</p> <p>6. Receipts for money are only prima facie evidence of payment, and may be denied or explained by parol. It was, therefore, not error to permit the maker of a receipt in evidence to explain the items in it, or to cast up the various amounts and testify to the sum total for which it was given.</p> <p>7. An affidavit of illegality made by one person is not admissible to charge another and distinct person with the liability therein stated.</p> <p>(a.) Nor was such affidavit admissible to impeach the attorney who drew it, when he had testified from his own knowledge to facts happening previous to its making.</p> <p>8. If answers are intelligible without the interrogatories on which they are based, they may be read without reading the questions.</p> <p>9. The judge having charged fully on the subject of credibility and weight of testimony, properly refused to charge a requ'est to the effect that the jury should be controlled by the sworn evidence, and not by the unauthorized statements of counsel, voluntarily made, reflecting on the character of a party to the cause.</p> <p>10. A witness may be impeached by showing that he has sworn differently about the same matters at different times; and testimony to show that a witness failed on a former trial of the same case to prove material facts to which he swore on a second trial, was admissible.</p> <p>11. It is unusual practice to read to the jury testimony tending to impeach a witness, and then withdraw the same aird publicly abandon the effort, but it did no harm in this case, and was no ground for new trial.</p>

<p>Wills. Estates. Trusts. Administrators and Executors. Legacies. Title. Levy and Sale. Remainders. ■Prescription. Before Judge Hammond. Fulton Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

Ordinary. Pences. Elections. Oounty Matters. Constitutional Law. Before Judge Pottle. Wilkes Superior Court. November Term, 1883.

<p>Administrators and Executors. Principal and Surety. Judgments. Before Judge Fain. Dade Superior Oourt. March Term, 1883.</p> <p>Reported in the decision.</p>

Practice in Superior Court. Discontinuance. Dismissal. Statute of Limitations. Before W. A. Hawkins, Eiq., Judge pro hae vioe. Macon Superior Court. May Adjourned Term, 1883. On October 31,1881, Rountree biought complaint against Key on a note dated January 4, 1875, due one day after date.

<p>1. A person may be a bona fide purchaser of land, notwithstanding he purchased with notice of the lien of a judgment. Such notice is only prima facie evidence of mala fides, and may be rebutted by showing good faith toward the judgment creditor, and is a circumstance to be considered with other evidence on the question of the bona fides of the purchase and possession.</p> <p>(a.) Previous cases reviewed. 42 Qa., 250; 56 lb., 617; 64/6., 706; 6916., 712.</p> <p>2. The verdict being required by the law and facts, a reversal will not he granted for an error in the charge.</p> <p>3. Where a cause of objection to a juror is known to parties, and they either intentionally or by negligence or forgetfulness, fail to avail themselves of it before, they will not he heard to complain after the verdict.</p>

Practice in Supreme Court. New Trial. Railroads. Damages. Negligence. Before Judge Harden. City Court of Savannah. November Term, 1882. Mrs. Lavier brought suit against the Central Railroad for the homicide of her husband caused by the running of its engine and» cars. The jury found for the plaintiff $6,000.00. Defendant moved for a new trial because of alleged errors in the charge, because the verdict was contrary to law and evidence, and because the damages were excessive.

<p>The constitution does not require that the title of an act should contain a synopsis of the law, but that the act should contain no matter variant from the title. If the title is descriptiAre generally of the purposes of the act, it is sufficient, and it is not necessary that it should particularize the several provisions contained in the body of the act.</p> <p>(a.) This provision grew out of the "Yazoo act.”</p> <p>(&.) An act the title of which was to prohibit the sale of intoxicating liquors Avithin certain limits, Avas. not unconstitutional as containing matter different from the title because it provided that no intoxicating liquors, plantation bitters, or other intoxicating bitters sold under the name of patent medicine, should be sold within . such limits.</p> <p>2. An act should not refer to more than one subject matter.</p> <p>(a.) An act prohibiting the sale and vending of spirituous liquors may declare what are such liquors; and such declaration does not ' render the act unconstitutional as referring to more than one subject matter.</p> <p>(6.) It would be competent for the legislature to pass a general law prohibiting the sale of intoxicating liquors; and the- fact that they have confined such inhibition to certain localities, though widely separated, does not render it unconstitutional.</p> <p>(c.) The practice of the various departments of the government, as a means of collateral interpretation, is not to be rejected by the courts in passing on the constitutionality of a law.</p> <p>(d.) A law will not be set aside as unconstitutional unless its conflict with the constitution is plain and obvious.</p> <p>(e.) This case differs from those in 51 Ga., 571; 61 lb., 20. Those cases held that separate corporations could not be chartered by one act. The present act provides a police regulation.</p>

<p>Wills. Legacies. Estates. Comity of States. Laws. Husband and Wife. Trusts. Inheritance. Before Judge Stewart. Newton Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

. Streets. Alleys. Title. Boundaries. Husband and wife. Evidence. Railroads. Eminent domain. Before Judge Hammond. Fulton Superior Court. October Term, 1882. To tbe report contained in the decision, it is necessary to add only the following: The Cincinnati & Georgia Railroad, under its charter (Acts 1880-1, p. 250), proceeded to condemn a lot held by Mrs. Mims for life, with remainder to her children, under the will of her mother, Mrs. Ford.

Justice Courts. Laws. Before Judge Pottle. Richmond Superior Court. April Term, 1883. Lawton sued Thomas in the 398th district, G. M., justice court, said district being situated in the city of Augusta. Thomas pleaded to the jurisdiction of the court, alleging that, although he resided within the limits of the city of Augusta as they existed in 1834, he did not reside in the 398th district, G. M. This was admitted byplaintiff.

<p>A foreign insurance company did business in South Carolina and Florida, but none in Georgia, and had no agency in the latter state. An agent of the company resided in Georgia, who audited and approved claims arising in South Carolina and Florida, gave checks for amounts due on account thereof, and when in funds, sometimes paid them:</p> <p>Held, that the courts of Georgia had no jurisdiction of the company; and upon the facts above stated, a garnishment served upon the agent residing in this state was properly discharged.</p>

<p>The board of commissioners of Bibb county cannot exercise any . greater power or authority as to opening private ways over private lands than is granted generally to the ordinaries of the state; and they have no power to grant private ways to individuals except to go from and return to their farms and residences. The grant of a private way to a brick-yard is unauthorized.</p> <p>(a.) Before the right of eminent domain can be exercised by ordinaries or county' commissioners, it must be clearly conferred by legislative enactment.</p> <p>(5.) The constitutional provision that in cases of necessity private ways may be granted, upon just compensation being first paid by the applicant, was not intended to confer upon ordinaries or county commissioners power to grant private ways; nor did this provision confer power upon the legislature; but its object was to restrict the legislature in its grants of power to ordinaries and county commissioners to cases of necessity and upon just compensation.</p>

Criminal Law. Before Judge Roney. Burke Superior Court. November Term, 1882. Thomas was indicted for perjury.

Charge of Court. Practice in Supreme Court. Practice in Superior Court. New Trial. Before Judge Simmons. Houston Superior Court. April Term, 1883. Cubbedge sued Holdridge for services in selling a lot for the latter. Defendant denied liability, and asserted that his connection with the property was only that of an agent, which was known to plaintiff, and that the property had since been sold by the owner himself without the intervention of plaintiff.

<p>Nuisance. Process. Equity. Decree. Olerk of Superior Court. Before Judge Clark. Terrell Superior Court-May Term, 1883.</p> <p>Reported in the decision.</p>

<p>Municipal Corporations. Damages. Negligence. Streets and Sidewalks. Before Judge Harden. City Court of Savannah. May Term, 1883.</p> <p>Donnelly brought case against the Mayor, etc., of Savannah to recover damages to himself and his horse, caused by falling into an excavation or ditch on one of the streets of the city. The evidence showed that plaintiff was riding along Bay street, a populous thoroughfare, about seven o’clock p. iff., when his horse went into a ditch which had been dug nearly across tlie street for the purpose of connecting a water main with a private building, and had only been partially filled up; that this ditch had been dug by one Masters, a licensed plumber, under a permission from tlie health officer of the city, which specified that the work should be completed between sunrise and sunset on September 26,1882, and that the earth should be well lined when the ditch was closed. The municipal ordinances touching the regulations of the water works and water pipes were introduced, and also testimony to show that Masters had given a bond for the faithful performance of his duty as a plumber, and to show the extent of the injury, which it is unnecessary to set out in detail.</p> <p>The jury found for the plaintiff $1,500.00. Defendants moved for a new trial on the ground, among others, that the court refused to charge the request set out in the decision. The motion was overruled, and defendants excepted.</p>

New Trial. Criminal Law. Before Judge Adams. Chat-ham Superior Court. March Term, 1883. Major Lee was indicted for the murder of Elbert Lee.

Deeds. Title. Contracts. Judgments. Liens. .Yendor and Purchaser. Before Judge Hammond. Fulton Superior Court. April Term, 1883. v A fi. fa. in favor of McDuffie against T. M. Elyea was levied on a lot which was claimed by Bell. The claimant relied upon the instrument made by Elyea to Cooper, which is set out in the decision, and which was dated October 2,1874, while the judgment of plaintiff was rendered October 9.

Criminal Law. Larceny. Before Judge Hammond. Fulton Superior Court. April Term. 1883. Defendant was indicted for larceny after trust. The evidence showed, in brief, as follows: He desired to go from Atlanta, Georgia, to Jacksonville, Florida, and purchased from one Shelton a ticket for that purpose. The ticket was a round-trip ticket with coupons for passage from Chicago to Jacksonville and return.

<p>Judgments. Contracts. Torts. Constitutional Law. Before Judge Hammond. Cherokee County. At Chambers. October 24, 1883.</p> <p>Covington et alt filed their bill against McAfee et alto enjoin the sale of certain property claimed as homestead property. Subsequently, by amendment, it was alleged that the sheriff had offered the property at public outcry, that it was bid off by certain purchasers, and the sheriff would proceed to put them in possession unless injunction issue. The controlling facts were as follows: In 1867, a judgment in a trover case for a mule was rendered against Covington. In 186'9 he took a homestead.under the constitution of 1868, and subsequently went into bankruptcy; but the creditor did not prove the claim. The execution founded on this judgment was subsequently levied on the homestead, and it was claimed that the homestead was subject, because otherwise the homestead act of 1868 would impair the obligation of a contract, and be obnoxious to the constitution of the United States. (Art. 1, sec. 10, par. 1.)</p> <p>The chancellor held that a judgment based on a tort was not a contract, and granted the injunction. Defendants excepted.</p>

Criminal .Law. Charge of Court. Continuance. Before Judge Adams. Liberty Superior Court. May Term, 1883. Poppell was indicted for assault and battery. When his case was called, neither of his two counsel were present, and defendant employed a third, who moved for a continuance or postponement until the next day, because of his recent employment and want of preparation, and because the defendant relied on his original counsel being present. This motion was overruled.

Criminal Law. Jurors. Constitutional Law. Officers. Witness. Charge of Court. Before Judge Mershon, Charlton Superior Court. April Term,jL883. David McLain was indicted for the murder of William F Sexton. The evidence showed, in brief, the following facts: McLain’s mother claimed certain improvements on land as belonging to her. She had formerly lived there^ but bad moved, and at the time of the homicide Sexton was in possession.

Mortgage. Contracts. Attorney and Client. Practice in Supreme Court. Sheriff. Before Judge ITansell. Brooks Superior Court. May Term, 1883. Walter brought a rule against the sheriff to distribute a fund in his hands.

<p>1. Where the ground of an affidavit of illegality was that the execution was issued in 1870, and no entries had been made thereon within seven years, there was nothing that could not be determined on the face of the execution returned with the affidavit, and the ground of illegality was not defective, because it stated that the affiant was “ advised and believed” that the execution was proceeding illegally.</p> <p>2. Where an affidavit of illegality stated that the fi. fa. was issued more than seven years before the date of the levy, and that there had been no entry thereon for more than seven years, it was sufficient. If there was anything dehors the record to relieve the execution from the operation of the statute, it should be shown on the trial of the issue formed upon the affidavit.</p> <p>3. While new and distinct grounds cannot be added to an affidavit of illegality, unless the defendant will swear that he did not know of such grounds when the original affidavit was filed, amendments of a different character, which only alter grounds already filed, may be made without such statement. -</p> <p>(a.) Questions not made in the court below will not be decided by this court.</p>

Practice in Superior Court. Injunction. Trespass. Water-courses. Damages. Parties. Before Judge Estes. Lumpkin Superior Court. April Term, 1883. Graham filed his bill against the Dahlonega Gold Mining Company and the Etowah and Battle Branch Gold Mining Company, alleging, in brief, as follows: Complainant is the owner of certain lots in Lumpkin county of the value of $10,000.00, principally valuable for mining and mineral purposes, but also valuable for farming purposes.

<p>1. The act of 1876, authorizing' the governor to lease the convicts of this state to the penitentiary companies, is constitutional and valid.</p> <p>2. The contracts of lease made by the governor with the penitentiary companies are valid and binding, both upon the state and the companies.</p> <p>3. The joint resolution of the general assembly of this state, of 1883, authorizing the principal keeper of the penitentiary- to turn ovei two hundred and fifty convicts to the Marietta & North Georgia Railroad Company, is unconstitutional and void, first, because it impairs the obligations of the contracts made by the state with the penitentiary companies; and, second, because the state cannot part with the police power of the state over the convicts.</p> <p>4. Under the act of 1876, the Marietta & North Georgia Railroad Company was entitled to have the service of two hundred and fifty convicts for three years; and after said railroad company has had the service of two hundred and fifty convicts for three years, the penitentiary companies are entitled to the same, and the railroad, company is entitled to no more, unless the railroad company can bring itself within the proviso of the act of 1876, by showing that, as an incorporated railroad company, at the time when the act of 1876 was passed, it was working convicts on its road, and was entitled to a re-leaso of convicts. Whether the railroad company, as such, by authority of the state, was working convicts when the act of 1876 was passed, and whether it applied for and made a contract of release of convicts from the state before the state leased the convicts to penitentiary companies 1, 2 and 3 for twenty years, are questions of fact to be ascertained by the jury on the trial of this case.</p> <p>(a.) That a court of equity has the power to enjoin the railroad company from receiving, and the principal keeper from delivering, convicts, and, upon final decree, to require the railroad company to deliver up the convicts in its possession, should the railroad company fail to establish its right to receive any more, and should it be determined that the railroad company has had the service of two hundred and fifty for three years.</p> <p>(b.) That the injunction heretofore granted in this case be so modified as to enjoin the principal keeper (Nelms) from delivering, and the railroad company from receiving, any more convicts, until its right, to receive more shall have been established by law.</p> <p>(c.' That complainants enter into bond, with security, conditionted to pay the railroad company any damages which it may sustain on account of the service of convicts which may hereafter be turned over to complainants, in the event that the railroad company shall establish the fact that it was entitled to the service of such convicts.</p> <p>(d.) That complainants may amend their bill on the trial of this case, and have any claim for damages determined which they have heretofore, or may hereafter sustain, on account of the loss of service of convicts received by the railroad company to which it was not entitled.</p> <p>5. Under the contracts between the state and the penitentiary lessees, the lessees have a vested right to the labor of the convicts so leased, and the legislature has no power, under the constitution and laws of this state, to deprive the lessees of this right to the labor of the convicts thus leased.</p> <p>6. That the police powers of the state over the convicts leased to the penitentiary companies are reserved and secured, by the terms of the contracts of lease, to the state, so that the state has entire control over the moral and physical condition of the convicts, a d can make all needful and necessary regulations 'as regards the safekeeping, feeding, clothing, and medica treatment of the convicts.</p> <p>7. Under the act of 1876, persons leasing convicts are called corporations, in the manner and for the purposes specified in the st'tute. The state has the right to create an agency to aid it in the enforcement of the criminal law by having the convicts confined, guarded and worked at hard labor in terms of the sentences of the courts; and the state having in this manner, for its own benefit, contracted with such persons, could not take advantage of the fact that they are called corporations, and the railroad company claiming rights subordinate to the rights of the state, can take no advantage of the same.</p> <p>(Head-notes by the court.)</p>

<p>New Trial. Practice in Superior Court. Practice in Supreme Court. Before Judge Brown. Floyd Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

<p>Criminal Law. New Trial. Before Judge Bower. Mitchell Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

<p>Criminal Law. . Trespass. Larceny. Before Judge Fort. Schley Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

Mortgage. Title. Cboses in Action. Merger. Equity. Liens. Before Judge Adams. Chatham Superior'Court. March Term, 1883. B. B. Eerrill, receiver, and Mrs. Louisa C. Banks filed their bill against G. A. Wilkins and Joseph Clay, alleging, in brief, as follows: Mrs. Banks filed her bill for alimony against her husband, Charles IT. Banks, and sought to have applied for that purpose a note and mortgage which her husband held against Wilkins.

<p>The grant of an injunction was error. There was nothing in this case to warrant the restraining of parties in possession of land from the free use of it and the ore thereon. There was no charge of insolvency as to the claimant of the title; and no notice of the claim of complainants was shown.</p> <p>(a.) Though one may hold a bond for titles to land, with purchase money paid, if a subsequent deed be made by the same vendor to a purchaser for value and without notice, and it is recorded in proper time, it will take precedence.</p> <p>(6.) Equity will not restrain waste, except upon unquestioned evidence of complainant’s title; and where the defendant is in possession under adverse title, or where complainant’s title is not clear, the relief will be refused.</p> <p>(c.) Prescriptive title being shown by the holder of lamj, an injunction will not be granted to restrain the free use thereof and of the minerals thereon; especially where complainant’s title is not-free from doubt.</p>

<p>1. In an action of trover where bail is required, if the sheriff fails to seize the property, arrest the defendant or take oond, as required by the statute, he cannot, by an order of c >urt. be charged as special bail, and have judgment entered against him as such bail along with the defendant in the suit.</p> <p>2. In an action of trover, if an affidavit for the purpose of requiring bail was filed in the office of the clerk, but the latter attached the original, iustead of a copy, to the declaration and process, it was not such a defect as entitled the defendant, on motion, to have the hail process dismissed.</p> <p>3., The following instrument was given, accompanied by possession of the mule, which was then loaned to the maker of. the instrument to make his crop for the year 1881: “ Know all men by these presents that I (C. C. Dozier), for a good and valuable consideration to James L. Dozier, (who) has this day signed my noth to Welch Á Bacon for the sum of seventy-two dollars and ninety-one cents, as security; now in the event I fail to pay said, note at maturity and the said James L. Dozier has it to pay, I promise and by these presents agree that one iron grey'mule, about five years ■old and named Bill, shall be delivered to said James L. Dozier; and for and in consideration of five dollars to me in hand paid, I do by these presents deliver and convey to said James L. Dozier all right and title to said mule</p> <p>Held, that such instrument, consummated by actual delivery of possession, conveyed title, and was not a mere mortgage; and trover could he maintained upon it against any one claiming to derive title from the party to whom .the property had been hailed for a specific purpose, and who, according to the contract, was hound to restore it when the purpose for which it was bailed was accomplished.</p> <p>(a.) It is not material to decide whether this was an absolute or conditional hill of sale, nor to consider the other questions made.</p>

Wills. ' Legacies. Bes adjudioata. Judgments. Estoppel. Before Judge Brown. Cobb Superior Court. November Term, 1883. Selman, as guardian of W. H. and J. D. Cleckler, brought his action against Cheney, executor of Shadrach Jackson, alleging, in substance, as follows: Shadrach Jackson died testate.

Mortgage. Witness. Liens. Before Judge Fort. Macon Superior Court. May Adjourned Term, 1883.

Contracts. Estates. Title. Mortgages. Municipal Corporations. Savannah. Forfeitures. Equity. Before Judge Adams. Chatham Superior Court. March Term, 1883.

<p>Futures. Contracts. Gaming., Public Policy. Promissory Notes. Before Judge Boney. Bichmond Superior Court. October Adjourned Term, 1882.</p> <p>The National Bank of Augusta brought complaint against Cunningham on a promissory note for $3,500 due twelve months after date, by defendant, to Warren, Wallace & Company, or order, and indorsed by them. Defendant filed the pleas set out in the decision, which were stricken on demurrer, leaving only the plea of the general issue of file. A verdict was rendered for the plaintiff, and defendant excepted.</p>

<p>Eailroads. Damages. Negligence. Master an_ Servant. Venue. Witness. Evidence. Charge of Court. Before Judge Branham. Pike Superior Court. October Term, 1882.</p> <p>DeBray brought suit against the Central Eailroad on account of an injury which .happened to him while employed by defendant as an extra train-hand. The facts are sufficiently stated in the first division of the decision. The jury found for the plaintiff $4,700.00. Defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the verdict was contrary to law and evidence.</p> <p>(2.) Because the evidence failed to make out the case of the plaintiff as alleged in his declaration.</p> <p>(3.) Because the court ruled out a portion of the answer of W. A. Tinsley to the third' direct interrogatory, as follows : “ And any person with ordinary care could have gotten off over the skids where plaintiff did without being hurt.”</p> <p>(4.) Because the court raled out a portion of the answer of W. A. Tinsley to the eleventh cross-interrogatory, as follows: [The witness testified that it was usual for a brakeman to jump off a moving train to couple cars, when told to couple, and then added the sentence ruled out]— “ but he does it at his own risk and the risk of his life.”</p> <p>(5.) Because the court ruled out a portion of an answer of R. Schmidt to a cross-interrogatory, as follows: “ He does so at his own risk,” [that is, gets off a moving train, if so ordered by the conductor.]</p> <p>(6.) Because the court ruled out a portion of an answer of R. Schmidt to a cross-interrogatory, as follows: “ A person using ordinary care can pass over them (referring to skids lying between the track) with perfect safety. It is true that a person can, with ordinary care, get off or on a moving train passing over such skids with perfect safety. It is habitually done.”</p> <p>(7.) Because the court erred in ruling and deciding as follows : A. J. White, a witness for defendant, stated that he was president of the Macon & Western railroad for about nine years, commencing in 1865, and while he was president he made and had printed about one-third of the rulebook that was put in evidence by the plaintiff, the balance of the book being made since he went out of office (which rule-book plaintiff proved by R. Schmidt was in force at the time plaintiff was injured). This rule-book does not contain all of .-the orders and instructions that are given to employés, but certain general rules for their guidance. Defendant then proposed to prove by White that no conductor or other officer had the right to order an employé to get off or on a moving train, and if such order was given, the employé could not be required to obey it.—The court ruled that, as the witness did not know what the rules were at the time of the accident, and proposed to testify what they were at the time he was in office, he could not do so, and rejected the evidence.</p> <p>(8.) Because the court erred in ruling and deciding as follows: Defendant proved by A. J. White that he was an expert in all the departments of railroading, and then pro_ posed to prove by him that no employé was required to get off or on a moving train, and that neither the conductor nor any other person could require him to do so, and if such order were given, the employé would not be required to obey it.—This proposed proof was rejected by the court.</p> <p>(9.) Because the court erred in ruling and holding as follows: A. J. White testified that the lantern plaintiff used was furnished him that he might see how to perform his duties with safety to himself; that he knew the character of the lantern. Defendant then offered to prove by the same witness that a person in getting off a train could, by the light of the lantern, readily see any object near the track; which proposed proof the court rejected.</p> <p>(10.) Because the verdict is excessive, it being for an amount much larger than the plaintiff would be entitled to recover under the evidence.</p> <p>(11.) Because the verdict is contrary to the following charge of the court: “If you believe from the evidence that plaintiff got off the car in a careless manner that was calculated to throw him to the ground, and if the manner of getting off contributed to his fall, he cannot recover.”</p> <p>(12.) Because the verdict is contrary to the following charge of the court: “If you believe from the evidence that plaintiff could have remained on the train until it was stopped, and if you believe he got off while the train was in motion, and if you believe that such act was at his own risk, then he cannot recover.”</p> <p>.(13.) Because the verdict is contrary to the charge of the court: “ If you believe from the evidence that the plaintiff knew the cab on which he was would stop near where he had to do his work, and if you believe plaintiff could have got off at such a place with perfect safety, and if you believe plaintiff got off before the cab reached that place, and while the car was in motion, and if you believe from the evidence that plaintiff took the risk of getting off the moving train, then he cannot recover, no matter how you construe the direction given the plaintiff by the conductor.”</p> <p>(14.) Because the verdict is contrary to the following charge of the court: “ If you believe from the evidence that the manner of getting off the train contributed in any way to his injury, then plaintiff cannot recover.”</p> <p>(15.) Because the verdict is contrary to the following charge of the court: “ If you believe from the evidence that plaintiff was furnished with a lantern for the purpose of enabling him to perform his duties; that it was his duty to use the care of a prudent man in trying to discover whether or not there were obstructions near the track, and if you believe from the evidence that the plaintiff, by a prudent use of his lantern, could have discovered and avoided the obstructions, and if he failed to use his lantern with the care of a prudent man, then he cannot recover.” (16.) Because the court refused to charge the following request: “If plaintiff contributed, either immediately or remotely, directly or indirectly, to his injury, then he cannot recover, regardless of the position of the skids or any other negligence of defendant’s agents.”</p> <p>(17.) Because the court refused the following request: “ And although you may believe that the plaintiff was directed by the conductor to get off at the place where he left the car, while the car was in motion, he cannot plead the order of the conductor as an excuse for the act, if the act was one attended with danger and the doing the act put him in fault. The order of a superior could not pro-: • tect him.” "</p> <p>(18.) Because the court refused the following request “ It would be the duty of an employé connected with the running of a freight train to know what tools, implements, or appliances are used in conducting the business of handling freights, and where such tools, implements .or appliances are kept; if kept at any particular place, or at or about any particular locality, and if plaintiff was a train-hand on defendant’s train, and if the defendant had kept short skids for their use and kept them at or near a certain place, it was the duty of the plaintiff to look for them, and he would be charged with a knowledge of their presence at such a place.”</p> <p>(19.) Because the court refused to charge the following request: “ If to do the freight business it was necessary to !keep a pair of short skids for the use of the hands employed to handle the freight, and if it was' necessary for the proper handling of freight to keep the skids between .the main and side tracks, then if the skids were kept for ■such purpose and in a usual and customary place, plaintiff ■-cannot recover.”</p> <p>(20.) Because the court refused to charge as follows: •“ If, among different modes of performing his duty, some -of which were safe, 4he plaintiff chose one less safe or more dangerous, he took the risk of his choice, although -other servants did likewise; and if you so believe, plaintiff cannot recover.” But the court modified the request as .follows: “ If among different modes of performing his duty, some of which were safe, the plaintiff chose one less . safe or more dangerous, then you will take this circum-stance into consideration with all the other facts in the case, in deciding whether the plaintiff was at fault or not. It is for you to determine from the evidence whether .plaintiff took the risk in getting off.”</p> <p>(21.) Because the court refused to instruct the jury as .follows: ;<If you believe from the evidence that skids were kept between the main and side tracks before and ..at the time plaintiff was employed by the defendant, and if you believe they were necessary in order to perform 'the work of discharging or receiving'freight, then plaintiff assumed the risk of the premises as he found them.”</p> <p>(22.) Because the court instructed the jury as follows: “ If you believe from the evidence that skids or planks were placed on or near the track of defendant’s road where the injury complained of occurred, and that such planks or skids occasioned said injury to the plaintiff while performing liis duties in obedience to orders and Avithout fault or neglect on his part, then I charge you the defendant would be liable.”</p> <p>(23.) Because the court charged as follows: “If the conductor directed the plaintiff to get off the train while it Avas in motion, and he got off while in the performance of his duty as he was directed to do, then the defendant is estopped to deny the plaintiff’s right to get off, and •cannot set up as a part of his defence the claim that plaintiff was not bound to obey the conductor’s orders.”</p> <p>(24.) Because the court charged as follows:' “ If it appears from the plaintiff’s evidence that defendant was negligent, the onus is on the defendant to show that the plaintiff is also at fault, in order to defeat a recovery.”</p> <p>(25.) Because the court charged as follows: “If the plaintiff has shown that he was not at fault, then the defendant must show that the injury did not result from the want of ordinary and reasonable care on the part of his servants- and agents.”</p> <p>(2G.) Because the court charged as follows: “If the exercise of ordinary care and diligence required the defend, ant’s agents and servants to place the skids, after using them, on the platform, or some other place than the point where they were left, and-if the defendant’s agents and servants neglected to do so, and left the skids on the ground between the tracks at the point Avhere the plaintiff got off, and if this Avas not the usual and also a proper place to leave the skids, or if they were placed in an unusual or negligent position there, then the plaintiff, if he was injured by reason thereof and was without fault, Avould be entitled to recover—there being no evidence to warrant such charge.</p> <p>(27.) Because the court charged as follows: “Special damages are such as actually flow from the act, and 'must be proved in order to be recovered, such as the surgeon’s or doctor’s bills, the cost of nursing and medicines;” —there being no testimony to warrant such charge.</p> <p>The motion, was overruled, and defendant excepted.</p> <p>The body of the charge given by the court, omitting instructions as to the measure of damages, the form of the verdict, etc., was as follows :</p> <p>“The plaintiff brings his action on the case, laying his damages at forty thousand dollars, and says that on the 11th of September, 1880, defendant was running its train over the railroad in this county, and that he was employed by the defendant thereon as a train-hand, and that the defendant, in consideration of his employment, was bound to protect him against injury arising from the carelessness, neglect or improper conduct of its other employés, and from all defects in its road; that plaintiff, while engaged on the train on the day named, as a train-hand-under J. 0. Waller, the conductor thereon, and when he had reached Barnesville, was ordered by Waller to get off the train vuth him and couple certain cars, then on the side-track at said station, to the train, when the tram was run back on the side-track. That when the order was given and when he stepped off, the train was running slowly, and he could have stepped off with safety, if the railroad had been then and there unobstructed. That it was then 11 o’clock at night, and the darkness was so great he could not see any obstruction then and there on the road. That he stepped off as ordered, expecting tc plant hi - foot on level ground, but instead thereof, struck a pair of skids, three by ten inches wide and nine feet lo.ng, placed one upon the other, which the defendant carelessly and negligently permitted to he left upon its roadside, when the skids ought to have been on the platform at the depot, and when it was the duty of 'the defendant to have kept the road free from obstructions. That the skids turned and threw him, without his fault, under the rear car of the train. That he was permanently injured thei-eby. That his arm was cut off, and had to be amputated a second time to save his life; and that be suffered great pain, and still suffers by reason of the injury ; and that his health is impaired thereby. That he was a young man twenty-three years old, a machinist, capable of making a hundred dollars a month; that his ability to labor has been greatly diminished; and that he has been compelled to expend large sums of money for surgical and medical treatment and nursing. To this action the defendant flies the general issue, which is a general denial of the plaintiff’s cause of action, and makes the issue which you are to try. The defendant also claims that the plaintiff’s duty did not make him get off a moving train. That he was not hound to obey the conductor, when ordered to get off the train while it was in motion, and if he did get off, .he did so at his own risk. (2.) That he got off at an improper place, in an improper manner and in an unskillful way, and in such a way as to be thrown by the impetus given his body by the motion of the cars. (3.) That skids were at their accustomed and proper place, in between tKe side-track and the main track, lengthwise the road, opposite the side-door of the depot. (4.) That he was provided with a lantern, and by a proper and reasonable use of it could have seen how to get off, and could have gotten off safely, and that he negligently used his lantern. (5.) That plaintiff did not fail on the skids, and that piainriff .was injured by his own fault, and not by defendant’s negligence.. That plaintiff's fault contributed to the injury; and that, for these reasons, plaintiff cannot recover. The plaintiff replies that he was not at fault, and that his fault did not contribute to the injury, hut that his injury was the result-of defendant’s negligence. This is the question for you to try. I will first give you in charge some requests made by counsel for plaintiff and defendant., (The court then charged, at request of plaintiff) : It is the duty of railroad companies in this state to keep their tracks clear oi objects and structures which unnecessarily expose to danger their employé¡ in the execution of their duties, and if, in consequence oi neglect of that duty, an employé, who is without fault, is injured, the company would be liable for the injury. If you believe from the evidence that skids or planks were plaqed on or near the track oi defendant’s road where thé injury complained of occurred, and that said planks or skids occasioned said injury to the plaintiff while performing his duty in obedience to orders, and without fault or neglect on his part, then I charge you the defendant would he liable to the plaintiff, without an order from the conductor, was in the usual discharge of his customary duties, and was injured without fault or negligence, and he was free from fault, and was injured by the fault or negligence of the company or his co-emp’.oyés, then he may recover. (This closes plaintiff’s requests.)</p> <p>. (The court then charged, at the request of defendant:) “If you believe from the evidence that the plaintiff got off the car in a careless manner that was calculated tc throw him to the ground, and if the manner of getting off.'caused him his fall, he cannot recover. If you believe from the evidence that the plaintiff got off tho train while in motion, and was hurt, and if you believe that such an act was one not required by the railroad company, hut if it was an act in -which the plaintiff took the risk of his act, then he cannot recover. If you believe from the evidence that plaintiff.eould have remained on the train until it was stopped, and if you believe .from the evidence that he got off while the train .was in motion, and if you beiieve from the evidence that such an act was at his own risk, then he cannot recover. If you believe from the evidence that plaintiff knew that the car on which he was would stop near where he was to perform his work, and if at such place he could have gotten from the car with safety, and if plaintiff got off before the train reached that point, and while tho train was in motion, and if you believe from the evidence that plaintiff'took the risk of getting off tho moving train, then he cannot recover, no matter how you may construe the directions given the plaintiff by the conductor. In determining whether the plaintiff was directed by the conductor to get off at the place where he did, you will look to the evidence to see where the plaintiff’s work was to be performed that the conductor required of him, and to all the evidence touching the order given him by the conductor, and in this way deter mine whether the directions given him by the conductor merely indicated to him where he was to work, or if it was an order to him to get off at that place where he left the car.</p> <p>“The law is that railroad companies shall not keep unnecessary ob. stacles on or near the track. This does not mean that the track must be kept absolutely clear of every obstacle, but simply that no unnecessary obstacles shall be left on or near the track. In determining whether the keeping of skids between the main and side-tracks was reasonable or unreasonable obstructions, you should look to the necessity for keeping them at that place, and the length of time the practice had been to keep them at that place, and whether or not they had ever proved to be unnecessary obstructions, and from all the facts say whether the keeping of the skids between the main and side-tracks was an unreasonable obstruction. If you believe from the evidence that the manner of plaintiff’s getting off the train contributed in any way to his injury, then plaintiff cannot recover. If among different modes of performing his duty, some of which were safe, the plaintiff chose one less safe or more dangerous, then you will take this circumstance into consideration with all the other facts in the case, in deciding whether the plaintiff was at fault or not. It is foi; you to determine from the evidence whether the plaintiff took the risk of getting off. If you believe from the evidence that the railroad company employed a surgeon of good reputation to treat the wound of the plaintiff, then the defendant is not liable for unskillful surgery, nor could the unskillful surgery increase the claim of plaintiff for damages against the railroad company. If you believe from the evidence that plaintiff refused to have his hand amputated until gangrene had set in, and if you believe from the evidence that such a delay revented a proper amputation at first, and produced the necessity for a second amputation, then the railroad'company could not be held liable for the pain and suffering of such second amputation. If you believe from the evidence that plaintiff was furnished with a lantern for the purpose of enabling him to perform his duties, then it was his duty to use the care of a prudent man in trying to discover whether or not there were obstructions on the track. And if you believe from the evidence that plaintiff, by a prudent use of his lantern, could have discovered and avoided the obstructions, and failed to use his lantern with the care of a prudent man, then he cannot recover. (This closes defendant’s requests.)</p> <p>If the plaintiff is shown to have been injured by defendant’s cars, and if he was at that time an employé of defendant, engaged with others on running and operating the train, and the injury was occasioned thereby, then in order to make a prima facie case against defendant, the plaintiff must show one of two things, either that the defendant was negligent or that he was without fault. If it appears from the plaintiff’s evidence that defendant was negligent, then the onus is on defendant to show that the plaintiff was also at fault, in order to defeat a recovery. Tf the plaintiff has shown that he was not at fault, then the defendant must show that the injury did not result from a want of ordinary and reasonable care and diligence on the part of its servants and agents. An empioyé of a railroad company cannot maintain an action for a personal injury, unless he himself is free from fault. Any substantial fault, however slight, which contributes to the injury for whicn he sues will defeat his action. To recover, he must be blameless. If the exercise of ordinary and reasonable care and diligence required the defendant’s agents and servants to place the skids, after using them, on the platform of the de* pot, or at some other place than the point at which they were left, and if the defendant’s servants and agents neglected to do so, and left the skids on the ground between the tracks at the point where the plaintiff got off, and if this was not the usual place and also a proper place to leave the skids, or if they were placed in an unusual and negligent position there, then the plaintiff, if he was injured by reason thereof, and was without fault, would be entitled to recover.</p> <p>“You will determine from the evidence whether the plaintiff was subject to the conductor’s orders, and bound to obey them, or not, and also what order the conductor gave, if any; whether it was to get off the train while the train was in motion or after the cars had stopped. If the conductor directed the plaintiff to get off the train while it was in motion, and he got off in performance of his duty, as he was directed to do, then the defendant is estopped to deny the plaintiff's right to get off, and cannot set up as a part of its defence the claim that the plaintiff was not bound to obey the conductor’s orders. And if in getting off the train, if he so got off while it was in motion, in obedience to orders, without fault on his part, he fell against the skids and was injured thereby, and if the skids were improperly and negligently placed at that point by defendant’s agents or servants, then the plaintiff would be entitled to recover. But if the plaintiff was at fault in getting off the cars while in mqtion, when he ought not to have done so, or was negligent in getting off in an improper or unsafe manner, or if in not using his lantern with proper or reasonable care, or in any other way, and his fault or negligence contributed at all to his own injury, then he cannot recover. Unless the plaintiff was free from fault, he cannot recover, even though defendant’s agents may have been negligent. But if he was free from fault, and the negligence of defendant’s agents caused the injuiy, he would be entitled to recover. The court cannot express or intimate an opinion as to what was or what has not been proved. Negligence is a question for the jury. And you are to decide whether it was the duty of defendant’s servants and agents to have placed the skids, after using them, on the depot platform or at some other point than that at which they were left, and in what position they were left, and whether the defendant was negligent in leaving the skids on the ground at the point where the plaintiff got off, if they were left there, or in any other way, and whether this or any other act of the defendant’s servants or agents was the cause of the plaintiff’s injury, or whether it resulted from plaintiff’s own fault, in getting off the train when he ought not to have done so, or in getting off in an improper or unsafe manner, or in not using his lantern with practical and reasonable care, and whether his own fault contributed in any way to his own injury.”</p>

<p>1. Ina suit by a widow against a railroad company for the homicide of her husband, in case of a recovery, she may recover the full value of the life of the deceased, as shown by the evidence, The onus is upon the plaintiff to establish the amount of damage which she is entitled to recover, and one element of such proof is the number of years the deceased would.probably have lived. If there is no proof on this point, the plaintiff has failed to make out a case, and the verdict should be for the defendant.</p> <p>2. There being no evidence to show that the person killed was drunk or in such a condition of intoxication as to put the engineer on notice of the fact in time to have checked his engine, charges based on that hypothesis were erroneous.</p> <p>3. When a personal injury has been shown to have been done by the locomotives, or cars, or other machinery of a railroad company, or by any person in its employment or service, the presumption is against the company, but it may defeat a recovery by establishing either of the following defences: That its agents have exercised all ordinary and reasonable care and diligence to avoid the injury; that the damage was caused by the negligence of the person injured ; that he consented to it; or that the person injured, by the use of ordinary care, could have avoided the injury to himself, although caused by the defendant’s negligence. If both the person injured and the agents of the company are at fault, there may be a recovery, but the damages are to be diminished by the jury in proportion to the default of the injured party.</p> <p>(a.) Railroad companies are entitled not only to a clear track, but to the unobstructed use of all the means indispensable to the discharge of their duties. But while the obligation of the company to a trespasser on its track may not be the same as to passengers, employés or other persons having business with it and whose presence there is authorized, or even to persons who were there by its consent as a favor or gratuity; still, one who places himself upon its road, even in violation of the statute, does not forfeit all right to have its agents regard his personal security or life, or exempt it from liability for injury, if, by the exercise of proper precaution on its part, the casualty could have been avoided.</p> <p>(6.) If a person appears upon a railroad track in a helpless condition, and the engineer and his assistants discover him in time to stop the train before reaching him, but recklessly, or even incautiously, neglect to do so, the company would be liable in damages, in proportion to its own default and that of the other party.</p> <p>(c.) This case distinguished from Central Railroad vs. Brinson, 70 6a., 207.</p> <p>(d.) The facts of this case did not warrant a recovery against the defendants.</p> <p>Jackson, C. J., (Blandford, J., joining him) concurred specially as follows:</p> <p>1. There is no invariable rule for estimating the value of a life. Age, health, habits, money made by one’s labor, furnish data from which such value may be decided by a jury. Tables of the probable length of life and its probable worth may be useful, but are not conclusive or absolutely essential for tliai purpose.</p> <p>2. Sections 3034 and 2972 of the Code are in pari materia, but not identical. They provide for separate defences to suits against railroads. Thefirst applies where the person injured causes the injury to himself, or consents thereto; the second applies where the consequences of the present or antecedent negligence of the defendant are impending, but may be avoided by ordinary care on the part of the other party. Both include the doctrine of contributory negligence, and provide for a recovery in part, in case the negligence of both parties contributed to the injury.</p> <p>'3. Railroad companies are liable for injuries resulting from want of all ordinary and reasonable care in all cases, in general, and for the want of extraordinary care in the case of passengers and others under their care. What is ordinary and reasonable care depends on the facts of each case.</p> <p>■4. Merely to walk upon the track of a railroad is not an unlawful intrusion in such sense as to be an indictable offence under §§4437, 4438 of the Code.</p> <p>■ 5. No opinion is expressed on the facts of the case.</p> <p>6 Reversal is concurred in because the charge probably confused the jury, and justice demanded a new trial.</p>

<p>Corporations. Payment. Promissory Notes. Evidence. Principal and Agent. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>Actions. Demand. Attorney and Client. Onus probandi. Witness. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1883.</p> <p>Reported in the decision.</p>

Laws. Fences. Railroads. Damages. Negligence. Before Judge Stewart. Spalding Superior Court. February Term, 1883. ' Amanda Hamilton brought suit in the county court of Spalding county against the Central Railroad, for the value of a cow killed by the defendant’s train. Plaintiff recovered a judgment, and defendant appealed to the superior court.

<p>A draft was drawn, by a Ann on an individual, and accepted; suit was brought against the drawers and acceptor; service was perfected upon the acceptor and one of the drawers; the other was absent from the state, and was not served, nor was any return of service made as to him; judgment was rendered by default against the parties served; the acceptor became a bankrupt, and there were no Arm assets of the drawers; the drawer who was not served having returned to the state, suit was brought against him on the draft:</p> <p>Held, that by the weight of authority at common law, this liability would be merged in the Arst judgment, but not so in Georgia. In Georgia, judgments so obtained bind the partners or joint contractors served, and the partnership assets, but not the members who were not so served. As to their individual estates, they stand as ' though no judgment had been rendered in a suit upon the paper to which they were parties. Therefore, the partner not served was liable to bo sued upon the draft upon his return to the state.</p> <p>(a.) The fact that no, return of non est inventus was made as to the defendant on whom no service was perfected, did not operate so as to cause a merger of his liability in the Arst judgment.</p> <p>(5.) This case differs from that in 35 Oa., 72.</p>

Contracts. Warranty. Charge of Court. Statute of Frauds. ..Before .Judge Pottle. Warren Superior Court. April Term, 1883. J 8. & W. H. Latimer brought complaint against Johnson on an open account, containing but one item, viz: “To first payment on one Monarch Separator, due on arrival, $212.50.” Defendant pleaded the general issue.

<p>1. An action on a parol renewal of an insurance policy is demurrable.</p> <p>2. An action on a policy of insurance, renewed or considered as renewed by parol, could not be amended, so as to recover against the insurance company for fading and refusing to renew the policy. .Such an amendment having been made, there was no error in dismissing the case on demurrer.</p>

Criminal Law. Continuance. Before Judge Hammond. DeKalb Superior Court. December Term, 1882. On December 19, 1882, Dowda was indicted for seduction. Held: and being confined, he had no opportunity to prepare his case. The court allowed a postponement of the case until noon of the next day, and ordered subpoenas to be issued for the witnesses, and that an officer be dispatched for them.

<p>1. On October 14,1879, a general law was passed, providing the manner in which counties and municipalities should hold elections to determine concerning the issue of bonds creating an indebtedness of such counties or municipalities, under the constitution of 1877, Art 7, sec. 7, par. 1 and 2; and a local act, passed thereafter, providing for the holding of an election in a particular county in a different manner, and with different notices and different voters in regard to registration, was contrary to the constitutional prohibition of local legislation in cases covered by an existing general law.</p> <p>2. Although a local act may have been passed prior to the passage of the general law, yet if it had failed to accomplish its object, and had ceased to be of force, and after the enactment of the general law a second act was passed, seeking to revive and continue the first in force, the latter was unconstitutional.</p>

Criminal Law. Witness. Evidence. Attorney and Client. Practice in Superior Court. Charge of Court. Before Judge Roney. Richmond Superior Court. April Term, 1883. Tom Green was indicted for burglary. On the trial, the evidence for the state showed, in brief, as follows : About half past nine o’clock, on the night of April 11,1883, one Bredenburg went through a bar-room in the city of Augusta to a water-closet in the rear.

<p>1. Where a married woman applies for a homestead, it must affirmatively appear from her petition that it is claimed out of her husband’s property; otherwise, the homestead granted to her will be invalid: aliter if the husband were the applicant, the presumption being in that case that the property is his.</p> <p>2. A married woman cannot have a homestead set apart out of her own property unless she is living separate and apart from her husband.</p>

Charge of Court. Payment. Executions. Attorney and Client. Estoppel. Witness. Before Judge Roney Burke Superior Court. November Adjourned Term, 1882. Wilkinson & Wilson foreclosed a mortgage against Wilkins, administrator of Pierce, and the fi.fa. was levied on the land described therein. Thigpen, who held a title under one of the heirs of Pierce, and under a distribution of his estate, claimed the property, and insisted that the mortgage fi. fa. bad been paid.

Contracts. Actions. Attorney and Client. Witness. Before Judge Harris. Coweta Superior Court. March Term, 1883. To the report contained in the decision it is only necessary to add that the following were among the grounds of the motion for new trial: (1.) Because the verdict was contrary to law and evidence.

Actions. • Damages. Negligence. Contractors. Principal and. Agent. Streets and Sidewalks. Atlanta. Before Judge Clark. City Court of Atlanta. December Term, 1882.

<p>1. There is no pleading in a justice’s court save the summons, to which the justice is required to attach a copy of the note, account or cause of action sued on, at the time the same is issued. ■</p> <p>(a.) Whether, on an appeal to a jury in a justice’s court, the justice has power to grant a non-suit. Quiere ?</p> <p>2. The evidence supported the verdict.</p> <p>3 The power to find interest in this case being a question of law, if the jury in a justice’s court erred in this regard, on certiorari, the error could be corrected by the judge, without remanding the case. The correction of this error did not hurt the defendant, and he has no right to complain of the judgment in his favor.</p> <p>(a.) No error is specifically assigned on this ground in the bill of exceptions.</p>

<p>Railroads. Damages. Negligence. Before Judge Eve. City Court of Richmond County. April Adjourned Term, 1883.</p> <p>Reported in the decision.</p>

Injunction. Judgments. Before Judge Hammond. Fulton Superior Court. October Term, 1883. Dromgoole filed Ms bill against Woodward, alleging, in brief, as follows: Complainant was living in Columbus, and received a letter from defendant, offering him a place near Atlanta, containing eighty-five acres, for $5,500.00. Complainant replied that he would come to see it, and did so. Defendant’s father-in-law conducted the negotiations.

<p>1. A sheriff’s deed based on a justice court fi. fa., upon which there is no entry of “ no personal property to be found,” is void, and conveys no title.</p> <p>'2. The officer making the levy upon realty could make the entry of no personalty nunc pro tunc, provided he was still in office; but in the absence of any effort to have this done, the sheriff’s deed was properly held void.</p>

Processioning. Practice in Superior Court. Evidence. Practice in Supreme Court. Before Judge Hammond. Clayton Superior Court. February Term, 1883. Morrow petitioned the processioners of the 548th district, G. M., to have the lines around his place surveyed and marked anew. The processioners made a return which stated that they had, together with the county surveyor, surveyed, traced and marked “a new line between H. L-Morrow and Alex.

<p>Where money was borrowed to pay off the balance of purchase money due for land embraced in a homestead, and was used for that purpose, and a note was given for the amount so borrowed, the homestead was subject to such debt.</p>

Practice in Superior Court. Administrators and Executors. Attorney and Client. Auditor. Master in Chancery. Wills. Estates. Evidence. Practice in Supreme Court. Before Judge Simmons. Houston Superior Court. April Term, 1883. . The facts stated in the fifth head-note and the decision report the case.

<p>Practice in Supreme Court. Advancements. Gifts.Parent and Child. Evidence. Witness. Before J. M. McNeill, Esq., Judge pro hac vice. Talbot Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

Interest and Usury. Statute of Limitations. Before Judge Hammond. Fulton Superior Court. April Term, 1883. Cheapstead brought suits in a justice of the peace court on five promissory notes given by Mrs. Frank, as principal, and Moses Frank, as security, to the order of one Guild, and indorsed by him. The cases were carried to the superior court by appeal, and consolidated.

<p>Criminal Law. Jurors. Verdict. Practice in Superior Court. Before Judge Hammond. Pulton Superior Court. April Term, 1883.</p> <p>Reported in tbe decision.</p>

Landlord and Tenant. Injunction. Equity. Before Judge Hammond. Pulton Superior Court. April Term, 1883.

Corporations. Banks. Actions. Pleadings. Assignees. Before Judge Clarxc. City Court of Atlanta. June Term, 1883. Hill et al., assignees, brought complaint in the statutory form against J. F. Nutting, as principal, and W. H. Nutting et al., as indorsers, on two promissory notes.

<p>Criminal Law. Bail. Principal and Surety., Before Judge Willis. Taylor Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

Nuisance. Trespass. Damages. Injunction. Before Judge Hammond. Fulton County. At Chambers. August 28, 1883. Holbrook, trustee, filed his bill against Lowe, trustee, alleging, in brief, as follows: Complainanc and defendant are owners of adjoining lots, on which are houses which were built two stories high, with a party wall between them.

<p>Wills. Legacies. Election. Equity. Infants. Before Judge Hammond. Fulton Superior Court. October Term, 1882.</p> <p>Emma J. Swann, William W. Austell, individually and as executor of Alfred Austell,, deceased, and Leila 0. Austell filed their bill against James Swann and W. J. Garrett, as executors of Alfred Austell, and against Alfred Austell, Jr., and Swann, as his guardian, alleging, in brief as follows: In 1878, Alfred Austell made his last will. He died in December, 1881, owing no debts. William W. Austell and his brother-in-law, James Swann, and W. J. Garrett were appointed executors, qualified, and are executing the will. After various bequests, the will, by its ninth item, directed the residue of testators estate to be sold or converted into money by his executors, at such times and places and under such circumstances as they might deem best, and the proceeds be equally divided between his children, share and share alike. The residue consists of eight bonds of the Atlanta City Brewing Company, dated December 1,1881, for $1,000.00 each, due December 1? 18S5, bearing eight per cent interest per annum, secured by trust deed on the property; fifteen bonds of North Carolina, bearing four per cent interest; eighteen bonds of South Carolina, bearing six per cent interest; four hundred and six shares of stock in the Atlanta National Bank; twelve hundred and fifty shares of the stock of the Spartanburg, Union and Columbia Railroad Company and about one-twenty-third of the Asheville and Spartanburg Railroad Company and its property. These securities are all desirable and valuable as permanent and safe investments, and if sold, the proceeds could not again be so well or profitably and safely invested; as permanent investments, they have become more desirable since the date of the will; they are worth more and are more desirable at their market value than any other securities that could be bought with the money, and it is to the interest of all the legatees under that item of the will that said property and securities should not be sold, but should be divided in kind. The prayer was that parties defendant be properly made, and a guardian ad litem be appointed for the minor, if his interest should conflict with that of his regular guardian; that the property be not sold, but be divided in kind by commissioners to be appointed for that purpose; that the executors be enjoined from selling the property and securities, and for general relief.</p>

Bankruptcy. Contráctil. Principal and Agent. Before Judge Simmons. Bibb Superior Court. April Term, 1883. E. 0. Grannis andMartba T. Wheaton (now Trammell) brought separate suits against Cubbedge, Hazlehurst & Co., and by agreement they were tried together. Each was based on a receipt of the form set out in the decision.

<p>All claims against counties must be presented by written demand to the ordinary, or county commissioners in session (when there are any), within twelve months after such claims accrue or become-payable, or the same are barred, unless held by minors or persons laboring under disabilities. Where it appeared from plaintiff's evidence that this requirement had not been complied with, a non-suit was properly awarded.</p> <p>(a.) Mere conversations with individual members of the board of commissioners, looking to a compromise of the matter, were not-sufficient.</p>

<p>1 Under the act of 1876 (acts 1876, p. 51), courts of equity alone have jurisdiction of suits for the recovery of property which had been set apart as a homestead and exemption, and which had been theretofore sold. Where ejectment was brought for such property, a prea to the jurisdiction was not demurrable.</p> <p>2. Where a homestead was set apart to the head of a family, under the laws of the state, and afterwards he was adjudged a bankrupt, and .the premises were sold by his assignee, and bought by a purchaser prior to 1876, to an action of ejectment brought for the recovery of the property, a plea to the jurisdiction of a court of common law was properly sustained.</p> <p>(<x.) It will not be presumed that the bankruptcy was involuntary, or that the proceedings therein were irregular.</p>

<p>The charter of a railroad company empowered it to condemn for right of way a stated number of feet in width of road-bed and on each side thereof, provided it did not interfere with any building. The company did not condemn any of the land of a land-owner on its line, hut constructed its road through his land, and used the road-bed only. He built a house upon that part of his land near the track, but not in the occupancy of the company, and remained in the peaceable and adverse possession of it continuously for about nine years, when proceedings were taken by the company to condemn the land to the full extent of the right of way, including that built on:</p> <p>HeW, that this could not he done.</p> <p>(o.) Charter rights antagonistic to rights of private property will be strictly construed; and their exercise must be in strict compliance with the law granting them.</p> <p>(5.) The right to condemn land on each side of the road-bed was a privilege which the company might exercise or not; and when it failed to exercise such right, the land-owner was not prevented from, using his land near the track.</p> <p>'c.. What a corporation first condemns, or buys, or takes as necessary for its franchise, it will he bound by as its election; and the charter rights wdl he thereby exhausted, so far as the then existing charter rrests it with power</p> <p>td.' A mere prescriptive title would suffice to bar the company from the right to condemn land on which a building had been erected.</p>

<p>Criminal Law. Yoting. Tax. Constable. Laws. Before Judge Cobb. City Court of Clark County. April Term, 1883.</p> <p>Reported in tbe decision.</p>

<p>Practice in Superior Court. Record. Judgment. Before W. K. Moore, Esq., Judge pro hoc vice. Gordon Superior Court. February Term, 1883.</p> <p>Reported in the decision.</p>

<p>1. Where, pending a bill in equity to collect an ind ibtedness, the defendants removed out of the state and were proceeding to remove all of their property, an attachment would lie in favor of the complainant; but equity having jurisdiction of the claim and the parties, full relief could be granted by it by injunction and receiver, in the nature of an equitable attachment.</p> <p>{a.) A demurrer, because of the existence of a common law remedy, should be filed at the first term.</p> <p>?«. Where, after the grant of an injunction and the appointment of a receiver under a supplemental bill, one of the defendants dissolved and vacated the order by giving the bond required, and made no further motion-for six years and until a decree was had on the original bill, he could not then demur to the supplemental bill, and move to vacate the order granted thereunder.</p>

Parties. Homestead. Actions. Before Judge Pottle. Taliaferro Superior Court. August Term, 1883. Mrs. Edwards, on behalf of herself and minor children,, sued out a possessory warrant against Tucker and Peck to recover a horse.

<p>Damages. Master and Servant. Contracts. Amendment. Before Judge Clark. City Court of Atlanta. December Term, 1882.</p> <p>Caudle brought Ms action against Austell & Rice on an open account, as follows:</p> <p>“Austell & Rice,</p> <p>“1881.</p> <p>To Thomas A. Caudle, Dr,</p> <p>“Nov. 1. To selling 50 tons Pendleton’s and Burgess’s' guano, at three dollars per ton,.....$150</p> <p>“Nov. 1. To amount sold by sub agents of Austell & Rice within territory of Thomas A. Caudle, 75 tons, at three dollars per ton,.....225</p> <p>$375.”</p> <p>He amended bis declaration by alleging that, by agreement with defendants, he was to have the exclusive right to sell guano for them within a certain territory, and was to receive $3.00 per ton for all he should sell; that he sold fifty tons; that they also permitted other parties named to sell guano within the agreed territory, who sold together seventy-five tons, for which he claims pay at $3.00 per ton.</p> <p>It is unnecessary to detail the evidence. The jury found for the plaintiff on the first count (the claim on account of guano sold by plaintiff) $21.90; on the second, $85.06, making a total of $106.96. Austell having died pending the action, it proceeded against Rice, surviving partner. He moved for a new trial, on the following among other-grounds :</p> <p>(1.) Because the amendment to the declaration was allowed, and evidence was admitted under it.—The objection was, that it set out a new cause of action.</p> <p>(2.) Because the court charged as follows: “If you believe, from the evidence, that the plaintiff and defendant made a contract, by which plaintiff was to have the exclusive right to sell guano for defendants within a certain territory, for the year 1881; and if you believe that defendants placed other agents within said territory, in violation of the contract, and that such other agents sold seventy-five tons of guano, or any number of tons, then the plaintiff would be entitled to recover of the defendants such damage as he may have sustained by reason thereof; and the measure of such damage would be $3.00 per ton on every ton sold by such agents—it being conceded in the case that by the contract the plaintiff was to receive $3.00 on each and every ton of guano sold by himself.”</p>

<p>Contracts. Principal and Agent. Brokers. Commissions. Before Judge Roney. Richmond Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>Title. Ejectment. Charge of Court. Pleadings. Evidence. Variance. Water Courses. Heeds. Title. Presumptions. Before Judge Lawson. Jasper Superior Court. April Term, 1883.</p> <p>W.G. Horsley brought complaint for land against James Benton. The land was described in the declaration as follows :</p> <p>■ “ Commencing on the west side of said creek, and northwest of the public bridge over said creek, on the road leading from. Wm. H. Preston to Madison, and about or near one hundred yards from the west end of said bridge, at the southeast corner of Wm. H. Preston’s creek-field fence, at high-water mark, and said line running with said Wm. H. Preston’s land line up said creek in a northwesterly direction, at high-water mark on the west bank of said creek, till it reaches the line of John Davidson, then across said creek with said David son’s line, in an easterly direction, to high-water mark on the east side of said creek, then down said creek at high-water mark on the highest line reached by high waters on the east side of said creek, till it reaches an oak tree on the abrupt jutting of the hill and termination of the creek bottom, on the east side, a few yards away and just above and up the creek from said public bridge, th'ence across the creek in a westerly direction to the starting point at the corner of Wm. H. Preston, where defendant has built and joined a fence to Wm. H. Preston’s fence, making, by estimation, about fifty acres, more or less.”</p> <p>By amendment, plaintiff added, as part of Ms abstract of title, a deed from Pou to plaintiff and Newton, described below..</p> <p>On tbe trial, plaintiff introduced the deed from L. W. Pou to plaintiff and L. B. Newton, dated January 15, 1869, which contained the following description of the land; Seven hundred and seventy acres, more or less, known as the Holland place, and</p> <p>“Also thirty acres of land, more or less, off of what is known as the mill tract, including the mill-seat, beginning at an old white-oak stump at the Holland bridge, on the road running from the old mill-seat to Wm. H. Preston’s, and running along Wm. H. Preston’s line to high-water mark on the west bank; thence up said creek on the west bank, at high-water mark, to John Davidson’s line; thence with Davidson’s line across said creek to the high-water mark on the east bank; thence down the east bank, at high-water mark of said creek, to a rock corner to be put up about .one hundred yards, more or less, above the old bridge, tience nearly east to a red elm tree on the-west side of the Madison road,” etc.</p> <p>Plaintiff also introduced a deed of settlement between bimselí and Newton, in which the latter conveyed to him his interest in the Pou lands, as above described. It was dated Feb. 18,1875.</p> <p>, This controversy was over what land was covered by the following words in the description: “thence with Davidson’s line across said creek to high-water mark to the east bank, thence down the east bank at high-water mark of said cr'eek, to a rock corner to be put up about one hundred yards, more or less, above the old bridge.” Plaintiff contended that under these words, the line ran off from the creek channel proper, described a curve, including the land in dispute, and came back to the channel of the creek at the rock corner. Defendant claimed that the above stated words meant for the line to run along the bank of the creek at a point where, under ordinary circumstances, the high-water of the creek reached, and not including this tract of land, but only the strip along the bank of the creek. Defendant claimed under a deed from L. W. Pou to W. C. Leverett, from Leverett to John Benton, and from the lat-. ter to defendant. These deeds conveyed to defendant all of the land which was east of the line fixed by the deed from Pou to Horsley and Newton, and were junior to it.</p> <p>The following parol evidence was introduced on behalf of plaintiff;</p> <p>. John Davidson testified: Has known land about sixty years. Has known it since Holland owned it; is acquainted with the lines. The “mill tract” does not join witness’s land, but the premises in dispute do. Does not know where high-water marks are ; can’t tell. The banks of the creek are higher near the creek than further off in the flat. Has seen the water overflow the bank and cover parts of the land claimed. Banks of creek are abrupt and high ; higher on east than on west side. Cultivated yearly on the west, within fifteen or twenty steps of the creek. Has known Pou to cultivate bottom in dispute. There is a low place in bottom some distance from creek. Has know water to back up in it when mill was running. P.ou cut ditches there. Mill has not been there for about thirty years. Horsley started to build a dam near where the road bridge is, and cut or partly cut a race. Can’t say whether mill-dam would back water over bottom or not. Don’t think it would. Might back water on a part of it. In his opinion, a mill would be useless without control of the bottom.</p> <p>Plaintiff testified: Bought land in controversy from Pou, .together with Newton, about 1868, as shown in Pou’s deed. 'Went into possession, and held jointly with Newton until 1875 then bought out Newton; then held exclusive possession until defendant or his brother put a fence on the bottom. Supposed at first they did not claim title, but merely w anted pasi urage. Did not know of any claim of title until the fall of 1881. The principal reason for purchasing .any land from Pou was for mill purposes ; and plaintiff ’would not have bought without this land. Asked Pou how much land lay above for purposes of a pond. He said he «did not know; that it was unnecessary to name the number of acres ; that “more or less” and “high water mark” ;and bounds would convey it, and that he was throwing it in, as he didn’t need it for pasturage. Witness asked him ihow far high-water mark extended. Pou replied, “Away ■up the hill-side, as far as witness wanted to goto back water .from the dam.” Exercised the same acts of ownership ■over bottom as over the other unenclosed land. In 1876 or 1877 spoke of fencing it in presence of Preston. The lat■>ter was excited, and said his cattle would have no pasturage, if this were done. He did not dispute title, and plain.tiff let it lie open as a matter of favor. Started to build a "dam, race and other improvements, in 1880, and expended about $800.00, but a freshet injured the work, and Newton 'having no funds, and plaintiff having already advanced heavily, the project was dropped, “else the waters would have been utilized, and the land in dispute covered by the mill-pond.” Witness detailed some conversation with W. J. M. Preston, in which he (plaintiff) asserted his right to the property, and Preston did not deny it. Did not know of Preston’s claiming the Pou place; he was not in possession.</p> <p>Wm. Barr: Does not know where nigh-water mark is. W hen creek was up last spring, went and stuck up stobs after the water had fallen about three inches. . That was about one hundred yards from east bank of said stream. Water did not cover the whole bottom, but most of bottom was covered. Some of the land near the creek was higher, and not covered. Bottom is valuable for pasturage. Defendant has built two fences running entirely across the creek, and joining the Preston fence on the west side.</p> <p>Defendant introduced the following parol evidence:</p> <p>W. C. Leverett testified: Has known land fifty years. Was shown to him by Holland when mill was there. Pine sugar-cane was then growing on it, while the mill was running. There is a low flat place at the east side of the bottom. The dam which Horsley started to construct, might back water some distance up that; not all over bottom. The side of land next to creek is higher. Don’t know where high-water mark is. All the land embraced in the plat would make about sixty acres.</p> <p>W. J. M. Preston testified: Bought land in controversy fromL. W. Pou; paid $1,000.00 cash; did not take deed to himself; deed was made to W. O. Leverett; lived with Pou on place in 1868; had bottom cultivated; had fence along line of bank of creek; knows he always claimed it; witness exercised acts of ownership over bottom and claimed it, and Horsley knew it, and never intimated that he claimed it. Denies conversations detailed by Horsley; land on east bank is higher than that on west; land on west has been long cultivated. The fence is within 10 or 20 steps of the creek. Does not think mill-pond would overflow land in dispute. Witness pastured stock on the land, and exercised the same control as over his other land, but did not fence it in, and allowed the stock of others to run on it. Entire amount embraced in diagram is sixty-five to seventy acres.</p> <p>O. M. Benton testified Has been in possession of lana in dispute. Witness obtained it from his father, who obtained it from Leverett. Witness has sold to his brother, the defendant, but has not yet made a deed. Never heard of any adverse claim until just before Horsley went to Texas. Witness got Horsley, brought him to the place and asked him to show the lines; he could not do it; he clid not claim the land in dispute; did not show any high-water marks; said he did not know them.</p> <p>The jury found for the plaintiff the premises in dispute. Defendant moved for a new trial on the grounds set out i'n the decision, “'kick was refused, and defendant excepted.</p>

<p>1. A citizen oí Alabama, doing work or furnishing materials in Georgia, hao the same remedies as a citizen o£ Georgia for like work done or material furnished, and may enforce his lien therefor under §§1979, 1980 of the Code.</p> <p>2. Although parties may have agreed in Alabama as to the price of lumber to be furnished for building a house in Georgia, no quantity of lumber being agreed upon, but the same being furnished according to bills subsequently forwarded by the vendee, and the lumber was to be delivered in Georgia, and was so delivered and used, the law of the place of execution of the contract controls, with respect to its construction and the remedies for its enforcement.</p>

<p>Attachment. Claim. Judgments. Interrogatories. Notice. Practice in Superior Court. New Trial. Practice in Supreme Court. Before Judge Hansbll. Brooks Superior Court. May Term, 1883.</p> <p>An attachment in favor of Gazan against Young was levied on certain mules, and a claim was interposed by Cecil & Thrasher. The case was carried to the superior court by appeal. On the trial, plaintiff introduced in evidence the attachment papers having thereon the .levy, verdict, judgment, and the judgment of the county court in the claim case, and proved possession in the defendant at the time of the levy. He also introduced testimony to show a conversation, after the levy, between Young and Thrasher, in which the latter spoke of saving the mules, if Young would fix up the papers.</p> <p>The claimants introduced a bill of sale from Young to them, conveying the mules, and bearing date some months before the levy. They also introduced testimony to the effect that the bill of sale was executed at the time it bore date to secure a debt; that on the day 'of levy, Thrasher carried Young before witnesses, before whom he acknowledged his signature, and who signed the instru: ment. Thrasher explained the conversation between himself and Young, by stating that if he was heard to say anything, it was that, if the papers were good, he would save the mules.</p> <p>The jury found the property subject. Claimants moved for a new trial, on the following grounds :</p> <p>(1.) Because the court erred in admitting in evidence the attachment papers in the case of .Gazan vs. Young, as evidence for the plaintiff, over objection by claimants, for the following reasons: 1st. Because they were irrelevant. 2d. Because no judgment had been issued on the attachment. 3d. Because a general judgment had been entered up, if any at all, when the pleadings required a special judgment; that is to say, a judgment against the property mvied on; and, 4th, Because there was an adjudication of the attachment case during the pendency of the claim case.</p> <p>(2.) Because the court erred in rejecting the interrogatories of Young, when tendered by claimants, notwithstand ing the fact that said interrogatories had been rejected by the court on the former trial, on objection by the same party for the same reason, when they were then tendered by claimants. [The objection was that the place of execution did not appear. No written objection was made.]</p> <p>(3.) Because the verdict of the jury was decidedly against the weight of the testimony.</p> <p>(4.; Because the said verdict was against the law and the evidence, and was without evidence to support it.</p> <p>(5.) Not certified.</p> <p>The motion was overruled, and claimants excepted.</p> <p>On the day after the argument of this case, a motion to dismiss the writ of error was sent to the clerk by mail. The ground was that the bill of exceptions had been withdrawn for service after being filed in the office of the clerk of the superior court.</p>

<p>There was no error in dismissing this bill for want of equity. The fee simple title to the property in question was put in Hunnicutt by the deed of June 20, 1867, from Payne to him, and there is no cloud on the title held under him.</p> <p>(a.) Were it otherwise, a court of equity would not reform a deed made by him individually, so as to convert it into a deed as trustee for certain cestuis que trust who never received any of the purchase money, nor were otherwise involved by the individual deed of their trustee.</p>

Judgments. Equity. Practice in Superior Court. Principal and Surety. Presumptions. Before Judge Hutchins. Clarke Superior Court. May Term, 1883.

<p>1. The first grant of a new trial will not be closely scrutinized to detect errors therein.</p> <p>2. The case was not fairly presented to the jury, and the grant of a new trial was right.</p> <p>(a.) Although a declaration may allege certain specifications of negligence by the servants of a railroad company, yet if proof be allowed to go to the jury -without any objection, and without any motion to rule it out, showing acts outside of those alleged, semble that the plaintiff should not be held strictly to the allegata by the charge.</p> <p>3. In a suit by one who was coupling cars, brought against the company for an injury to his hand, it was error to charge that the plaintiff could not recover, unless it was impossible for him to extricate his hand without injury, when the emergency was upon him. The rule is, that he could not recover if, by Ordinary care, he could have avoided the injury.</p> <p>4. In order for a railroad employé to recover from the company for a physical injury to him, done in the business in which he was engaged, he must be blameless about the business which caused the injury. Negligence or carelessness not contributing to the injury, would not prevent a recovery.</p> <p>5. While, in order for a railroad employé to recover against the company for an injury occurring in connection with his employment, he must be blameless in connection therewith, and the company negligent, yet when the employé shows either that he was blameless or the company was negligent, a presumption of the other arises, and the onus is shifted to the defendant.</p> <p>6. Where the presiding judge thinks that he has expressed an opinion on the facts in his charge, and grants a new trial, his judgment will not be readily interfered with, unless the evidence demands the verdict, in spite of errors of law.</p>

<p>1. Where an auditor reports, the evidence before him and his conclusions thereon, such conclusions are -prima facie correct, but the presumption of correctness may be rebutted, and this may be done by the evidence reported by the auditor as well as by aliunde testimony. If no facts are reported, but only results, then evidence' outside of the record is essential to sustain the exceptions or overthrow the prima facie result.</p> <p>2. Admissions made with a view to a compromise are not admissible in evidence.</p> <p>3. Where two partners were engaged in working plantations, one of them managing the business, and the other sold to the firm a plantation by turning it over as a part of the capital, he became a creditor to the full extent of the value of such plantation, and was entitled to payment as a creditor before the firm could be said to make any profits for division.</p> <p>(a.) The entire case should be tried over, the matters in question should be again referred to the auditor, and the rule prescribed in Gunnell v. Bird, 10 Wall., 304, should be applied, as the mode of arriving at the true balance due, if any.</p>

<p>1. When, for any reason, existing or to exist it becomes impossible to carry out, in whole or in part, any last will and testament, a judge of the superior court has power to render at chambers any decree which may be necessary. A decree for the sale of real estate to which minors were entitled, could be rendered at chambers on the petition of the executor of the will, the legatees being parties, •and the minor legatees represented by the executor as their guardian ad litem, there being no issue of fact, and all parties assenting thereto.</p> <p>(a.) Under §4214 of the Code, the judges are to determine on the impossibility of carrying out the will, and the reason for action.</p> <p>■ (&•) That, owing to the disastrous effects of the then recent war and the total change in productiveness of landed property, a support could not be realized if the will were carried out, would seem to be a valid reason for action.</p> <p>(c.) The record showed a consent of parties in writing, and it was unnecessary for the court to submit to the jury the necessity for the sale.</p> <p>'{d.) That the executorwas appointed guardian ad litem forthe minors did not render the proceeding void.</p> <p>(«.I Upon the presentation to the chancellor of the petition showing that the land of infants was involved, they became wards of chancery.</p> <p>2. Where the decree for such sale provided that the money acquired therefrom should be delivered to the regular guardian of the infants, and it was so paid, after much litigation on bills inequity between the guardian and executor, and a prochein ami of the infants and the executor, in which this decree was set up and relied upon by the representatives of the minors, such minors would be estopped from denying the validity of the decree.</p> <p>3. Equity is loth to interfere with and dispossess innocent purchasers who paid full value for the property.</p> <p>4. The fact that the judge of the superior court considered the petition to sell in term, and called in a jury to pass on the necessity of the sale, would not render the decree less effectual than if passed at chambers.</p> <p>5. A new trial being granted, the decree falls, and it is unnecessary to pass upon the exceptions thereto or the motion to dismiss the writ of error founded on a separate bill of exceptions as to the decree.</p> <p>(a.) It being unnecessary, at least, to file a separate bill of exceptions to the decree, the plaintiff in error must pay the costs connected therewith. -</p> <p>6. Where the names of some of the plaintiffs in error were omitted from the bill of exceptions, but their námes could be supplied from the record, they could be inserted in the bill of exceptions by amendment, and service on them was unnecessary.</p> <p>7. Where a case was sent to this court under the act of 1877, after the return day thereof, the burden is on the defendant i a error to show that the clerk was delayed by counsel for plaintiff in error, or by the plaintiff’s own conduct, in order to dismiss the writ of error on that ground.</p> <p>8. Where a motion for new trial goes over to another regular term of court, and no action is had upon it, it will stand continued as any other case, and the writ of error will not be dismissed for that reason, nor will the motion be adjudged to be too late.</p>

<p>Practice in Supreme Court. September Term, 1883.</p> <p>Reported in the decision.</p>

Witness. Evidence. Trover. Before Judge Adams. 'Glynn Superior Court. May Term, 1883. Gus White brought trover for certain cattle against Frederick F.enton and Becky White. Fenton disclaimed .title, and the real contest was between Gus and Becky White.

Gambling. Horse Races. Before Judge Harden. City Court of Savannah. May Term, 1883. McIntyre sued Doyle for $150.00, which he alleged he had bet with defendant on a horse race, and lost. The evidence showed that the contract, under which the race was run and the money lost, was in writing, .and signed by Doyle and one Burch, but that McIntyre furnished the money, and that Burch merely acted for him.

<p>Principal and Agent. Fraud. Equity. Before Judge Lawson. . Jasper Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>Debtor and Creditor. Insolvency. Laws. Traders. Before Judge Hansell. Berrien County. At Chambers. July 25,1883.</p> <p>Reported in the decision.</p>

<p>Where a fund was realized simply by levy and sale, and was claimed by an older fi. fa., it was error to order fees to be paid to the attorney representing the A fa. which brought the money into court, and that the amount so allowed should be credited on the fi. fa. taking the fund.</p>

<p>Practice in Supreme Court. Amendment. Equity. Partnership. Contracts. Before Judge Adams. McIntosh Superior Court. November Term, 1882.</p> <p>Reported in the decision.</p>

<p>Mortgage. Promissory Notes. Debtor and Creditor. Before Judge Clarke. Early Superior Court. April Term, 1888.</p> <p>Chancey proceeded to foreclose a mortgage on realty given to secure four notes, each of which promised to pay twenty bales of cotton, and which fell due annually. At the time of the foreclosure, the first note was due, and plaintiff alleged that the value of the twenty bales of cotton was $1,000.00. Defendant demurred to the petition and rule nisi, because the contract was entire and the notes payable in cotton, and it was too uncertain to be then foreclosed ; • and because the mortgage could not be foreclosed until the amount of the debt could be ascertained. The demurrer was overruled. Defendant then filed his pleas, setting up substantially the same grounds, and also denying the value of the cotton alleged by plaintiff. The court, on motion, struck all except this last plea. Plaintiff was allowed to amend his petition by alleging that there were three notes not due, and praying such order of the court as would protect the surplus for the purpose of paying them when they should become due. This amendment the court refused to strike, on motion.</p> <p>The issue as to the value of the cotton was submitted to the jury. They found for plaintiff $950.00, with interest. The court entered a judgment for the sum so found, and directed that the sheriff sell the property and hold the balance until the next term of court, and then pay it into court to be appropriated to the payment of said notes not yet due, under the further order of the court.</p> <p>Defendant excepted, and assigned each of these rulings as error.</p>

Husband and Wife. Sales. Gifts. Fraud. Before Judge Clark Stewart Superior Court. April Term, 1883. Hobbs, who was in possession of certain property, filed a bill to require John M. Cain and Ligón, administrator of Mrs. Emma M. Cain, to interplead and settle their right thereto. It appeared that John M. Cain was the husband of Emma M. Cain, deceased. He claimed the property under two deeds of gift executed by her to him in hex lifetime.

<p>Municipal Corporations. Costs. Certiorari. Criminal Law. Before Judge Simmons. Bibb Superior Court. October Adjourned Term, 1882. -?</p> <p>Reported in the decision.</p>

Verdict. Interest and Usury. Evidence. Witness. Practice in Superior Court. Before Judge Lawson. Jones Superior Court. April Term, 1883. Kelly brought complaint for land against Broach, attaching as his abstract of title a deed from defendant to him, dated February 5,1873. The defendant pleaded that the deed was made to secure a usurious debt, and the title was void.

<p>Bankruptcy. Judgment. Res adjudicate/,. Principal and Agent. Trusts. Before Judge Bower. Baker Superior Court. May Term, 1883.</p> <p>Reported in the decision.</p>

<p>Practice in Superior Court. Notice to produce Papers. Homestead. New Trial. Verdict. Judgment. Before Judge Stewart. Rockdale Superior Court. February Term, 1883.</p> <p>Kennedy applied for a homestead and exemption, and the ordinary granted the same. The realty set out in the application was a one-third interest in what was known as the “ Kennedy Factory Property.” Brand, a dissatisfied creditor, filed objections and appealed. Among the objections were that the applicant did not own the one-third stated, and that the amount set apart was excessive.</p> <p>On the trial, the jury found in favor of the applicant. The objector moved for anew trial, on the folio wing among other grounds:</p> <p>(1.) Because the court refused to require Kennedy to produce certain books and papers of the firm of Kennedy & Hammons. [It appeared that no notice to produce had been served, but the books were in the town where the trial was progressing, and the witness stated that he would get and produce them, if required, and had no objection to doing so. The court refused to require this.]</p> <p>(2.) Because of newly discovered evidence. [It was not made to appear that all of the attorneys of the objector did not know of the evidence before the trial.]</p> <p>(3.) Because the verdict was contrary to law and evidence and did not cover the issues in the case. [The verdict was, “ We, the jury, find in favor of the homestead with costs.”]</p> <p>(4.) Because the judgment did not follow the verdict, and was not warranted by it. [The judgment recited the application, the objections and the verdict, affirmed the setting apart of the homestead and exemption made by the ordinary, and closed as follows: t; And he, said ordinary, cause the funds allowed by this court arising from sale of exempted property (after deducting ten per cent out from said sum, which he is to pay J. N. Glenn, attorney for the procurement of said fund so exempted, for services rendered by said Glenn in and about all the litigation pertaining to said exemption), to be invested as the law directs.”]</p>

<p>Railroads. Damages. Negligence. Contracts. Custom. Before Judge Hammond. Dekalb Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

<p>Promissory Notes. Negotiable Instruments. Principal and Indorser. Contracts. Before Judge Carswell. Bibb Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>Mortgage. Practice in Superior Court. Process. Before Judge Willis. Marion Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>Legacies. Evidence. Identity. Before Judge Hammond. Fulton Superior Court. April Term, 1884.</p> <p>Reported in tlie decision.</p>

<p>1. If directors of a corporation knowingly issued illegal and spurious stock beyond that which they were authorized by the charter J» issue, and obtained a loan upon such stock as collateral, representing that it was good and valuable, an action of deceit would lie in favor of the lender against the directors as individuals, without first suing the corporation upon its note given for the amount loaned.</p> <p>(a.) As a general proposition, a person to whom stock is hypothecated a j collateral security for a debt, will not thereby become a stockholder and member of the corporation, with all the powers and privileges incident thereto in the management of the affairs of the company. He holds the stock for a special purpose only, the owner not parting with the general property; the holder is-a trustee for the purpose of carrying into effect the objects for which the hypothecation was made; and if it be a sale at all, it is not absolute but defeasible.</p> <p>(b.) Whether, for stock illegally issued by directors of a corporation in excess of the amount authorized by the charter, the corporation , -Itself or the directors individually are liable, is not decided.</p> <p>2. It does not appear, from the pleadings, that the plaintiff in this case has been negligent in discovering the true character of the ' 'stock hypothecated; nor can this be inferred from mere lapse of time, even in a contest between different classes of stockholders, or stockholders and the corporation, involving the validity of the stock, if suit be brought within the time prescribed by the statute of limitations.</p> <p>3. The fact that one receiving stock as a hypothecation for a loan to a corporation had dealings with the corporation after such stock was hypothecated, did not estop him from bringing an action of deceit against the persons composing the board of directors, based upon their procuring the loan upon the pledge of worthless stock.</p> <p>4. There may be damage without injury, where there has been no violation of any right of the party complaining, or no breach of duty to him, but where there has been a breach of duty or violation of right as to him, the doctrine of damnum absque injuria- does not apply. In such eases, if no actual damage is shown, nominal damages may be recovered.</p> <p>5. An action of deceit against directors of a corporation, as individuals, does not call in question the corporate existence of the company ; nor is any such issue involved in this case. But if necessaiy, the plaintiff would not be estopped from setting forth acts which would involve the destruction of rights claimed under the charter, it being no member thereof.</p>

Ejectment. Judgments. Bes adjudicata. Laws. Before Judge Estes. Lumpkin Superior Court. April Term, 1883. Parker brought complaint for land against Stambaugh; who Avas tenant in possession. Martin, the real owner, was made a party defendant by subsequent order. The defendant pleaded former recovery., and supported his plea with the record of an ejectment case which hadbeenbrought by John Doe, on the demise of the same plaintiff against the defendant for the same land.

<p>New Trial. Receivers. Before Judge Adams. Chat-ham Superior Court. March Term, 1883.</p> <p>On a bill filed by Moses Ferst et al., creditors of IT., Mayer & Company, George Yon Seybold was appointed, receiver. Subsequently, trustees in bankruptcy of H. Mayer & Company, that firm having been adjudged bankrupts, filed a petition to have the assets in the hands of the receiver turned over to them. This case was carried to the Supreme Court, and resulted in a judgment that the assets should be paid over to the trustees. This judgment was as follows:</p> <p>“Let the fund in the hands of the receiver he turned over to the petitioners, except so much thereof as may be legally'necessary to defray the costs and expenses of collecting the fund and of securing it, until the order of surrender shall be granted, in pursuance of the directions now given.”</p> <p>This judgment was made the judgment of the superior court, February 10,1877. On the 31st of March, 1877, the receiver filed a petition for compensation, praying that he might receive five per cent upon receipts and disbursement of the total fund, as finally acted upon by said court, and his expenditures to the amount of $1,146.63, counsel fees being paid out of the fund. Which petition was subsequently amended, so as to be a petition for $3,000.</p> <p>The trustees in bankruptcy objected to the allowance of the fees prayed, on various grounds, the substance of which was that the court had no jurisdiction to allow the compensation, and because the receiver was not entitled to any compensation.</p> <p>Different branches of this case have several times been to this court, and will be found reported in 55 Ga., 546; 57 lb., 561; 60 lb., 20.</p> <p>‘ The court overruled the grounds relating to the jurisdiction, as covered by the ruling in 60 ffa., 20; and the other objections were submitted to a jury. There were two principal points of contest: First, whether the amount claimed as disbursements and expenses, and for compensation of receiver, were correct; and second, whether the receiver had forfeited any claim to compensation by reason of mismanagement-and violation of duty.-</p> <p>A considerable amount of evidence was Introduced, mainly consisting of reports and statements of the receiver as to the assets in his hands, and the disposition of the same, and the expenses incurred. It is unnecessary to set this out in detail.</p> <p>One ground of complaint against the receiver was that he had placed $19,504.35 of the funds collected by him in the private banking house of E. 0. Anderson, Jr., & Company at interest; that, by reason of his laches, Anderson & Company had failed, and had been unable to pay the amount so deposited, and that suit had been rendered necessary to recover it; that the receiver had received interest on the amount, which he had not at first stated in his return, but had subsequently added, and that he had kept this interest with his own private funds. The receiver, on the other hand, denied all impropriety in his conduct, and insisted that his services were worth the amount claimed; that the amount-claimed for expenses was correct, and that he had not been guilty of laches ; that he had stated the deposit in different petitions and reports filed by him, and that the cause of the delay in the collection was the death of a member of the firm of bankers, and the delay in settling his affairs.</p> <p>The jury rendered a verdict in favor of the receiver for $3,000 00 and his disbursements, and a decree was entered thereon. On the same day an order was passed reciting that the receiver had in hand, over and above the amount advanced to him as compensation and disbursements, $1,-748 00, and ordering that he bring that amount into court on the first Monday in March thereafter, for investment. The date of the order was January 25, 3879. A few days after the verdict, the receiver died. Subsequently, his legal representative was made a party, and a motion for new trial was made by the trustees, on the following among other grounds:</p> <p>' (1) to (5). Because the court overruled the objections of the trustees in bankruptcy to the allowance of the compensation prayed by the receiver, based on jurisdictional grounds.</p> <p>' (6.) Because the court admitted testimony as to the' services rendered since the order to the receiver to turn over all the funds to the trustees in bankruptcy was granted, viz: February 10, 1877.</p> <p>(7.) Because the court charged as follows. “I charge you that, if Mr. Yon Seybold'made a deposit of this fund in the private banking house of Anderson & Company, such deposit was not illegal, if he made it in good faith, and without intention to defraud anybody, and in accordance with his authority as receiver. I charge you that he had as much right to deposit there as in any other bank. Of course, if he made the deposit in bad faith, and for a malign purpose, and not in conformity with his duty as receiver, you are to take that into consideration in making your verdict.'”</p> <p>(8.) Because the court permitted the petitioner to testify, over objection, that his services were worth the sum of $3,000.00. [The record shows the following colloquy on this subject: Question: “ What value do you place upon your services as a valuation of the same?”—-Objected to by opposing counsel as matter of opinion. The court said, “Don’t ask him an opinion.”—Question: “ From the value of your time and the services done as you have detailed, state to the jury what is the value of your services.”—Ob jected to, but ruled in by the court. Answer: “ Three thousand dollars, from 1874 until now.”—The witness had previously detailed his services and expenses, and stated the salary which he had been receiving before he became receiver, and the amount of time devoted by him to his work as such.]</p> <p>(9) to (13). Because the verdict is contrary to law, evidence and equity.</p> <p>(14.) Because the verdict contemplated giving to the receiver payment for the whole service of administering the estate; whereas, he had before his death only partially administered it, and another receiver had to be appointed after his death to finish the work.</p> <p>(15.) Because of the discovery of new evidence proving that the receiver had died insolvent, and leaving at the time of his death no funds that had been in his custody, nor in the custody of any bank or person for him.</p> <p>Pending this motion for new trial, a motion was made to disallow and dismiss the claim of the receiver, notwithstanding the verdict of the jury, on the ground that he had appropriated to his own use the funds of the estate, in violation of law and of the orders of court Affidavits were introduced in connection with the last ground of the motion for new trial, and in connection with this motion to disallow. Both the motions were heard in 1883, and overruled, and movants excepted.</p>

Attachment. Service. Attorney and Client. Judgments. Before Judge Hammond. Fulton Superior Court. April Term, 1883. J. F. Cawthorn Sued out an attachment against Mary C. Armstrong as a non-resident of the state. The declaration in attachment was filed, and service was acknowledged by “ J. C. Hendrix, attorney at law for Mrs. Mary C. Armstrong.” Subsequently, the death of the defendant was suggested, and still later Hendrix, as her administrator, was made a party by consent.

Contracts. Title. Damages. Torts. Actions. Before Judge Clark. City Court of Atlanta.

Garnishments. Wages. Laborer's. Judgments. Waiver. Exemptions. Before Judge Hammond. Fulton Superior Court. April Term, 1883. S. R. Johnston brought a rule against Smith, constable.

<p>.1. The evidence was weak; and it is doubtful whether it would have warranted a recovery.</p> <p>The defendant showed a good prescriptive title; and a verdict for her was amply supported by the evidence.</p> <p>i(a.) Where one received a voluntary deed from her mother, who was in possession of land, took adverse possession thereunder, without any notice of the fact that the grantor had acknowledged herself to be the tenant of another, and sold the property to a third party, and the two held adversely for seven years before suit, the prescriptive title was good, although the first grantor may, in fact, have been a tenant by sufferance, of which the subsequent takers had no notice,</p>

<p>A will provided as follows: The testator bequeathed certain personalty to his sons, expressly in fee simple'; certain realty was also devised, of which they were to have the usufruct after majority, expressly for life, and at the death of each the lands thus devised to him were to be given to the children of each devisee and to the issue of such of- his children as might then be dead, to be divided ■among them according to the statute of distributions; similar provisions were made for the daughters. It was provided that all the property bequeathed to testator’s children should be kept together by his executor and executrix (his widow); that the plantation on which he resided should be used as the home of his family, and worked to the best advantage by the executors, until the time should arrive for the delivering of the legacies to each legatee; that all of the property not already bequeathed should be kept ' together apd worked to the best advantage for the support of his wife and the support and education of his minor child- en, until the youngest became of age or married, at which time the executors were directed, after appropriating a sufficiency for the support of the wife for life, to divide the balance of testator’s estate among hisissue, on the following basis: thatis to say, each legatee should account for the value of the special legacies received, and in this division be equalized with each other, the land loaned to his sons and given to his daughters for life being charged to them respectively. No provision was made in case one of the devisees should die before marriage, or if there were no child, or the offspring of child in being at the death of the devisee; nor was there any residuary clause. The widow re-married, the youngest child became of age, and the estate was divided. A son died, leaving no child or descendants of children, and his creditors sought to, subject the land received by him:</p> <p>Held, that upon the death of the son without children or the descendants of children, the land reverted to the estate of the testator, and was not subject to the debts of the son.</p> <p>(tt.) It is the policy of the legislation in this state to prevent entails, and at the same time to carry into effect the evident intention of parties, letting all the persons enjoy the benefits intended for them as far as possible, without violating settled rules of law.</p>

Trespass. Damages. Injunction. Before Judge Bower. Worth County. At Chambers. December 4, 1883. McPhaul filed his bill to enjoin W. G. and J. T. Mayo from cutting or using the timber on certain lands, which, it was alleged, derived its chief and almost its whole valué from the pine timber upon it, which was useful both for lumber and to produce turpentine.

Telegraph Companies. Damages. Negligence. Amendment. Principal and Agent. Before Judge Harden. City Court of Savannah. May Term, 1883. Shotter, doing business under the name of Shotter & Company, brought an action for damages against the Western Union Telegraph Company, on account of errors in two telegrams transmitted by the company for the plaintiff from Savannah, Ga., on April 4, 1882.

<p>Husband and Wife. Title. Registration. Notice. Before E. N. Broyles, Esq., Judge pro hae vice. Pulton County. At Chambers. February 19,1883. • •</p> <p>Mrs. Mary A. Davis filed her bill against George W. Adair, the Cincinnati and Georgia Railroad, and others? claiming a one-ninth interest in a certain lot, with the improvements thereon, and alleging that the railroad company had purchased it and were proceeding to tear down the residence thereon. The prayer was for injunction, and for a sale of the property, and payment to her of her interest in the proceeds.</p> <p>The railroad company denied her title, charged that .the deed under which she claimed was obtained from her hus.' band by fraud, and that she was a mere volunteer, and the company was a bona fide purchaser without notice.</p> <p>The deed under which Mrs. Davis claimed was made to her by her husband. It was dated January 10, 1874, and recorded July 14, 1874. The deed from Davis under which the company claimed was dated September 13,1881. Mrs. Davis testified that she paid her husband for the deed, and was in possession. Defendants insisted that this was not true, and that she had no money to pay with, and never asserted any acts of ownership.</p> <p>The court charged, in effect, that if the deed was without fraud, and the grantor was of sound mind, it made no difference whether the deed was for value or voluntary; and that if it was voluntary, but was recorded before the purchase by the railroad, it • would be notice to the company. It was agreed that a money verdict might be found? if the jury found for the complainant. They found for complainant $464.45 Defendant? moved for a new trial on several grounds, the controlling one being the giving of the charge above stated. The motion was overruled, and .defendants excepted.</p>

Bes adjudicata. Administrators and Executors. Equity. Before Judge Simmons. Bibb Superior Court. April Term, 1883. • Henry M. Bailey filed his bill against Albert B. Ross, administrator of James B. Bailey, et al., alleging, in brief, as follows: In 1854 John Bailey died testate, leaving Henry M. Bailey as his executor. Some time after his death, his legatees, being of full age, determined not to carry out the will in the manner prescribed.

<p>Verdict. Presumptions. New Trial- Jurors. Mistake. Before Judge Hutchins. Walton Superior Court. February Term, 1883.</p> <p>• On December 3,1879, Eelker caused a summons of garnishment to be served on Lester, administrator of Benjamin O’Kelly, deceased, founded on a judgment against Benjamin M. O’Kelly. The claim was based on the idea that Benjamin M. O’Kelly was an heir of the garnishee’s intestate, and was served to catch whatever amount might be going from tbe administrator to the heir. The garnishee answered that he was informed and believed that Benjamin M. O’Kelly had died before Benjamin O’Kelly; and was not, therefore, an heir of the latter; that Benjamin O’Kelly died in 1879, and Benjamin M. O’Kelly had been absent and not heard from since 1869—more than seven years before the death of the intestate. This answer was traversed.</p> <p>On the trial, the evidence showed, in brief, as follows: Benjamin M. O’Kelly was under indictment, and stayed away from home, but occasionally returned to see his family. In 1869 he left; did not again return, and his family and neighbors have heard no more from him since. There was a rumor that he had left with a woman of bad repute; another woman of bad character started a rumor that he was living in Alabama.</p> <p>Moore, a witness for plaintiff, testified that he knew O’Kelly; saw him in 1875, and the latter said that he was going to his home in Alabama. The witness described O’Kelly. The son and son-in-law of O’Keliy testified that that description was not like him, and the son stated that, it corresponded with the description of one Joe O’Kelly.</p> <p>Pierce, a witness for (he plaintiff, testified that he had sold Benjamin M. O’Kelly goods in Rockdale county six or seven years since, including bagging and ties.</p> <p>The jury found for the plaintiff. Defendant moved for a new trial, on the following grounds:</p> <p>(1.) Because the verdict is contrary to law and evidence.</p> <p>(2.) Because of newly discovered evidence. [This consisted of a statement by the witness, Pierce, that he was mistaken in testifying that Benjamin M. O’Kelly bought bagging and ties from him; that he had reference to another man named Benjamin O’Kelly. This ground was supported by the affidavit of Pierce and of counsel for the garnishee, the latter stating his ignorance of the testimony until after the trial; also by affidavits of the administrator and others, stating that they were surprised at hearing the testimony of Pierce, and were ignorant of the mistake until after the trial. Affidavits of two jurors were also introduced to the effect that the testimony of Pierce had weight with them in coming to a conclusion, one saying that it had a controlling influence on him. A counter-affidavit of another juror was introduced to show that the verdict was reached without relying on the testimony of Pierce.]</p>

Practice in Supreme Court. At September Term, 1883 Certain land was levied on under a mortgage fi. fa., in favor of J. T. & T. Kirby, against William Lovett, and was claimed by J. T. Reese.

<p>Practice in Supreme Court. September Term, 1883.</p> <p>Reported in the decision.</p>

<p>• Partnership. Statute of Limitations. Parties. Before Judge Carswell. Washington Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

<p>Where a man died indebted for medical services, and his wife converted his entire personal estate into money, and left the county with it, having no visible property, except a half interest in a house, also derived from her husband’s estate, the value of which was estimated at from twenty-five to one hundred dollars, if she ' seeks to recover from the physician on a note given to her indi- ■ vidually by him, equity will allow him to set off the amount of his account against the decedent, will adjudge her practically insolvent—out of reach of and inaccessible to legal process, and will prevent a recovery to the extent of the account thus set off; especially when she is the sole heir, and no other creditor of her husband appears in the case. The same relief may be obtained under equitable pleadings in a court of law.</p> <p>(as.) In cases of set-off, equity generally follows the law; but if it be of an equitable nature, courts of equity will take jurisdiction to • enforce the set-off. In cases of insolvency, there are peculiar equities, which will be seized upon and enforced.</p>

Bes adjudieata. Debtor and Creditor. Insolvency. Execution. Actions. Equity. Injunction. Attachment. Trader. Act of 1881. Before Judge Stewart. Upson Superior Court. January Term, 1883. Coates & Company filed their bill against Allen -et al. for an injunction and receiver, under “ the insolvent trader's act” of 1881, and also to set aside a transfer of property alleged to have been fraudulently made by Allen to Comer & Company for the purpose of defeating his creditors.

<p>A bill was filed against a trustee who held property for the sole use of his wife for life, with remainder to her children, and against his wife .individually. The object of tho bill was to secure from the trust estate the payment of an amount due for provisions, money ' and other articles alleged to have been necessary to carry on a farm belonging to such estate, and to have been furnished to the trustee on the faith thereof. The trustee and his wife both defended, and the latter filed a cross-bill. Pending the case, the trustee died, and an order was taken that the suit abate as to him. Complainants amended the bill, and charged that the wife owned a life estate in said trust lands, and was entitled to the use and profits of the same during her life; that the debt was contracted with her consent and approval, and for the use and benefit of said estate; that the articles were suitable and necessary for the trust estate, and for the life tenant; and that the estate was not represented by a trustee. The prayer was that a sufficiency of the personalty should be sold to pay the debt, or that a receiver might be appointed to take charge of the trust property, and pay complainants from the rent thereof:</p> <p>Held, that it was error to dismiss the bill, on motion, for want of proper parties. The wife being entitled to the entire income of the estate, and being sui juris in respect to the same, if debts were contracted for the purpose of carrying on the farm to raise an income, she ics responsible for them to the extent of the income, and under the facts above stated, a decree against her would be valid.</p>

<p>1. Where the same bill embraces two dr more distinct subjects, it is multifarious; but this defence is not favored by courts of equity. To sustain this objection, the bill must contain several distinct and separate matters relating to individuals with whom the objecting defendant has no concern. Where the plaintiffs have a common interest against all of the defendants in a suit as to one or rhore of the questions raised by it, so as to make them all necessary parties for the purpose of enforcing that common interest, the circumstance of some of the defendants being subject to distinct liabilities in respect to different branches of the subject-matter, will not render the bill multifarious.</p> <p>(a.) The decision complained of and the alleged errors should be plainly specified.</p> <p>(b.) Each case is to be governed by its own circumstances, and must be left in a great measure to the sound discretion of .the court.</p> <p>(c.) Multifariousness, as a ground of demurrer, is distinct from misjoinder, where the cases or claims united in one bill are of a character so different that the court will not permit them to be litigated in one record. Where all the complainants belonged to the same class and had a common interest, and all the defendants belonged to one class and were subject to a common liability, it does not matter that the extent of the rights of each of the complainants, or the liability of each of the defendants, may not be the same.</p> <p>(id.) In order to determine whether a bill is multifarious, regard must be had to the stating part thereof, and not to the prayer alone.</p> <p>2. A court of equity is the proper forum to redress frauds by which parties were induced to take stock in trading corporations or joint stock companies.</p> <p>3. A person who was induced by fraud to purchase shares iñ a corporation cannot avoid his contract, if, after having notice of the fraud, he has derived any benefit from his shares, or in any manner has acted as a shareholder.</p> <p>4. The ground of demurrer that complainants had an adequate and complete remedy at law is covered by the rulings made above.</p>

<p>Pleadings. Betterments. Set-off. Improvements. Evidence. Before. Judge Pate. Dooly Superior Court. March Term, 1883.</p> <p>Reported in the decision.</p>

<p>A bill alleged as follows: Common law suits were instituted against certain defendants. During their pendency, the principal defendant left the state. Attachments pendente lite were sued out, and served both by levy and garnishment. A large amount of property in this state is held by the above-stated defendant as trustee for his wife and children. From time to time, both before and s nee the creation of the debt to complainants, the defendant has mingled his individual funds with the trust estate, in such manner that it is not easy to separate the two funds. Since the commencement of the common law suits and attachments, he has caused shares of stock, of which he was the owner, to he transferred to the trust estate. All of this has been done with a fraudulent intent to defeat the claims of complainants. Apart from this, the defendant is insolvent, owning no property that is not so incumbered. The common law judgments have so far proved fruitless. The bill is filed in aid of them, to ascertain the defendant’s interest in the property, remove the cloud that overhangs the title, and bring it to sale for the payment of his debts, disencumbered, so that it may hring something like its fair value:</p> <p>Held, that there was equity in the bill.</p> <p>(a.) Courts will favor the rights of creditors, and afiord..them every remedy and facility to detect, defeat and annul any effort to defraud them of their just rights.</p>

<p>f • ®° ^ar as concerns the principles laid down in 39 Ga., 533, as applicable to this controversy, the case is res adjudieata, but not further.</p> <p>2. Where, after the trial of a case, the defendant discovered testimony to show that complainants, desiring to have a leading witness on the stand personally, entered into a contract with him that, if the testimony of the witness resulted in recovering certain plantations, they would employ him to oversee such places at a salary of $1,500 per annum, and that one of the jurors was a half brother of such witness, a new trial should have been granted.</p> <p>(a.) The counter-showing didnot relieve the testimony of the witness from suspicion, or render the juror competent.</p> <p>3. A parol contract for land, on which specific performance is sought, should be made out so clearly, strongly and satisfactorily, as to leave no reasonable doubt as to the agreement.</p> <p>(5.) A specific performance of a voluntary agreement, or merely gratuitous promise to convey land, will not be decreed. There must have been possession of the land given under the agreement, upon a meritorious consideration, accompanied by valuable improvements made upon the faith thereof.</p> <p>(c.) A contract by one to transfer to his son certain plantations as soon as the latter should pay the cost of the same, it being the intention that such payment should be made from the profits of tlie plantations themselves, was deficient in mutuality and a nude pact.</p> <p>(d.) This case differs from those in 33 Oa., 9, and 54 lb., 523.</p> <p>4. Statement of the questions remaining to be disposed of in the court below.</p>

<p>1. Where a motion for a new trial was made and perfected during term, and the same was to be heard in vacation on notice by either party to the other, and where, by failure of the clerk to discharge his duty, the parties fail to meet at the time and place fixed by one party and notified by him to the other, and thereby the parties having met at another time and place, the case was passed over to the next regular term of the court, and a motion at that term was made to dismiss it, and the motion overruled:</p> <p>Held, that there was no error in overruling the motion to dismiss. West vs. Jones, 6Í) Get., 763.</p> <p>2. The act of March 3, 1874, “to provide for the payment of the claims of school officers and teachers for services rendered in the year 1871,” is not unconstitutional, by reason of-a proviso in it “that the provisions of this act shall not apply or operate in any county after any grand jury thereof shall otherwise recommend,” nor by reason of any of the other provisos contained in the third section of said act.</p> <p>3. The proviso “that the provisions of this act shall not apply or operate in any county after any grand jury thereof shall otherwise recommend,” is riot so repugnant tp the body of the act as to nullify said proviso; therefore, a charge that a school officer was not entitled to be paid out of the fund set apart for Burke county, under the act of 1874, if the grand jury had recommended that no officer or teacher should be paid out of it, was not erroneous.</p> <p>4. A claim against a county must be presented and audited within twelve months after it becomes payable; otherwise it is barred. This claim not having been so presented and audited, is barred. Code, 50(5, 507.</p> <p>5. If not barred for this reason, it is barred by the ordinary statute of limitations, suit not having been brought within four years from the date of the act providing for payment out of the fund which is sought by this mandamus to be held liable to pay it..</p> <p>6. Under the uniform decisions of this court, especially since the abolition of appeals to a special jury, the first grant of a new trial will not be scrutinized to detect errors of law, or to interfere with the discretion of the superior court on questions of fact; and such first grant of a new trial will not be overruled unless the law and the facts require the verdict. In this case, the verdict is against the law and the evidence.</p> <p>7. In addition to the foregoing reasons for affirming the judgment, it would seem that, by the third section of the eighth article of the constitution of the state, this fund has been appropriated to the support of common schools in general, and is therefore not liable for this debt. Code, §5206.</p> <p>(Head-notes by ihe court.)</p>

<p>1. Where the motion made by the plaintiff in error would, il granted, have finally disposed of the case, he may bring the case to this court for review. Code, §4250.</p> <p>2. If the foundation of the attachment under sections 3297 et seq. of the Code rests upon the affidavit of the attorney, the oath must be positive as respects'the grounds on which the writ may issue under those sections; therefore, the following affidavit was insufficient: “ I, William T. Davidson, do swear that I am a member of the firnn of J. S. & W. T. Davidson, and that said firm are the attorneys at law for A. E. Massman Bros. & Co., and that I swear positively to the indebtedness of M. Brown & Co. to plaintiffs, to the alleged assignment; to the non-residence of SamuelT. Bleyer, and to' the existence of the mortgages aforesaid. As to all the other facts, I charge them on information and belief, and from said information and the investigation I have been able to make, I believe all of said allegations are true.” Code, §3300; Acts 1873, p. 29. '</p> <p>(Head-notes by the court.)</p>

<p>1. Certain matters, in controversy between the parties, were submitted to arbitration on the following agreement: “Whereas there is a certain controversy or disagreement between Luther Stallings and Ellen Pike, both of said county and state, regarding a sale of a certain tract of land in said county, upon.which said Luther Stallings has made one crop, and touching the terms of said sale and the personalty included in said sale. And whereas said both parties wish to rescind said trade, and said Ellen Pike and Luther Stallings cannot agree as to the amount.to be paid by said Ellen Pike to said Luther Stallings, and Ellen Pike take the crop as it now stands, and trade be canceled; or the amount to be paid by Luther Stallings to said'Ellen Pike, and Luther Stallings take the crop as it now stands, and trade be canceled. Now, therefore, know all men by these presents, that the said Ellen Pike and Luther Stallings have agreed, and do hereby agree, to and with each other, the one to the other, to submit to Ira J. Newman, selected by Luther Stallings; William Halroyd, selected by Ellen Pike, and John J. Newman, selected by said Ira J. Newman and William Halroyd, the entire settlement of said matters in dispute; and • they the said Ellen Pike and Luther Stallings hereby mutually bind themselves, each to the other, their heirs and legal representatives, to stand to and abide and comply with the decision that shall be made by said arbitrators touching such settlement, or a majority of said arbitrators. They further agree that, in order that they shall be compelled to abide the same, that the decision of said arbitrators shall have the same force as a judgment of the superior court would have, and that said decision, when reduced to writing, shall be made the judgment of the superior court at this October term ensuing, by consent of both parties hereto, which is hereby given; and that, in the event said award has not been previously complied with, that upon making the same the judgment of the superior court as above provided, that execution for the sum awarded as aforesaid issue instanter in favor of one or the other party, as the award may be in favor of the one or the other:”</p> <p>Held, that the only matter submitted to the arbitrators is, who shall take the crop, and what shall be1 paid the other party therefor.</p> <p>2. An award in the following: “We, the arbitrators, find and agree * that Ellen Pike pay Luther Stallings five hundred, and fifty dollars, and take the crop as it now stands, on the said plantation in controversy,” is sufficiently certain.</p> <p>3. Appearance of parties at the time and place of the arbitration waives all notice and similar defects.</p> <p>4: Appearance of the wife-by the husband as'her agent has the same legal effect as appearance by herself. 61 Ga., 171.</p> <p>5. Receipt by one party of that which is awarded to such party, will estop that party from refusing to comply with the award in favor of the other party, on the plea of illegality or' irregularity in the award. Therefore the receipt of the crop by Ellen Pike will estop her from setting up illegalities and irregularities as reasons for not paying therefor the amount of money awarded to Luther Stallings. Code, §2194; 51 (?a.,348; 58 Ib., 479.</p> <p>(Head-notes by tbe court.)</p>