Volume 72 — Georgia Reports

<p>1. The charge fully and fairly submitted the case, and the verdict was supported by the evidence.</p> <p>2. As to her separate property, a wife is a feme sole. If her husband has become indebted to her in connection therewith, she may take a mortgage to secure her claim, and she will have the same rights as against other creditors of the husband as if she were not his wife; provided the debt so secured is a bona fide, subsisting debt, and the transaction is without fraud. Whether such is the case is for the jury.</p> <p>3. Where a marriage took place prior to the passage of the act of 1866, the husband had the right to reduce his wife’s property to possession as his own, and he could still do so after the passage of the act; but if thereafter he reduced it to possession for her, as her estate, and in consideration of having made use of it for his own purposes, gave her a mortgage bona fide to secure the debt so created, the lien was good, and took precedence of the subsequently acquired liens of other creditors, although he may have been in failing circumstances.</p> <p>4. Although a debt from a husband to his wife may have been barred by the statute of limitations, it could be revived by written acknowledgment. The statute does not extinguish the debt; it only bars the remedy. The making of a new promise by the husband to the wife is not per se fraudulent, but is a circumstance to be considered in investigating the fairness of the transaction.</p> <p>(a.) It appears that the holders of the junior mortgage in this case had notice of the mortgage of the wife, and it was included in the face of their own mortgage. Were they estopped from denying the validity of her mortgage ? Quxre.</p> <p>5. If a request to charge was not proper as a whole, it might have been refused; but it did no harm in this case that the portions which were proper were given by the court, who stated that they were given at the request of counsel.</p>

<p>Homestead. Title. Contracts. Before Judge Hutch-ins. Franklin Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

Parties. Injunction. Dower. Year’s Support, Equity. Mortgage. Practice in Supreme Court. Before Judge Bower. Calhoun County. At Chambers. May 2, 1883. J. H. Miller, as trustee for his wife and her children, filed his bill against D; W. Holloway and James J. McDonald,'alleging, in brief, as follows: In 1880, Holloway sold to complainant a tract of land containing one hundred acres.

<p>1. Where no time was specified for payment in a draft, it was not due until presented.</p> <p>(a.) Such a draft being payable to order, and therefore negotiable, one who bought it before presentation, took it before due; and the presumption is that he is a bona fide holder.</p> <p>(b.) Where a single draft payable to order was issued, with no mention of duplicate or second draft contained in it, one who purchased before due was an innocent holder, so far as the face of the paper is concerned, and will be protected, although another draft for the same consideration and to the same effect was afterwards issued by the drawer and paid, by the fraud of the payee. The second draft was not a duplicate or second of the other, in the sense of the commercial law touching foreign bills of exchange.</p> <p>2. Any circumstances which would put a prudent man upon his guard in purchasing negotiable paper, will be sufficient to constitute notice to a purchaser of such paper before due.</p> <p>(a.) No fixed time for diligence in such cases can be laid down, but each must depend on its own facts, to be ascertained by the jury, under the charge of the court.</p>

<p>1. An immaterial alteration in a paper, whereby no damage would accrue to any person, would not constitute the crime of forgery. The alteration would be entirely harmless, and the law presumes, under such circumstances, that the act was not done with intent to harm any one.</p> <p>(a.) Therefore, where an order requested the drawee to pay for fifty-four pounds of lint cotton at eight and one-half cents per pound, and on the margin of the order were written the figures “54lbs.,” and the only charge in the indictment was that the figure 3 had been inserted before this marginal number, so that it should read “354 lbs.,” such alteration did not change the value of the order, and could not injure any one; and the indictment was demurrable.</p> <p>2. This court will take judicial notice of the names of all companies chartered by the legislature. Where an indictment charged that an order, directed to the treasurer of the “Eagle and Phoenix Man-</p> <p>■ ufacturing Columbus,” was in the county of Muscogee altered, etc.; it was fatally defective, because there is no such company.</p>

Practice in Supreme Court. Injunction. Equity. Administrators and Executors. Jurisdiction. Before Judge Stewart. Monroe County. At Chambers. November 29, 1882. The facts are set out in the second head-note and the decision.

<p>1. Immature crops cannot be levied on separately from the land on which they are growing, except where the debtor absconds or removes from the county or state. Such grounds for levying on growing crops, if they exist, should appear in the process or the levy; otherwise, tho levy will he void.</p> <p>2. Where a distress warrant alleged that the debt was past due, and the defendant was removing tho rents and crops from the rented premises, but the plaintiff's evidence showed that the debt was not due, tho proceedings should havo boon dismissed. Such process is in derogation of common law and common right, and the statute giving it must be strictly construed and literally pursued. Errors or omissions cannot be corrected by amendment or supplied by evidence.</p> <p>(a.) Whether the warrant was void. Quaere ?</p> <p>3. Property distrained for rent may be claimed as in other cases, and the claimant may avail himself of any objection to the process that the defendant could have urged.</p>

<p>Where a carpenter built a store-house under a contract with the owner of real estate, he occupied the position both of a contractor and of a mechanic, and in either capacity, or in both, he had a right to a lien, under §1979 of the Code.</p> <p>(a.) This case differs from 56 Ga., 68.</p>

Husband and Wife. Fraud. Debtor and Creditor. Before Judge Clarke. Terrell Superior Court. May Term, 1883. Held: and not recorded for about two years, and was then delivered up, and a deed was made to his wife; this was done about the time the judgment was rendered (May, 1881), but it was dated July 19,1880.

<p>1. Where a negotiable draft, with a security thereon, was drawn, and accepted by the drawees, who held a mortgage to secure advances, and who received property of the drawer sufficient to pay the draft, after negotiation, the acceptors were primarily and absolutely bound therefor to the holder; tho drawer was bound to pay if the acceptors did not, and his security was equally liable with him. As to the holder, the acceptors may be regarded as makers, and the drawer as a first indorser.</p> <p>2. Where indalgence was granted to the acceptors in consideration of'the payment of eighteen per cent interest, and the acceptors became insolvent, the security was thereby released.</p> <p>(u.) It would be immaterial if the agreement to pay eighteen per cent interest were illegal and void, and if the holder were not bound by the same, but might, notwithstanding, have proceeded to enforce the payment oi this draft, the indulgence being in fact granted. (6.) If the drawer had placed in the hands of the acceptors cotton of much greater value than the amount of the draft, they were not accommodation acceptors.</p> <p>3 In civil cases founded on unconditional contracts, in writing, a court will render judgment without a jury, where no issuable defence is filed under oath or affirmation. If there be a single issuable defence filed under oath, judgment by default cannot be rendered ; and other pleas are not required to be sworn to, except dilatory pleas and the'plea of non est, factum.</p>

<p>Railroads. Damages. Negligence. Before Judge Fain. Whitfield Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>1. A chose in possession is where a person has not only the right to enjoy, hut also the actual enjoyment of the thing; achose in action includes all rights to personal property not in possession, which may he enforced by action,—demands arising out of torts as well as contracts. It is sometimes used as the right of bringing an action.</p> <p>2. ’ The right of an heir to have her interest in the estate of her deceased ancestor, in the hands of his administrator, is a chose in action, and not a chose in possession; and where such right-was in the wife prior to 1806, if her husband died before reducing it to possession, the right survived to the wife.</p> <p>(a.) Therefore, where prior to 1866 an intestate died, leaving a married daughter as one of his heirs, and dower was assigned to his widow, the reversion of the land set apart to her was in the estate, and after the widow died, and the land was sold by the administrator and converted into money, the right to have this money was a chose in action; and the husband of the married daughter having failed to reduce it to possession before his death, the right survived to her to the exclusion of his creditors or heirs-at-law.</p> <p>(i.) It made no difference that the wife’s interest in her deceased ancestor’s estate was in land. The act of 1789 places realty and personalty upon the same footing, as to the marital rights of the husband, and as to the distribution of the estates of intestates. (c.) This case differs from those in 29 Ga,., 58; 52 Id., 321; 46 Id., 593; 51 Id., 40.</p>

Criminal Law. Confessions. Evidence. Practice in Superior Court. Practice in Supreme Court. Before Judge Pair. Dooly Superior Court. March Term, 1883. Perry G. McDonald was indicted for assault and battery, alleged to have been committed on Stephen Woodward.

Evidence. Deeds. Ejectment. Title. Records. Before Judge Lawson. Laurens Superior Court. February Term, 1883. Way et al. brought ejectment against Lowery for lot of land number 10, in the 17th district of Laurens (formerly Wilkinson) county. Plaintiffs claimed under Peter J. Williams ; defendant sought to show a conveyance from P. J. Williams to Colby, Chase and Crocker in 1834.

<p>Promissory Notes. Failure of Consideración. Pleadings. Before W. M. Reese, Esq., Judge pro hac vice. Columbia Superior Court. March Term, 1883.</p> <p>In addition to the report contained in tbe decision, it is' only necessary to state that each of the first two notes stated its consideration to be £< one 6 EL P. engine, 2d hand, and 1 Smith H. P. cotton pressand the other two stated their consideration to be a cotton gin. The plea of failure of consideration, filed by Morgan, was as follows :</p> <p>“Defendant says the consideration for which the note for the one 6 H. P. Scofield engine was given has entirely failed, because he says plaintiffs warranted said engine to be full six horse power, and to be in good condition, in all which plaintiffs were mistaken, the engine not being full six horse power, nor was it in good condition, but was a source of annoyance and expense to defendant almost from the time he first bought it until it finally broke down entirely, and is now worthless. And of this he puts himself upon the country. And for further plea in this behalf, defendant says aetio non, etc., because he says the consideration of the gin note has failed, because he says the gin was represented as a good gin, when, on the contrary, the ribs oi said gin were made of inferior soft metal, and wore out the first season.”</p>

<p>1. If one person contracted to serve another for a certain sum of money, and at the same time stipulated that, if he should die before the expiration of the term of service, he should receive nothing for his services, this would be a good contract, founded upon a sufficient consideration, and would be legally binding upon both parties; and if the party who was to render the services should die before the expiration of the term, his legal representatives would not be entitled to recover anything. Such a contract of service would furnish a good consideration for a promissory note given by the hirer.</p> <p>2. Where the consideration expressed in a promissory note was “for value received,” in a suit thereon, the defendant might plead and prove by parol that the consideration was a contract of hiring which had failed, according to its own terms, by reason of the death of the person; a liter, if the consideration had been stated in the note.</p> <p>(a.) The expression, “value received,” is a patent ambiguity, and it may be explained, and failure of consideration shown by parol. (&.) The cases in 43 Ga., 190; 60 Id., 158; 68 Id., 821, discussed and harmonized with the present case, and the last case overruled in so far as it may conflict with the present decision.</p> <p>3. If the plaintiff hired a person of full age to the defendant, and received from him the note in suit for the services of the person so hired, this was an illegal transaction, and the note so given was void as being contrary to public policy and in violation of the thirteenth amendment to the constitution of the United States, and of par. 17 of the bill of rights in the constitution of Georgia.</p>

Statute of Limitations. Written Instruments. Before B. A. Denmark, Esq., Judge pro hao vioe. Upson Superior Court. January.Term, 1883.

<p>Where a decree in equity has been before the Supreme Court, and the j udgment of the court below has been affirmed, a bill of review will not lie to reverse such decree.</p> <p>(a.) A decree rendered against executors in favor of legatees, fixing the entire amount due by such executors’ on account of a devastavit, is not inconsistent with a decree against certain other parties for the amount in which they aided in such devastavit. The two are consistent and intelligible, when construed with the pleadings.</p>

<p>Wills. Verdict. Jurors. Before Judge Branham. Cherokee Superior Court. August Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. When a person who wishes to purchase land retains an attorney to examine the titles, and such attorney reports to his client that the title of the person from whom he wishes to purchase is good, and it would be safe to purchase, and this report of the attorney is false, he is guilty of a breach of duty, and a right of action immediately accrues to the client. If no special damage or injury lias resulted to the client, then he may nevertheless recover nominal damages; if special damage result from the misconduct of the attorney, it is not of itself a cause of action; the breach of duty imposed by the contract is the cause of action, and not the consequential damage resulting from it. And the statute of limitations begins to run from the date of the breach of duty.</p> <p>(a.) Such advice having been given on March 25,1866, and suit having been commenced on September 26, 1881, it was barred by the statute of limitations.</p>

Criminal Law. Charge of Court. Before Judge Hutch-ins. Walton Superior Court. February Term, 1883. Monroe Adams, Job R. Smith, Charlie Cheatham, Thomas Austin and James Austin were indicted for murder, it being alleged that they killed one Alfred T. Sims, on July 20,1882. On the trial, the evidence for the state was, in brief, as follows: The defendants went to the house of Sims to arrest him.

<p>1. Where a pilot was tried before the commissioners of pilotage of the port of Brunswick, on certain charges against him for dereliction of duty, and after a conviction, an appeal to the superior court was taken, and on the trial before a jury in that court he was</p> <p>. acquitted, the commissioners could not move for a new trial, and upon its refusal, prosecute a writ of error based on such refusal. Proceedings against pilots for dereliction of duty are criminal proceedings, or quasi criminal proceedings, and a judgment in favor of the defendant cannot be reviewed.</p> <p>2. Where a case has been tried before an inferior court, and from its judgment an appeal has been taken to the superior court, the members composing the inferior tribunal are not parties to the case pending on appeal, and cannot prosecute a writ of error in their own names to reverse the judgment rendered on the appeal.</p> <p>(a.) In a proceeding against a pilot for a dereliction of duty,' the commissioners are no parties thereto, except as representatives of the state, and they can make no motion for new triál, nor can they take a writ of error in their own names.</p>

Specific Performance. Partnership. Debtor and Creditor.. Equity. Before Judge Hutchins. Franklin Superior Court. March Term, 1883. J. M. 0. Bagwell filed his bill against A. G. Bagwell^ alleging, in brief, as follows: In 1873, J. Madison Bag-well and complainant were merchants in the town of Carnesville, Georgia, under the firm name of J. M. Bag-well & Son. On April 19, 1873, they borrowed from defendant $260.00, and gave therefor their note, beanng ten per cent interest.

<p>1. Where suit was brought and judgment obtained against a sheriff, and the execution issued thereon was directed ‘ ‘to all and singular the sheriffs of this state and their lawful deputies,” and was levied by the coroner, and a claim interposed, the claimant could move, at the trial of the case and before issue joined, to dismiss the levy, because it appeared that the coroner'had no authority to make the same.</p> <p>i. Where a ft. fa. is issued against the sheriff as such, it should be directed to the coroner of the county of his residence, and to all and singular the sheriffs of the state, except the sheriff of such county; whenthishas been done, the coroner has authority, without more, to make the levy. Where thejt. fa. is n_ot thus directed, and it does not appear on the face of the proceedings that the sheriff is disqualified to act, then, upon affidavit being made of the fact and placed in the hands of the clerk of the court issuing the process, and by him delivered to the coroner, that officer is authorized to make the levy. Without this, he has no authority to execute the process.</p>

Criminal Law. Continuance. Murder. Practice in ^Superior Court. Before Judge Adams. McIntosh Superior Court. May Term,’1883. To the report contained in the decision, it is only nec- ■ essary to add, in connection with tbe third division thereof, that one ground of the motion for new trial was because tbe court did not cause tbe jury to retire during tbe preliminary examination as. to tlie admissibility of the confession.

<p>Injunction. Practice in Supreme Court. Attorney and Client. Records. Before Judge Simmons. Bibb County. At Chambers. June 20, 1883.</p> <p>Reported in the decision.</p>

<p>Witness. Evidence. New Trial. Criminal'Law. Practice in Superior Court. Practice in Supreme Court. Before Judge Willis. Muscogee Superior Court. May Term, 1883.</p> <p>Smith was indicted for assault with intent to murder, alleged to have been committed on one Kimbly. On the trial, the jury found the defendant guilty, with a recommendation to mercy. He moved for a new trial, on the following among other grounds:</p> <p>'(l.j Because the court admitted testimony of witnesses to show that Kimbly was detained as a prisoner in the coal mines of Alabama at the time of the trial.—Objected to .as hearsay, and because the record of his conviction and sentence was better evidence.</p> <p>(2.) Because the court admitted testimony of witnesses to show what Kimbly swore on the committing trial of' .defendant for this offence.—Objected to as hearsay, because^ the defendant should be confronted with his witnesses, and. .because the testimony at the committing trial had been taken down in writing, and this was better evidence than parol.</p> <p>(3.) Because the court committed error in the following; .remarks to defendant’s counsel, in presence of the jury, upon the admission of A. L.,Newberry’s testimony: Question: “Well, Mr. Kimbly was in jail here once, was he not?” Answer. “Yes, sir.” By the court: “That question has been answered; we have got to try this case today. He had just answered that not two minutes ago. You must proceed with the evidence, and get at the testimony that is material.” [The court added the following-note to this ground: “This statement was made by the .court, because the question had been asked and answered before; and to save time, that being Saturday, and the-court not desiring to hold the jury over Sunday.”]</p> <p>(4.) Because of newly discovered evidence. [This was cumulative.]</p> <p>(5.) Because the verdict was contrary to law and evidence.</p>

<p>While one is the owner of land, what he says and does in respect to fixing the boundary thereof may be proved, and his agreements in respect thereto will bind subsequent purchasers from him; but after an owner of land has parted with his title, his subsequent sayings and acts cannot be proved to bind his prior grantee or one holding under him.</p>

Witness. Evidence. Trespass. Damages. Actions. New Trial. Before B. D. Evans, Esq., Judge pro hao vice.'Washington Superior Court. March Term, 1888. Mrs. Martha Scott brought an action of trespass quare clausum fregit against Dr. A. Mathis. On the trial, it appeared that both sides claimed title to the land on which the trespass was alleged to have been committed.

<p>1 Letters of guardianship can be granted only at a regular term of the court of ordinary. "Where the proceedings showed on their face that the letters were granted by the ordinary at chambers, the appointment was made without jurisdiction, and was void. Returns made by a guardian so appointed were of no effect; and, being mere sayings of the persons making them, were not admissible to show the truth of statements contained in them.</p> <p>2, There is no such thing as a guardian defacto in this state. All the acts of persons not properly appointed by a court having jurisdic tion are null and void, and they are liable to the person interested for the same.</p>

<p>Title. Landlord and Tenant. Admissions. Deeds Before Judge Hammond. Fulton Superior Court. April Term, 18S3.</p> <p>Reported in the decision.</p>

<p>Constitutional Law. Criminal Law. Sheriffs. Courts. Before Judge Fort. Sumter County. At Chambers, February 16,1883. •</p> <p>Reported in the decision.</p>

<p>The Code leaves it in the discretion of the jury as to whether they will recommend imprisonment for life in the penitentiary of a person convicted of murder; they are not limited or circumscribed in any respect whatever; nor does the law prescribe any rule by which the jury may or ought to exercise this discretion. Therefore, a charge that the jury, in considering the question of recommending to mercy, should not be governed by their sympathies, but by their judgments, approved by-the evidence in the case and the law applicable to it, was error.</p>

Attachment. Bonds. Before Judge Lawson. Morgan County. At Chambers. April 24, 1883. The E. M. Birdsall Co. petitioned for an attachment under §3297 et seq. of the Code. The attachment issued and was levied. The defendant filed an application to dissolve it. On the hearing, defendant moved to dismiss the attachment, because no bond had been given.

<p>Justice Courts, Jurisdiction. Judgments. • Nullities. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1882.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. Roads and Bridges. Before Judge Estes. Habersham Superior Court. February Term, 1883.</p> <p>Reported in the decision.</p>

<p>1. A suit was brought on a contract; the proof failed to establish the contract sued on, or any other contract on which a recovery could be had; neither was there enough either in the pleadings or evidence to form a basis for a recovery on a quantum meruit or quarts turn valebat.</p> <p>2. As to the claim for supporting and maintaining the child of the decedent, which accrued during his lifetime, it is barred by the statute of limitations. So far as the claim was for services, support, etc., since his death, his estate was not liable therefor, but it was a charge against that part of the estate which would be coming to the child; his guardian, not the administrator, was the proper party against whom to make such demands.</p>

Witness. ’ Evidence. Before Judge Willis. Muscogee Superior Court. May Term, 1883. Mrs. Daniel, administratrix of J. M. Daniel, deceased, sued Mrs. Burts, administratrix of D. M. Burts,-deceased, to recover money had and received by Burts, deceased, as an attorney at law, for the use of Daniel, deceased.

<p>Injunction. Before Judge Fain. Bartow County. At Chambers. July 23, 1883.</p> <p>Reported in the decision,</p>

<p>Practice in Supreme Court. Debtor and Creditor Justice Courts. Jurisdiction. Before Judge Stewart. Newton Superior Court. September Term, 1882.</p> <p>Deported in the decision.</p>

<p>A büi was filed against an administrator, making, in brief, the following case: Complainants are the heirs of defendant’s intestate; the estate is ripe for distribution; there are no debts; the real estate can be readily divided in kind; and there is no need for a sale of it; an order of the court of ordinary has been granted, authorizing a sale of the realty; a motion was made to revoke this order, and on the refusal to revoke it, an appeal was taken to the superior court. The object of the bill was for an account and settlement, and a distribution of the estate; there was a prayer for an. injunction, to restrain the administrator from selling the realty. On the hearing, complainants introduced affidavits to show that ihfc appeal from the court of ordinary was withdrawn, on agreement of the administrator, that he would only sell one lot. This was denied by defendant:</p> <p>Mtítd, that the injunction should have been granted. The object of this bill was not to interfere with the due course of administration, but to wind up and distribute this estate, which is now ready for that purpose; and this may be done as well by a division in kind, as by a sale and distribution of the money.</p> <p>(a.) The estate in this case is ready for distribution and final settlement, and in this it differs from the cases in 68 Ga., 735; 47 Ga., 195.</p> <p>(b.) As real estate descends to the heirs in this state, it would seem to be the policy of the courts to favor the heirs by a division of the lands in kind, and they will not be sold, unless it be necessary to pay debts or to have a distribution.</p>

<p>1. After the dissolution of a partnership, the statute or ¿imitations does not begin to run in favor o£ one partner against another until the partnership affairs, as to debtors and creditors of the firm, have been wound up and settled, or, at least, a sufficient time has elapsed since the dissolution to raise the presumption that such was the fact. Each partner is the agent and trustee of the firm and of the other partner, as to the collection of its assets and the payment of its debts. Nor, while there are outstanding assets and liabilities, will a partner ,be barred as against his copartner, on the principle of stale demands.</p> <p>2. A partnership maybe liabléfor interest to one partner who makes advances for or to the firm, when there is a special contract to that effect, or where it may be implied from the circumstances that the firm was to pay interest for such advances; otherwise, the partner will not be entitled to interest for such advances or payments, but the liability of the firm will be by account.</p> <p>(a.) A claim by a partner for advances made for the firm is not an account stated, nor an account which by custom bears interest from the end of the year. The amount due cannot be ascertained until an accounting is had between the partners.</p> <p>(&.) The judgment is reversed, unless interest to the time of the trial be written off from the verdict.</p>

<p>Principal and Agent. Ratification. Negligence. Before Judge Branham. Polk Superior Court. February Adjourned Term, 1883.</p> <p>Reported in the decision.</p>

<p>It is the payment.of the money by a surety or indorser which gives him the right to control the execution, and reimburse himself from his principal. The entry upon theft, fa. gives him the right to control theft, fa. over any objections of the original plaintiff; but where the latter permits him to have the execution levied on the property of the maker or principal defendant for his own benefit, a claimant of property so levied on can make no objection.</p> <p>(a.) It having been discovered that there was no entry on the ft. fa. showing its payment by the jndorser, pending a claim case arising under a levy made for the benefit of such indorser, the attorney for the plaintiff in ft. fa. could then make the entry. Nor was this an amendment of the writ or levy which would work a dismissal of the latter.</p>

<p>Equity. Administrators and Executors. Waste, Debtor and Creditor. Before Judge Fort. Sumter County. At Chambers. August 4,1883.</p> <p>Reported in the decision.</p>

Criminal Law. Murder. Manslaughter. Charge of Court. Before Judge Lawson. Baldwin Superior Court. January Term, 1883. Louisa Lewis was indicted for murder, and was convicted, and sentenced to the penitentiary for life. The facts were, briefly, as follows: A child of eight or ten years of age died under such circumstances as to cause an inquest to be held. A physician examined Ms body, and found evidences of great ill-treatment and severe usage.

<p>If a public nuisance causes special damage to an individual, in which the public do not participate, such special damage gives a right of action; and as an action may be brought for every day the nuisance continues, equity, which aohors a multiplicity of suits, will entertain jurisdiction, so as to do full and complete justice between the parties and terminate the litigation.</p>

<p>1. A motion in arrest o£ judgment is unknown to courts of equity, and exceptions based on the denial of that motion cannot avail the plaintiffs in error.</p> <p>2. Objections to a bill in equity for want of parties must be made by special demurrer; a general demurrer for want of equity will not embrace them.</p> <p>3. If there was error in not considering the general demurrer, it did not hurt the plaintiff in error, because there is equity in the bil1, and if considered, it should have been overruled.</p> <p>4. On a bill for specific performance of a parol agreement or gift of lands by father to son brought against the claimants of a year’s support, as the family of the father, and by the heirs of the son, the sayings of the father and of his widow, who is the defendant in the bill, claiming the year’s support for herself and minor children, are admissible in behalf of the son’s heirs; and the administrator of the son not being a party of record, and in no wise interested, is a competent witness to prove those sayings. 54 Ga , 624.</p> <p>5. Objections that the verdict is contrary to the charge of the court, however specifically set out, are equivalent to an objection that the verdictis contrary to law, and are embraced in that single objection, for if the charge be not law, the verdict will be upheld, though against the illegal charge.</p> <p>6. Under the Code of Georgia, any person who swears to his knowledge of hand-writing may give his opinion thereon, to be weighed by the jury. Code, §3839.</p> <p>7. Exclusive possession of lands of the father by the son for seven years is conclusive presumption of a gift, and conveys title to the son, unless the latter disclaims title, .or the evidence shows a loan, or claim of dominion by the father acknowledged by the son, and it is forthe jury to say whether the evidence be sufficient to show such exclusive "possession, without disclaimer or loan or dominion, each point to be settled by the weight of the evidence thereon. Code, §2664.</p> <p>8. Though, a specific performance will not be decreed on a mere voluntary agreement or gratuitous promise, yet if possession be given under such agreement or gift, upon a meritorious consideration, such as blood or close relationship by affinity, and valuable improvements be made on the land by reason of faith in that promise or agreement, the performance thereof will be decreed, and slight impr >vemsnts, if of a valuable and permanent character, will suffice. Code, §3189; 33 Ga., 9; 54 Id., 624.</p> <p>9. In the former adjudications upon facts disclosed in this record, no principle antagonistic to the views above was decided. The cases then were either between judgment creditors of the father, whose liens attached before seven years possession by the son, or where, for lack of power to make proper parties at law, a specific performance could not be decreed. The issue now is made for the first time, whose was the title at the death of the father,—was it in him or in the son? If in the father, his family are entitled to a year’s support out of it; if in the son, they are not; or if, at the father’s death, the son was entitled to a specific performance, they are not. 59 Ga., 136; 67 Id., 19; 70 Ga., 273.</p> <p>10. The verdict is supported by evidence, not only parol, but written; the charge and refusals to charge embody practically the points herein ruled, and no material error appears; the judgment overruling the motion for a new trial is therefore right.</p> <p>Judgment affirmed.</p> <p>(Head-notes by (he court.)</p>

<p>1. P. conveyed certain land to H.; subsequently he filed his bill to set aside the deed, on the ground that-it was obtained by fraud; pending the bill, H. agreed with P. that, if the latter would dismiss the bill, he should have the land after his (H’s) death, and H. should make him a deed to the same; the bill was dismissed. The deed being lost, it was proved by parol that it gave one-half at the death of H. to P. and the balance to one Sh H.; no possession was given to P..</p> <p>Held, that, while he might be entitled to have specific performance of the contract, the title did not vest In P. until it was performed, either by the proper execution of deeds of conveyance or the delivery of possession; until then, he could not recover the land in an action at law.</p> <p>2. The paper proved in this case was testamentary in its character, and having neither been properly executed as a will nor probated as such; it conveys no title.</p> <p>Judgment reversed.</p>

<p>The bill is replete with equity; and the court having jurisdiction by reason of the equity therein, may grant an injunction as ancillary thereto, to restrain a mere trespass. The exercise of this power by the chancellor, in view of the bill and answers thereto, was not error.</p> <p>Judgment affirmed.</p>

<p>1. Different counts charging offences of the same nature may he joined in one indictment. 52 Ga., 565; 43 Id., 218; 11 Id., 94; 5 Id., 449.</p> <p>(a.) That an indictment included a count for assault with intent to murder and one for aiming and pointing a pistol at another, did not render it so defective that it should he' quashed on motion ore terms. Code, §§4639, 4629.</p> <p>:2. If grand jurors are qualified when they are drawn, they may serve, .although their names may he left out of the jury-box on a revision ■made before they are empanelled. 64 Ga., 443 ; 70 Id., 765.</p> <p>:3. Evidence showing a part of the res gestx of the transaction on which an indictment was based, was admissible.</p> <p>4. The verdict was required by the evidence.</p> <p>Judgment affirmed.</p>

<p>1. Upon the hearing of an application for injunction in vacation, the only use which could be made of a plea of res adjudícala was for the evidence it afforded to justify the refusal of the injunction prayed for. The chancellor could pass no order finally disposing of the plea.</p> <p>2. The bill made no case for an injunction. It did not appear that either of the defendants was insolvent or likely to become so; the landed property sought to be subjected had not changed hands • since the commencement of this litigation; and if ever subject to the claim, it still remained so; the pendency of the bill was notice to any one who might purchase; the .defendants denied notice of complainant’s equity when they purchased and paid for the property; the answer swore off the equity of the bill, and no rebutting testimony was offered at the hearing.</p> <p>Judgment affirmed. -</p>

<p>When this case was first before the Supreme Court (59 Ga., 593), it was held to be a question for the jury to decide, whether plaintiff was drunk and his powers failed from that cause, or from, a sudden access of disease. When here a second time (61 Ga., 114), it was held that, if he voluntarily became drunk and fell or lay down in a state of insensibility on a railroad track, so that ho was injured by a passing train, he could not recover for injuries so received, even though there may have been negligence on the part of the railroad company. On the last trial, the question whether the plaintiff was voluntarily drunk, and in that condition placed himself on defendant’s road, or whether he had a sudden access of disease, by reason of which he fell upon the railroad, and was injured by the negligence of the defendant’s agents in running its trains, was fairly submitted to the j ury, and there is no excep fcion to the charge. There was sufficient evidence to carry the case to the jury and to uphold their finding.</p> <p>Judgment affirmed.</p>

<p>Where the facts on which the judgment of a justice is rendered are contested, a certiorari will not lie directly therefrom; there must be an appeal, and from the finding of the jury (the case involving less than $50.00) a certiorari may be taken. But where no facts were contested before the justice, and the exception is that, conceding all the facts, the judgment was erroneous, a certiorari may be taken directly from such judgment. 63 Ga., 405.</p> <p>Judgment affirmed.</p>

<p>1. A distress warrant will not lie for rent until the same is due, unless the tenant is removing his goods from the premises or seeking to do so. Code, §2285.</p> <p>2. A note payable on or before a certain day is payable on that day, so far as the maker is concerned. He may pay it before, if he wishes, but may put it off until the day named. There is no ambiguity about its legal effect, and parol testimony is inadmissible to vary its import, or show that it is to be paid before the day named.</p> <p>Judgment affirmed.</p>

<p>1. When the issues made by an affidavit of illegality were submitted to the presiding judge without a jury, and on demurrer, the affidavit of illegality was dismissed, the remedy therefor was by exception to such judgment, and not by motion for new trial; the case going out of court on demurrer, nothing was left to try.</p> <p>2. An affidavit of illegality is a remedy which lies only in favor of defendants in execution; and if filed by persons who aro not de- ' fendants, it will be dismissed. Code, §§3064, 3665; 48 Ga , 365-7.</p> <p>3. Ordinarily the amendment of an execution insures the fall of the levy, and it will be dismissed; but where an original fi. fa. had been levied, and an illegality was pending on a copy or alias fi. fa. subsequently issued, this copy could be amended so as to conform to the original, and the levy made on the original did not thereby fall. Code, §§3500-3.</p> <p>Judgment affirmed.</p>

<p>Where the title to a lot oí land was in the bishop of a Roman Catholic diocese, and the priest of a church within such diocese, as chairman of the building committee1 oí that church, employed a contract- or and caused a church to be erected on the land, if one who furnished materials to the contractor desired to create a lien on the property, he should have given notice to the owner; notice to the priest was insufficient. Code, §1979.</p> <p>(a.) There was no evidence that the priest was the agent of the bishop, even if notice to an agent would be sufficient. Section 1979 of the Code is in derogaton of common law, and its requirements must be strictly followed.</p> <p>Judgment reversed.</p>

<p>The county is not responsible in damages for the tort of one of the guards, in unlawfully beating a convict in the chain-gang, nor for the negligence of the rest of the guards in not protecting the convict from the unlawful beating. 2 T. R., 667 ; 15 Ga., 316; 18 Id., 475 ; 19 Id., 100 ; 20 Id., 846.</p> <p>(a.) In cases where the statute provides for the liability of counties, a recovery may be had against them ; as when no sufficient bond is taken to keep bridges in repair. Code, §§491, 691 ; 41 Ga., 229 ; 58 Id., 832 ; ,64 Id., 69.</p> <p>(Head-notes by the court.)</p>

<p>1. On proof of title in a minor, he may recover, though letters of guardianship be not produced, and the suit be in the name of the guardian. Code, §3263; Ansley vs. Jordan, 61 Ga., 488. Title on the death of the ancestor vests in the heir, and not in the guardian, if there be one. If none, or letters not produced, and guardian necessary, court should appoint.</p> <p>2. Possession by the heirs under the ancestor, of lands, in the possession of which he died in 1863, in the war, up to the filing of the writ, or a short time before, is such title as will entitle the heirs to recover, the defendant showing none.</p> <p>3. The record does not show to whom the sheriff’s deed was made, or who bought the land under the justice court fi. fa.; therefore, no error appears in ruling out the deed and fi. fa.</p> <p>Judgment reversed.</p> <p>(Head-notes by the court.)</p>

<p>„ „ . . „ , 1 Exceptions to the answer of a justice of the poace to a writ of certiorari must be in writing, must specify the defects complained of, and notice thereof must be given to the opposite party before the case is called for a hearing; but the statute does not require that such exceptions should be verified by affidavit, or that they should be disposed of at the term when they are filed. Code, §§4062, 4066; 40 Ga., 36 ; 64 Id., 576 ; 65 Id., 260.</p> <p>(a.) The case in 26 Ga., 414, was decided before the Code went into effect.</p> <p>2. That the record does not show that notice of the exceptions was given before the calling of the case, cannot be urged for the first time in this court, no such question hav’ng been made in the court below. The statute does not prescribe the form or manner of notice. It may have been given or waived.</p> <p>Judgment reversed.</p>

<p>1. This court is not satisfied with the verdict in this case. The charge was rape; the verdict was assault, based upon improper exposure of a female patient’s person by her doctor, under false and fraudulent statements of the necessity therefor. The evidence should have been as clear and satisfactory as would have been necessary to convict of rape. It was not so.</p> <p>2. While the court should give the law of the case in charge, yet he should he careful not to press an untried issue, without warning to the defendant' or notice of it .to his counsel, giving it in his last charge to the jury,</p> <p>(a.) Where the indictment was for rape, and that issue alone was tried, it was hardly fair to the defendant to charge and press upon the jury law to the effect that they might find a verdict of guilty of an assault, if the defendant was a physician and wrongfully exposed the person of a female patient.</p> <p>Judgment reversed.</p>

<p>This case is concluded by the judgment when it was here before (69 Ga., 708), and the matter is res adjudicatei. After the remitter had been returned from this court and made the judgment of the court below, it was error to allow exceptions to be filed by defendant. They came too late, and final judgment should have been granted for the plaintiff.</p> <p>Judgment reversed.</p>

<p>Section 89" of the Code provides that the overplus arising from the sale of unreturned property for taxes shall be paid to'the ordinary as a part of the educational fund, subject to the claim of the true owner within four years. In the present case, the action was brought by the purchasers at the sheriff’s sale, but it did not ap-. pear what right they had to recover such overplus, whether by assignment from the true owner or otherwise.</p> <p>(a.) It may be that the persons having charge of the disbursement of the educational fund might maintain an action against the ordinary for a misapplication of this fund, if not barred.</p> <p>Judgment reversed.</p>

<p>At the monthly session of the county court, it has jurisdiction of issues on distress warrants, where the amount of the principal does not exceed one hundred dollars, and at its quarterly session it has. jurisdiction of such issues on distress warrants, where the amount is in excess of that sum, but not more than three hundred dollars, (except where the warrant is issued by the county judge himself). Therefore, where a notary public and ex-offiaio justice of the peace issued a distress warrant for two hundred and thirty-five dollars, returnable to the next term of the county court, it was properly returned, together with the counter-affidavit thereto, to the next quarterly session of the county court. Code, §§283 (f), 295 ; 60 Get.. 623</p> <p>Judgment reversed.</p>

<p>An affidavit to obtain an attachment stated as follows: The affiant“on oath says that he is attorney at law in this matter for the Chronicle and Constitutionalist, a corporation chartered under the laws of said state, and that S. C. Giles is indebted to said Chronicle and Constitutionalist, to the best of his knowledge and belief, in the sum of one hundred and seventy-five dollars, with interest from April 12,1881, and that the said S. C. Giles is not a resident-of said state, but resides without the limits thereof</p> <p>Held, that the words “to the best of his knowledge and belief ” only qualified the statement as to the indebtedness, and did not qualify the other clauses of the affidavit, so as to render it insufficient.</p> <p>(a.) This case differs from those in 60 Ga., 112, and 28 Id., 351.</p> <p>Judgment reversed.</p>

<p>1. Although a lease of certain turpentine lands was made in 1877, and was for three years only, the time at which it was to begin not being specifically stated, but enough being set out to show that the parties may have intended it to begin at the time the trees in each lot were boxed, there being many lots, in two counties, if the lessor saw the boxing being done in the year 1882, and not only did not object, but urged that it be done, equity will estop him from setting up an adverse construction of the instrument, in order to turnout the lessees, who, under his urging, expended their labor and capital in preparing for the turpentine business.</p> <p>2. If this were not so, the defendants are able to respond in damages under a judgment at law, and those damages are as ascertainable as in cases of trespass in destroying the cultivation of land for crops, or other similar business—the quantum of damages turning on the amount of damage done and the estimate thereof, in the opinion of witnesses expert in, or acquainted with, such operations.</p> <p>3. The. remedy at law to evict a tenant holding over is complete.</p> <p>4. The chancellor decides upon controverted facts, on applications for injunction, and this court does not interfere.</p> <p>Judgment affirmed.</p>

<p>Where an injunction case has been regularly entered on the docket of the term of this court to which by law it belongs, and on the call thereof has been dismissed for want of prosecution, it will not be reinstated, although it may be made to appear to the court that counsel had agreed for it to be returned to the next term, and were willing for the case to be reinstated, and although the judge’s certificate to the bill of exceptions named the succeeding term.as the one to which the record should be sent up Motion to reinstate denied.</p>

<p>1. When a mandamus nisi has been issued to a judge of the superior court, requiring him to show causo why he should not sign a bill of exceptions, and in answer thereto ho states that ho has no evidence of the truth of the statement of facts contained in the bill of exceptions, and no proceedings have taken place before him by which he could verify them, the rule will be discharged.</p> <p>2. Such an. answer cannot be traversed. Code, §4258.</p> <p>Buie discharged.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>A woman and another entered into a written agreement on July 15,. 1862, whereby the other party was to take the son of the woman, feed and clothe him, and give him a common school education, and a horse, bridle and saddle when he became twenty-one years of age; the son became of age in December, 1874, and brought suit in 1880, alleging a breach of the covenant, in that'the person so agreeing had failed to give him a common’ school education: '</p> <p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>The question presented by this record being whether, under facts on which testimony was had on a trial before the corporation court of the city of Griffin (from whose judgment a certiorari was taken), a certain encroachment on a sidewalk was a nuisance, the judgment of the court below will not be reversed because he remanded the case for a new trial, instead of rendering a final judgment therein.</p> <p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>:3. The verdict was right.</p> <p>Judgment affirmed.</p>

<p>Held, that from this evidence it would seem that the title to the cow had not passed to the plaintiff; and if so, he could not recover the money received for her from the railroad. lié might have sued for the value or contract price of the building, if he fulfilled his contract, or for the cow or her value, if she was the consideration.</p> <p>(a.) If the title was in plaintiff, he might waive the conversion and sue for money had and received for his use, if the property had been turned into money. The judge Of the superior court should have granted the writ of certiorari, that he might hear the case with the answer of the magistrate before him.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

Master and Servant. Parent and Child. Damages. Negligence. Principal and Agent. Non-suit. Res gestae. Pleadings. Evidence. Before Judge Roney. Richmond Superior Court. October Term, 1883, C. G. Barnes brought suit against the Augusta Factory to recover damages for an injury to his minor daughter, . which it was alleged resulted in her death. The evidence for the plaintiff was, in brief, as follows : Anna E. Barnes, the daughter of plaintiff, was fourteen years of age.

<p>Practice in Supreme Court. Practice in Superior Court. Garnishment. Onus Prohandi. Before Judge Hammond. Fulton Superior Court. October Term, 188&</p> <p>Reported in the decision.</p>

<p>Actions. Damages. Torts. Municipal Corporations. Before Judge Hammond. Fulton Superior Court. October Term, 1883.</p> <p>Reported in the decision.</p>

<p>Pilotage. Maritime Law. Rivers and Harbors. Ports. Before Judge Adams. McIntosh Superior Court. May Term, 1883.</p> <p>Reported in the decision.</p>

Homestead. Pleadings. Amendment. Before Judge Stewart. Rockdale Superior Court. August Term, 1883. A fi. fa. in favor of McCord, executor, against Hardin, was levied on certain corn, etc., which Hardin claimed to be exempt as the proceeds of land which had been set apart to him as a homestead. On the trial, he offered in evidence the record of the setting apart of a homestead to him and an amendment thereto ; but they were rejected by the court.

<p>In amnthat the publication was a privileged communication, whether it was so or not, under the facts proved, is a question for the jury ; and although a communication charging that a constable had collected money and appropriated it to his own use may have been privileged, in an action therefor, the plaintiff was entitled to have it submitted to the jury, whether the same was published maliciously or not.</p> <p>(a.) Malice may be inferred from the character of the charge, and its existence may be rebutted by proof. In case of an unprivileged communication, want of malice goes in mitigation of damages; if the communication be privileged, absence of malice constitutes a bar to the recovery. This involves a submission to the jury.</p> <p>(5.) If one who wrote a communication, charging a constable with misappropriating money, was a road commissioner, and wrote such communication to the commissioners of roads and revenues of the county respecting his duties as such commissioner, it was privileged; and if it was written in good faith, without malice, and with no intent to injure the reputation of plaintiff, he could not recover; or if the statements in it were true, he could not recover; but if the privilege was used merely as a cloak for venting private malice, and not Iona fide in promotion of the object for which the privilege is granted, then the plaintiff could recover.</p>

Constitutional Law. Laws. Charters. Railroads. Municipal Corporations. Before Judge Stewart. Hall County. At Chambers. January 24, 1884.

<p>Where suit was brought in a justice’s court for $60.00 damages and $20.00 attorneys’ fees, and after judgment for the. plaintiff for $60.00, the defendant gave notice of an intention to appeal to the superior court, but before it had done so, the plaintiff entered an appeal to a jury in the justice’s court; the subsequent entry of the • appeal to the superior court did not serve to remove the case from the justice’s court, or to divest the jurisdiction of that court, though within four days from the judgment.</p> <p>Blandford, J., dissenting.</p>

Debtor and Creditor. Witness. Impeachment. Charge of Court. Fraud. Before Judge Clark. City Court of Atlanta. June Term, 1883. Buck, Hefilebower & Neer brought suit against Sam on account for goods sold. The main ground of defence was, that defendant had made a composition Avith his creditors, and had settled the claim of plaintiffs.

<p>1. On. a rule against a sheriff, one ground being that the sheriff failed to levy on certain cattle as directed by the plaintiff, where his un- • traversed answer set out that he had made search for the cattle in. his county, and could not find any such therein, although there-were some such cattle in a neighboring county beyond his jurisdiction ; that having failed to find any property, as a last resort, he ■ j. levied on certain land pointed out by the defendant, such an- ■ swer discharged him from contempt on that ground.</p> <p>.2. A sheriff cannot discharge himself from a rule against him for neglect of duty in levying on, but not selling, land pointed out by defendant in fi. fa., by showing that he has ac&epted an.affidavit of • illegality based entirely upon his own neglect of duty.</p> <p>(a.) If the sheriff and the defendant colluded, and thereby hurt the plaintiff, the sheriff is responsible to the extent of that hurt. The facts may be ascertained by an amended answer and traverse, if desired.</p>

Criminal Law. Charge of Court. Practice in Supreme Court. Practice in Superior Court. Statement of Prisoner. Presumptions. Sentence. Before Judge Clark. City Court of Atlanta. September Term, 1883.

Criminal Law. Practice in Superior Court. Jurors. Charge of Court. Evidence. Before Judge Carswell. Emanuel Superior Court. November Term, 1883. To the report contained in the decision, it is only necessary to add the following: Alfred Inman was indicted for the murder of his wife, Mary J. Inman. It is- unnecessary to set out the conflicting and voluminous evidence in detail.

Eubanks & Hill brought suit against David Smith and his wife, Jennie Smith. The body of the declaration was as follows: “On the first day of July, 1879, plaintiffs leased from defendants for one year next ensuing the following property (describing it); and the rental to be paid for said property was two hundred and forty dollars, payable monthly.

<p>Sunday is dies non juridiaus, and service cannot be made, or legal notice given on that day, or the business or work oí ordinary callings done. Therefore, the publication of the advertisement of a marshal’s sale for taxes in a newspaper appearing on Sunday was not legal, and the sale thereunder passed no title.</p>

<p>Railroads. Damages. Negligence. Master and Servant. Before Judge Fain. Whitfield Superior Court. October Term, 1883.</p> <p>Reported in the decision.</p>

<p>Notice. Levy and Sale. Attorney and Client. Fraud. Sales. Before Judge Fain. Whitfield Superior Court. October Term, 1883.</p> <p>Reported in the decision.</p>

Practice in Superior Court. Auditors. Yerdict. Statute of Limitations. Contracts. Administrators and Executors. Charge of Court. Before Judge Stewart. Fulton Superior Court. Held: as administrator, notes of Holliday sufficient in amount to overbalance the sum received and appropriated by plaintiff.

<p>1. An accusation for selling spirituous, intoxicating or malt liquors within the corporate limits of a city, in violation of the municipal ordinance, was not rendered bad because it did not state to whom the liquor was sold.</p> <p>2. A municipal ordinance which provided that “no person or persons shall be allowed to sell any spirituous, intoxicating, fermented or malt liquors in the incorporate limits of the city of Dalton, in any quantity, either directly or by selling any other commodity and giving away liquor, nor under any other device or disguise whatever,” and imposed a penalty for its violation, did not provide for the same ofíense as §4565 of the Code, which prohibits the keeping of a tippling house or the retailing of spirituous liquors without a license. The former prohibits the sale, the latter only requires a license; nor are the two identical in respect to the class of liquors provided for.</p> <p>(a.) The city of Dalton had ample power to pass the ordinance in question.</p> <p>(J.) If the offenses were the same, general power existed prior to the constitutions of 1863 and 1877 in the corporate authorities to try for this offense; nor was the law unconstitutional because no provision was made for a jury trial for the violation of the municipal ordinance.</p>

<p>1. Where a hill had been filed to enjoin several common law actions, and in consequence they were tried with the bill, and both parties introduced testimony, the complainant in the bill was entitled to open and conclude the argument.</p> <p>2. In an action for damages against a company which carried granite from its quarry to the main line of a railroad by means of a railroad of its own, which passed through the street of a village, and by- reason of which it was alleged that injury resulted to the owners of property abutting on the street, danger of possible collision of animals and persons with the trains running on the track along the street, or of persons or animals being thereby frightened, were not elements of damages.</p> <p>3. The judgment rendered in this case when formerly before this court (67 Ga., 215) estopped the respondents from contesting.the right of the company to use this street for the purposes of its road, as well as from calling in question the power of the town council to enter into a contract with the company, authorizing it.</p> <p>4. The questions to be submitted to the jury on the last trial were, whether the property of the complaining parties had been injured by the company’s use of the street, whether this injury was permanent, and if so, to what damages they were entitled. There was no error in restricting the inquiry to these points.</p> <p>5. The actual damage sustained by the property owners in consequence of the building of the road and the use of the engine thereon, was what they were entitled to recover. If these damages did not exceed the increase in value of the property by reason of the company’s improvements, they suffered no injury; and evidence to show such increase in value was admissible.</p> <p>(a.) While it would have been better not to have referred to the improvement of property other than that of the parties in litigation, such reference did no injury.</p>

<p>1. Fraud which will prevent a debt from being discharged in ruptcy, under §5117 of the revised statutes of the United States, is positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality.</p> <p>(a.) If a debt originated in suoB. fraud, the discharge of the defendant in bankruptcy would not protect him. Nor is the character of the claim affected or changed by having been reduced to judgment when the defendant was adjudicated a bankrupt.</p> <p>(6.) Where a declaration alleged that the plaintiff purchased from the defendant and his partner a certain lot, for a price stated, and took a conveyance in the usual form, and containing the usual warranty of title, and charged upon them deceitful and fraudulent representations in relation to certain incumbrances, claims and liens which they knew existed upon the land, and which they' concealed from the plaintiff, and by means of this fraud and concealment sold the premises to the plaintiff, whereby the plaintiff was damaged a stated amount, and process was asked calling upon the defendant to answer the plaintiff in an action on the case for deceit, the debt so sought to be enforced was one originating in fraud, and from which the bankruptcy of the defendant did not relieve him.</p> <p>(c.) An express warranty knowingly false may be waived as a contract, and an action may be brought for deceit.</p> <p>(d.) If the declaration were defective in not setting out with suffi.cient certainty that the plaintiff acted on the alleged fraudulent representations, this would be a ground for demurrer, but would not be sufficient to arrest the judgment, nor would it change the entire character of the suit, so as to convert it from one ex delicto into one ex contracta.</p> <p>(e.) Form of verdict in such cases suggested.</p> <p>2. Where a declaration alleged that F. M. Jack and Thomas M. Bryson, both of the county where suit was brought, were lately partners, using the firm name and style of Jack, Bryson & Company, and the sheriff returned that he had served the defendants, Jack, Bryson & Company, in person, with a true copy of the declaration and process, such return was not void for uncertainty.</p> <p>3. The fact that the limitation act of March 16, 1S69, bars the right as well as the remedy, does not deprive the court of jurisdiction to hear and determine causes within its provisions. If a defendant desires to take advantage of that act, he must plead it; if he fails to do so, he waives it, and a judgment against him is good.</p>

<p>1. Wherever there is conflict in the testimony on all the controlling points in the case, though the judge, after verdict, may grant a new-trial, he cannot, before verdict, grant a non-suit at law, or a dismissal, in the nature- of a non-suit, in equity.</p> <p>(a.) Amotion to dismiss a bill in equity, with the facts elicited from the witnesses and the written testimony all in and before the court, is analogous to a motion for a non-suit at law, and the same general law is applicable to each case.</p> <p>(6.) The remarks in 65 Ga., 311, and 66 Id., 195, indicating the contrary rule, were obiter dicta.</p> <p>2. In equity trials in this state, wherever the truth of the facts is in dispute, the statute is imperative that the final decision thereon shall be by a jury.</p> <p>3. So far as the province of the jury to try facts in dispute is concerned, it is immaterial what degree or quantum, or certainty of evidence may be necessary by law to give relief in the case in equity. It is for the jury to find the facts, under the charge of the court, in one form or another of jury trial, either by general or special verdict-</p> <p>4. The plaintiff in this case is entitled to have the jury pass upon the facts thereof, so as to give to the chancellor those facts as they really exist, that he may apply to them the principles of equity, and make an equitable decree thereon.</p>

<p>The regulations of the railroad commissioners, fixing the rates of fare for passengers who obtain tickets from the agents of the companies at their depots, as well as for those who do not, and prescribing the manner in which ticket offices shall be kept open before and at the arrival of trains, do not apply to freight trains, but only to regular passenger trains.</p> <p>(a.) Though a charge may be erroneous, the party in whose favor it is given has no right to a reversal on account of it.</p> <p>(5.) The evidence above shows nothing to establish the unreasonableness of the regulation, nor is it unlawful.</p>

Criminal Law. Bonds. Principal and Surety. Before Judge Willis. Taylor Superior Court. October Adjourned Term, 1883. This was a scire facias to forfeit a criminal recognizance. In answer to the rule nisi, the sureties set up the following facts: A. N. West was arrested on a warrant for assault with intent to murder, and Hartley, Hines and Bateman became the sureties on his bond for $200.00 for his appearance at the October term, 1882, of Taylor superior court.

<p>1. Comity to a co-ordinate department of the government requires of courts that cases shall not be disposed of on constitutional grounds, when it is possible to avoid such questions, without a sacrifice of the rights of parties.</p> <p>(a.) This court has no jurisdiction to review judgments of lower courtsj unless the judgment complained of, together with the error alleged therein, shall be plainly specified.-</p> <p>2. Under the act of 1873, the powers of the board of education are not more restricted in the distribution of the fund derived from what was formerly the endowment of the Glynn County Academy than of other funds entrusted to their care and management. The fund received from such sources goes into, and forms a part of, the general educational fund of the county, and is not required to be kept separate and distinct, or to be appdrtioned by a different rule.</p> <p>(a.) The legislature changed its system of public education in Glynn county, and imeonsequence thereof, has made a different appropriation of the fund from that which formerly prevailed, and has • called into existence a new agency, which it has invested with such powers as were deemed appropriate to carry into effect the object it had in view.</p> <p>(h.l That the academy is a school of higher grade than other public schools of the county makes no difference. The board of education is invested with power to establish schools of higher grade.</p> <p>(c.) The mayor and council of Brunswick and certain citizens of the town have no right to interfere, either as a corporation or as citizens of the county, with the management of the board of education. It is responsible to the public authorities for its management of the trust confided to its care.</p>

<p>1. Leading questions are generally allowed only in cross-examinations, but the court may exercise a discretion in granting that right to the party calling the witness, and in refusing it to the opposite party, when, from the conduct of the witness, justice requires it; and this discretion will not be controlled, except in an extreme case, although the witness called may be one of the opposite parties to the case.</p> <p>(a.) While, in this case, the court in terms refused the privilege of asking leading questions of the witness,;yet it appeared that many such questions were, in fact, asked and answered without objection.</p> <p>(b.) Leading questions may be propounded in a bill for discover}1'.</p> <p>(c.) Where discovery is sought and had by bill in equity, if the complainant afterwards places the defendant on the stand as a witness, semble, that he does so on the same terms and subject to the same conditions as in the case of indifferent parties.</p> <p>(d.) The answer of one defendant is evidence for another only when it states facts against his own interest, and in favor of that of his co-defendant. Generally, it is not evidence against his co-defendant.</p> <p>2. Where the defendant to a bill introduces no testimony, he has the right to open and conclude the argument.</p> <p>(a.) On the trial of a bill praying discovery, the defendants were not compelled to offer their answer in evidence in order to rely upon it. When discovery was had according to the prayer, defendant became complainant’s witness.</p> <p>(b.) The fact that counsel for the defendants announced that they considered the answer in evidence, amounted only to a statement that they would rely upon such answer, and did not take away the right to open and conclude.</p> <p>3. The gravamen of a bill being that the estate of a decedent had been divided, with a view to dissipate and conceal the widow’s interest by distributing it among her children, and thereby to defeat the collection of complainant’s claim against her, when it appeared that the widow had received, as part of her share, an interest m a debt on one of the distributees, or a debt on a firm of which he was a member, no recovery could be had in favor of the comp ainant against him on account of such indebtedness, without pleadings for that purpose, and without giving him an opportunity to defend such a claim; and such matter does not appear to have been pertinent to the issue.</p>

<p>Interest and Usury. Judgments. Merger. Before Judge Clarke. Talbot Superior Court. September Term, 1883.</p> <p>OmFebruary 16,1875, W. A. Daniel gave T. N. Gibson his note, as follows:</p> <p>“By the twenty-fifth day of December next, I promise to pay Thomas N. Gibson, or bearer, $1,166.62 for value received, with interest at the rate of 15 per cent from the twenty-fifth of December next, if not punctually paid. This February 16, 1875.”</p> <p>Suit was brought on the note to the March term, 1877, of Talbot superior court; judgment, was rendered at the September term, 1877, for the principal sum sued for, with interest at fiftéen per cent up to judgment, and costs. The judgment did not state what rate of interest it should bear. At the September term, 1883, Gibson filed his petition, in which he set out these facts, and prayed that the judgment uni f .fa. be amended so as to make the principal continue to bear interest at fifteen per cent after the date of the judgment. The court allowed the amendment, and defendant excepted.</p>

Insurance. Corporations. Stock and. Stock. Before Judge Estes. Clarke Superior Court. November Term, 1888.

Practice in Supreme Court. Equity. Yerdict. Statute of Limitations. Guardian and Ward. Judgments. Ordinary. Before Judge Lawson. Greene Superior Court. September Adjourned Term, 1883. Anna M. Poullain and Iíallie B. Poullain (the latter through Anna M. as her next friend) filed their bill against Thomas N. Poullain, alleging, in brief, as follows: Junius Poullain, the father of complainants, died in Floyd county in 1862.

New Trial. Municipal Corporations. Damages. Before Judge Clark. City Court of Atlanta. December Term, 1883. W. C. Bellamy brought case against the city of Atlanta for damages resulting from a fall, which he alleged occurred by reason of the defective condition of the paving on the sidewalk of one of defendant’s streets, negligently allowed to remain in that condition after notice and opportunity to repair.

<p>1. When this case was first before the court (70 Ga., 164), it was held, in effect, that there was no equity in the bill, and that the complainant had an adequate common law remedy.</p> <p>2, A demurrer having been filed at the return term of the bill, and ■ at a subsequent term of court an amendment having been made, the demurrer renewed and notice thereof given, it went, not to the amendment, but to the entire bill.</p> <p>(as.) The failure to give notice of the first demurrer did not work its dismissal.</p> <p>(5.) An amendment which materially changes a case opens the bill as amended to demurrer or plea, but an immaterial amendment has no such effect.</p> <p>(c ' The Port Boyal and Augusta Bailroad Company, having been incorporated by the general assembly of this state, sold under decree of the United States court, and the purchasers having organized themselves into a new corporation under the act of 1876, and filed their certificate of incorporation in the office of the secretary of state, it is not a foreign corporation.</p> <p>(d.) A demurrer only admits such facts as are well pleaded, and where the bill alleges facts as true which are contradicted by leg islative acts and records of which the court is bound to take judicial notice, it cannot hold such facts to be true, and th.ey will not prevent the sustaining of the demurrer.</p> <p>(c ) This case differs from that in 65 Ga., 614.</p>

Municipal Corporations. Non-suit. Eminent Domain. Nuisance. Before Judge Hammond. Fulton Superior Court. October Term, 1883.

<p>1. Where a non-suit has been granted, the losing party may either bring his case to the Supreme Court by writ of error, or may, during the term pf the trial, move to re-instate the «ase, and from a refusal of that motion, properly made, may bring the case to this court,</p> <p>'2. In order to foreclose a lien for logs furnished to a saw-mill, there must be a demand on the owner, agent or lessee of the property, at the time when the demand for payment is made preparatory to the foreclosure of the lien. It is not sufficient to make a demand ■ upon former owners of the property, who were such when the logs were furnished, but who have since ceased to be so, and have parted with the possession of the property.</p> <p>(a.) Where the only demand made was upon persons who had been the owners of the saw-mill at the time the logs were furnished, but had since ceased to be such, and others had purchased the property and gone into possession, a non-suit was properly granted.</p>

Roads and Bridges. County Matters. Notice. Courts. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1883. Moses Sims filed his jietition for a certiorari to the judgment of a road commissioners’ court against him as a defaulter. The answer of the commissioners showed, in brief, as follows: On September 21, 1881, the road overseer returned Sims and certain others as defaulters, at a working of the public roads on September 20.

<p>1. Where a husband and wife had separated, the wife returning to her father, and the husband was killed by the father while the former was approaching the house of the latter at night, in company with another, it was admissible to show that the husband obtained his companion to accompany him, and stated to such . comrade that he had good news from his wife, and wished to meet her and see the defendant and family, with a view of taking her ' hack to his own home, and that his adventure was peaceful, and he meant no harm, having received a letter from his wife to meet her. Such statements were part of the res gestm.</p> <p>2. The difficulty between the defendant and deceased having arisen out of the domestic troubles-of the deceased and his wife, and the latter having left his house for that of her father (the defendant) riding horseback behind another man, it was admissible to show that this man was seen in a private and hidden place about a hundred and fifty yards from her father’s house, taking improper liberties with her.</p> <p>3. That the preliminary examination of a physician as to the pysical condition of the deceased, to show whether or hot the latter was in articulo mortis, made with a view to ascertain whether dying declarations were admissible, was conducted in the presence of the jury, was no ground for a new trial, where none of the declarations themselves were elicited, and none were stated.</p> <p>4. Attacks on the character of a witness by showing contradictory statements may be rebutted by proof of general good character for truth and standing in society.</p> <p>5. Where the question before the jury involved an attack on the person as well as on the habitation or property of the accused, it was the duty of the court to charge the law touching the defence of person and of habitation, and in regard to the kind of homicide, whether murder, manslaughter or justifiable homicide, and when the law, in respect to each phase which the facts in the case warrant, is fully and clearly explained in the charge it is no ground for a new trial.</p> <p>6. The charge was full, clear and explicit, and fairly presented the defences to which the defendant was entitled.</p> <p>7. If the deceased was a mere trespasser, with no evil intent, he was entitled to be warned off; and then if he did not leave, that degree of force necessary to make him leave could be used. Such, in substance, was the charge.</p> <p>8. "Where jurors are attacked, they may repel the attack by counter- ■ affidavits.</p> <p>9. The verdict was not contrary to law or evidence</p>

<p>Torts. Damages. Parties. Verdict. New Trial. Practice in Superior Court. Before Judge Hammond. Fulton Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>In all eases where an application is made for leave to file an information in the nature of a quo warranto, the presiding judge may look to the relations which the parties applying sustain to the matter to be inquired into; and if the facts show that the applicants have been guilty of such conduct as precludes them from making the inquiry, they will be estopped, and their application denied,</p> <p>(a.) The charter of a town provided for an election for councilmen on the third of January; under a mistake of law, the council, then in office, ordered an election to take place on January 7, and it was so advertised for ten days; at the election, four of the then'incu;ubents and one other person (who are the relators) offered themselves for election and were defeated, all or nearly all of the voters of the town taking part in the election; two days afterwards, the incumbents ordered another election to take place on the 14th of the month; this took place after five days’ notice; only seven votes were cast, and relators were elected:</p> <p>Held, that the relators are estopped by their conduct, and an application from them for leave to file a petition in the nature of a quo warranto was properly refused.</p>

<p>1. Although this court disapproves of the practice of incorporating original papers in the brief of evidence filed with a motion for new trial, yet where counsel for defendant in error have agreed in writing to such use, and the brief thus made has been approved by 'the presiding judge, the writ of error will not be dismissed. Parties who have agreed to such use of the records stand in pa? i delicto with those so using them, and cannot urge its illegality, on a motion to dismiss the writ of error.</p> <p>(a.) The papers are identified by the approval of the presiding judge, the transcript of the record certified and sent up to this court is regular, and it is doubtful if this court can go beyond this in discovering irregularities. The transcript on which the case is tried being full and apparently regular, the presumption is in favor of the court below.</p> <p>2. Where one claims to be a bona fide purchaser with four years’ possession, in order to relieve land from the lien of a judgment, the fact that he purchased with notice of the judgment does not constitute him a wrong-doer. He may be, notwithstanding this knowledge alone, a bona fide purchaser. Yet this may be looked to, in connection with other facts, in determining whether the purchase be bona fide or not.</p> <p>(a.) If it be shown that such purchase was made to hinder, delay and defraud, the creditor, or the circumstances show that such purchase was not made in good faith, but for the purpose of taking an undue advantage of the creditor, then he would not be a bona fide purchaser; but when a valuable consideration has been paid for the property, and the purchaser has entered into possession of the same as his own, and held for four years, then it is discharged from the lien of any judgment against the person from whom he purchased, notwithstanding the purchaser may have known of the existence of the judgment.</p>

<p>1. The holder of an unforeclosed mortgage cannot claim at law the balance of a fund arising from the sale of tho property covered by the mortgage, after paying the judgment under which it was sold, and which was older than the mortgage, but he can make such a claim in equity, and this could be done on a money rule, with proper allegations, showing the insolvency of the debtor and that the mortgage creditor would be without remedy, unless such fund were awarded to him.</p> <p>(a.) Certain property having been sold under a judgment, which was the oldest lien thereon, after satisfying it, the balance of the money arising from the sale should have been paid to an unforeclosed mortgage, in preference to junior judgments, und$r proper pleadings to claim it.</p> <p>2. Where property was sold under a mortgage ft. fa., which was the oldest lien thereon, after satisfying it, the balance of the proceeds of the sale -were properly paid to the holder of a- deed to the property, in preference to judgments against the grantor rendered subsequent to its date, to the extent of the debt which the deed was made to secure.</p> <p>3. Where counsel agreed, in writing, that the brief of evidence filed with tho motion for new trial was correct, the writ of error will not bo dismissed by this court, because such brief of evidence did not contain copies of certain documents, but only statements of their substance.</p>

Practice in Supreme Court. Practice in Superior Court. Jury and Jurors. New Trial. - Before Judge Clark. City Court of Atlanta. September Term, 1883. To tbe report contained in the decision, it is only necessary to add the following: The affidavits used on the hearing of the motion for new trial were identified by the judge’s initials, endorsed on each.

<p>1. Where ejectment was brought by a guardian, who relied on a deed made to him as such, there was no error in refusing to charge that he had no right to purchase the land unless an order had first been obtained from the superior court authorizing such purchase. The question of authority in the guardian to invest the funds of his wards was one between him and them, and in which the adverse party in ejectment had no concern.</p> <p>(a.) In this case the wards, after becoming of age, caused themselves to be made parties to the action which had been instituted by their guardian, and thereby ratified the investment made by him.</p> <p>2. A levy on real estate in these words, “I have this day levied the within ft. fa. upon seven hundred acres of land, more or less, as the property of defendant,” was void for uncertainty, and a sale thereunder conveyed no title.</p> <p>(a.) However correct a request may be as an abstract principle of law, if it is not applicable to the facts of the case, it should not be given.</p>

<p>Presumptions. Ordinary. Homestead. Levy and Sale. Forthcoming Bond. Before Judge Pottle. Glascock Superior Court. August Term, 1883.</p> <p>Reported in the decision.</p>

<p>Evidence. Damages. Malicious Prosecution. Practice in Supreme Court. Before Judge Willis. Muscogee Superior Court. May Term, 1883.</p> <p>The following, in connection with the decision, sufficiency reports this case: Green B. Rogers sued William L. Tillman for malicious prosecution. The prosecution which fonned the basis of this suit charged Rogers with the fraudulent sale of mortgaged property, and of this charge he was acquitted. On the trial of the present case, the original record of an affidavit of illegality, which had been filed by Rogers and tried in Harris superior court, was offered in evidence, together with the verdict and judgment thereon. Defendant objected to the verdict and judgment, on the ground that the paper was an original record of the superior court of Harris county, and that a certified copy was the proper evidence. A note, on the side of the bill of exceptions, states that “ counsel for defense consented to the admission of the affidavit of illegality, and admitted that the judgment, order of the court and verdict offered were the original.” The verdict and judgment were admitted. (The bill of exceptions is very confused on this subject. It states that the defendant offered the evidence, and objected and excepted to its admission. It probably means the plaintiff.)</p> <p>The court charged as set out in the decision. The jury found for the defendant, and a judgment was entered accordingly. Plaintiff excepted.</p>

<p>Criminal Law. Master and Servant. Contracts. Hiring. Before Judge Clark. Cftty Court of Atlanta. September Term, 1883..</p> <p>Reported in the decision.</p>

<p>Charge of Court. Husband and Wife. Principal and Surety. Debtor and Creditor. Before Judge Willis. Muscogee Superior Court. November Term, 1882.</p> <p>Reported in the decision.</p>

<p>1. "While generally an administrator may, in his discretion, relieve a debt, not barred in the lifetime of his intestate, from the operation of the statute of limitations, by a new promise to pay, yot, where he has filed a bill to marshal assets, and has brought the creditors , with their claims before the court, he could not arbitrarily relieve certain claims of the bar of the statute, and plead it as to others. Either he will be compelled to abstain from all interference in the matter, or, if allowed to interfere, it will bo upon the condition that he applies the same rule to all w'ho have equally meritorious claims.</p> <p>2. Usually the limitations applicable to a court of , law also apply to a court of equity, but the latter court may also interpose an equitable bar in accordance with its established rules, whenever, from lapse of time or laches oí the complainant, it would be inequitable to allow a party to enforce his legal rights, and may interpose, to prevent the bar from attaching, when, under like circumstances, it would be inequitable to permit a defendant to shield himself by pleading it.</p> <p>(a.) Corn having been furnished to amestate to sustain the live stock and persons working the land, and a note having been given by the administrator, signing as such, this was sufficient to indicate that the debt was that of the estate.</p> <p>(b.) There was sufficient in this case to entitle the plaintiff in error to submit his claim to a jury.</p> <p>3. Without the consent of the different claimants, a bill to marshal assets and distribute an estate could not be finally tried and the rights of the various claimants determined, until it should first be ascertained what fund there was for distribution.</p>

State. Bonds. State Depositories. Liens. Notice. Vendor and Purchaser. Officers. Before Judge Bran-ham, Floyd Superior Court. March Adjourned Term, 1883. An execution, issued by the governor against the Bank of Rome, as principal, and O. G. Samuel and certain other persons, as securities on its bond as a state depository, was levied on certain property as the property of Samuel, and Simpson & Ledbetter interposed a claim.

State. Bonds.' State Depositories. Forgery. New Trial. Before Judge Branham. Floyd Superior Court.. March Adjourned Term, 1883. The main facts of this case are the same as those in the* casé of Colquitt, governor, vs. Simpson do Ledbetter, just preceding, and the bond, execution, etc., there set out are-the same as involved in this case.

Principal and Surety. State. State Depositories. Bonds. Governor. Liens. Corporations. Estoppel Fraud. Before Judge Branham. Floyd County. At Chambers.' June 7,1883. The fácts reported in the case of Colquitt, governor, vs. Simpson & Ledbetter (the second case preceding this) sufficiently report the appointment of the state depository, the bond given by it and the execution issued thereon.

<p>Wills. Estates. Legacies. Before Judge Hammond. Fulton- Superior Court. October Term, 1882.</p> <p>Reported in tlie decision.</p>

<p>1. There was evidence sufficient to authorize the verdict, and the judge did not abuse his discretion in refusing to disturb it.</p> <p>2. The testimony of a witness, given on another occasion, like his sayings made elsewhere, may be resorted to for the purpose of impeaching him, provided a proper foundation is first laid for its admission. When the contradictory statements are made in affidavits, or in answer to written interrogatories, in the same case, there is no need of laying the foundation by calling the witness’s attention to them; but this applies only to impeachment, and not to the correction of mistakes of a witness.</p> <p>(a.) If testimony was properly rejected, the ruling of the court will be sustained, although he may have given an insufficient, or'even a wrong reason therefor.</p> <p>3. The weight to be given to the evidence of witnesses alleged to have been impeached, is not one of the material questions in the case, without allusion to which the charge would be necessarily defective. It is only incidental or collateral to such material point, and, therefore, a failure to charge concerning it will not require a new trial, where the attention of the court has not been called to it, and no request to charge concerning it has been made.</p> <p>4. A charge that admissions should be scanned with care by the jury, but that when clearly made out and proved, they were high and strong proof against the party making them, though somewhat inaptly expressed, was substantially correct, and will not require a new trial.</p> <p>5. There was no error in admitting testimony as to what disposition the defendant’s intestate said he had made of cotton while it was in his possession and under his control, such statements being made to a witness, who was endeavoring to obtain it from him in payment of a debt against him. This was admissible both as a disclaimer of title and to sustain witnesses sought to be impeached.</p>

Constitutional Law. Education. Richmond County. Tax. Bonds. Practice in Superior Court. Before Judge Pottle. Richmond County. At Chambers. January 19, 1884. This was a bill filed by certain .citizens of Richmond, county, alleging themselves to be tax payers, against the tax collector, sheriff, and board of education of Richmond county, to enjoin the collection of the school tax levied, by the board for the year 18S3.

<p>Administrators and Executors. Guardian and Ward. Trusts. Charge of Court. Minors. Evidence. Admissions. Witness. Before Judge Harden. City Court of Savannah. November Term, 1883.</p> <p>Reported in the decision.</p>

Evidence. Wills., Husband and Wife. Ambiguity. Continuance. Parties. Before Judge Stewart. Floyd Superior Court. March Term, 1883. On August 7,1882, D. B. Hamilton, George Hillyer and. Eben Hillyer, as executors, propounded for probate a paper as the last will of Alfred Shorter, deceased, with a codicil thereto. They set out the names of a number of persons as being next of kin of the testator. Citation issued, and was served and published.

<p>Executions. Levy and Sale. Practice in Supreme Court. Title. Fraud. Notice. Before Judge Fain. Ca toosa Superior Court. August Term, 1883.</p> <p>Reported in the decision.</p>

Criminal Law. Accomplice. Accessory. Witness. Evidence. Practice in Supreme Court. Before Judge Mershon. Appling Superior Court. October Term, 1883. Fletcher Lowery was indicted for the murder of John Brimage. On the trial, only one witness testified to the actual perpetration of the homicide, a woman, called Julia Blocker or Julia Bryant. Her testimony was, in brief, as follows: She had been living with defendant, with one or two interruptions, for two or three years.

<p>1. A carrier who receives goods to be carried over its own lines and over successive lines of transportation connected therewith, to be delivered at some distant point, acts as the forwarding agent of the owner in giving instructions as to the transportation of the’goods; and in case of a mistake by the first carrier in directing the goods, the last carrier will have a lien upon them for the freight earned by it, unless the owner gave notice of the route and the lines of road over which his goods were to be transported.</p> <p>2. If goods were shipped over a connecting line of roads, and there were two routes by which the terminal point could be reached, one of which wa,s designated by direction of the consignee, who' was also the owner, but they were, in fact, sent to the terminal point by the other route, ij£_ the road so wrongly receiving them knew of the direction as to their shipment when it received them, its transportation of the goods would be voluntary; it would have no right to charge freight for transportation, would have no lien on the goods for such charges, and could not retain possession for the purpose of collecting them.</p> <p>3. A demand by the consignee and refusal by the defendant to deliver the goods would be a conversion for which trover would lie; and the county where such demand and refusal occurred would be the proper venue of the action.</p> <p>4. Whether the carrier receiving and transporting the goods had knowledge of the direction that they should be transported by a different line, was a question of fact for the jury; and the marks on the goods, with other circumstances, could be considered in determining that question.</p>

<p>In cases of insolvency, partnership property is first bound to pay partnership debts, and the individual property of the partners to pay individual debts. ¡*</p> <p>{a.) Where a creditor held a mortgage on a stock of goods belonging to a firm and upon a horse belonging to one of the members of a firm, and by agreement between the owner of the horse and the holder of the mortgage, the horse was sold and the proceeds applied to an individual debt due by the owner to him, if subsequently the stoc-k of goods were sold and the proceeds brought into court, in a contest over the fund by the creditors of the firm, both the firm and its members being insolvent, the sale of the horse and'the application of the proceeds to the individual debt would not amount 'to an extinguishment of the mortgage yro tanto.</p>

<p>1. There was no error in holding that the defendants were bona fide purchasers of property sold under an order of court, notwithstanding a notification to them that it was being sold illegally; that the constable was selling without authority of law, anil that whoever boxisht it would get with it “a first-class lawsuit.” This was mere matter of opinion, unaccompanied by any reasons or grounds therefor; and moreover it was erroneous.</p> <p>2. Where a mule had been levied on under an execution returnable to a justice’s court, and a claim had been interposed, but the property not replevied, an order from the justice for the sale of the property and the bringing of the proceeds into court to abide the result of the case, in order to save expense of keeping and prevent loss by deterioration of value or by death, was not rendered invalid because it did not fully recite the facts authorizing the sale, and that defendant had the requisite notice of the same.</p> <p>¡(a ) Strictness of pleadings is not required in justices’ courts.</p> <p>■(6.) It will be presumed that the magistrate required proof of notice to the defendant.</p>

Year’s Support. Sales. Title. Husband and Wife. Equity. Before Judge Estes. White Superior Court. October Term, 1883. J. M. Yandigrift and Sallie Wheeler (formerly Yandigrift), as heirs at law of E. A. Yandigrift, deceased, brought ejectment against Charles Potts.

<p>Homestead. Husband and Wife. Parent and Child. Injunction. Receiver. Before Judge Stewart. Henry-County. At Chambers. January 23,1884.</p> <p>Reported in the decision</p>

Criminal Law. Witness. Practice in Superior Court. Jury and Jtlrors. Before Judge Estes. Lumpkin Superior Court. October Term, 1883. Thomas Roberts ancl James M. A. Stringer were indicted for the murder of Drura W. Gaddis. The indictment also charged Roberts as a principal in the second degree. Stringer was competed and sent to the penitentiary for life.

<p>Criminal law. Murder. Manslaughter. Reasonable Fears. Evidence. Dying Declarations. Before Judge Bower. Dougherty Superior Court. October Term, 1883.</p> <p>R. M. Johnson was indicted for the murder of John Cooper. On the trial, the evidence for the state was, in brief, as follows:</p> <p>Joseph W. Cooper, the brother of the deceased, had had a misunderstanding with the defendant in regard to. the right to sell soda water at a barbecue conducted by one Marshall Merritt, colored. Cooper claimed that Merritt had granted him the right to sell soda water there, and that, just as he was preparing to go, he received a note purporting to come from Merritt, stating that he had previously-granted the right to defendant, and requesting him not to bring his soda fountain to the place. Cooper was very indignant at this, and expressed himself in unmeasured and indecent language. Some two or three weeks afterwards, Cooper met defendant at the store of one Shackelford in Albany. This store was located near a store kept by Cooper, and in which his brother, the deceased, clerked. A little further on was a store kept by one Ratliff. Cooper had sent defendant word to stop and see him as he went home, and defendant, for that reason, had a pistol in his pocket. Cooper showed the defendant the note, and asked if the latter wrote it. Defendant pulled it out of his hand, tore it in two, and said that he did not know whether he wrote it or not. Cooper said, “ You don’t know your own handwriting ?” Defendant then denied it, and said that, if Cooper would go with him to the store of Ratliff, he would prove it. They started to Ratliff’s, and on the way other abusive language was passed between them. Cooper testified that on the way, defendant said that he did write the note, and was “man enough to stand up to it;” that he (Cooper) said, “Any God-damned man that would forge a note on a negro is a scoundrel, and as mean as a dog, and is not honest;” that defendant said he would not stand that; that Cooper replied, “ I don’t care whether you do or not; ” that defendant whirled round, put his hand in his pistol pocket, and pulled out his pistol; that Cooper pulled out his also; that defendant said, “ You draw your pistol on me ? ” to which Cooper replied, “ Yes, you drawed yours; ” that defendant invited him to go down to the river and fight it out; that Cooper said, “ Here is the place, and that they would fight it out there; that they started on again; that defendant whirled and caught Cooper with his hand; that Cooper struck defendant with his hand, kicked him, and struck him with his pistol, which defendant grabbed and wrenched from him, and saying,. ‘‘ You had the advantage .of me, but I have got you now,” stepped back and commenced firing; and that he fired the first shot nearly straight up, and the second a little lower. The other witnesses for the state testified that the parties started from Shackelford’s to Ratliff’s; that Cooper stopped on the road, stooped on the ground, and said, “ Here is the place to fight it out; ” that he struck at defendant with the pistol, slapped and kicked him, that defendant wrenched the pistol from his hand, and began firing at him. They did not see any pistol in the hands of defendant until he took the one from Cooper. About the time of the first or second shot, the deceased, the brother of Cooper, came from the store towards the place of the difficulty, going rather in the direction of his brother than of the defendant. He said, “ Joe, stop your damned foolishness, and come back in the store.” Defendant turned and shot him, and then turned and fired at Cooper, his original antagonist, wounding him. Deceased was in his shirt sleeves, and no weapon was seen about him. As defendant was preparing to fire again, one Jones caught him, and one Pinson, who was a connection of defendant by marriage, persuaded him to go to Ratliff’s store. Joe Cooper grabbed a pistol from the hand of a negro near by, and snapped it towards defendant. He testified that he had been drinking some, but was not drunk; that defendant was cursing him from the front of Ratliff’s store when he snapped the pistol at him; that he (Cooper) did not draw a knife,- and had none during the difficulty. The negro, from whom he said he obtained the pistol, testified that it was out of repair ; that he had it in his hand because he heard it was against the law to carry it hidden ; that he was employed by Cooper, and was crying to think he was shot; that Joe Cooper snatched the pistol from his hand near the door of Ratliff’s store, and went over to Ratliff’s, and snapped several times towards defendant.</p> <p>When the deceased started from the store to the place of the difficulty, he asked a person in there to remain until he came back, and said he was going to bring Joe Cooper bade</p> <p>Dying declarations were shown, which were proved by a witness substantially as follows:</p> <p>W. B. Bennett sworn, said: John Cooper is dead; I was with him the day before he died ; he talked sensible to me Sunday morning; he said he would never get over it; he died on Monday morning, and that was Sunday morning before sun-up ; I asked him how it occurred, and he told me that somebody told him that Joe Cooper ancl defendant were having a difficulty, and he ran.out there, and told Joe to stop his damned foolishness, and come in and attend to his business, and he said he turned his side to defendant, and defendant shot him. He said defendant had fired two shots then; the third shot hit him, and the fourth shot hit Joe. He said he took no part in the fuss, only to tell Joe to stop his damned foolishness, and come into the house. He did not say what he had. He said he run out in his shirt sleeves.</p> <p>The evidence for the defendant was, in brief, as follows:</p> <p>Threats made by Joe Cooper were communicated to defendant, and he was told that the Coopers were very angry about the note ; and he said before going to town, that he supposed the Cooper boys were going to “ tackle him.” His brother asked him what about. He said about some foolishness, and that there would be nothing of it; that it was about a note, and the Coopers said they were going to kick him, if he came to town that evening. He went; was met by Joe Cooper at Shackelford’s store; they started to Ratliff’s to settle the question as to the writing of the note. Cooper stopped on the way; said that was the place to settle it; called defendant a God-damned coward; told him he was afraid to draw his pistol, and pulled out his own, defendant having his hand in his pocket. Defendant said, “ I will give up; you have got the advantage of me.” Cooper slapped defendant with his pistol. Defendant threw up his hand, grabbed the pistol, took it from Cooper, stepped back, and fired on him. The deceased, John Cooper, who was a brother of Joe Cooper, came running up with a pistol in his hand. The defendant fired upon him, and then again fired upon Joe Cooper, and ran into Ratliff’s. Joe Cooper grabbed the pistol from his brother’s hand as the latter fell, and snapped it at defendant as he ran into the store.</p> <p>A witness for the defendant testified that the negro, who swore that the pistol last snapped at defendant was obtained from him, had previously told the witness that Joe Cooper did not get a pistol from him during the difficulty.</p> <p>The note about which the controversy arose was, in fact, written by one Jordan Merritt, a son of Marshall Merritt; and he signed his father’s name because he was at the head of the enterprise, and the father had told him to sign his name whenever he wanted to.</p> <p>The jury found the defendant guilty of voluntary manslaughter. He moved for a new trial, on substantially the following grounds :</p> <p>(1.) Because the.verdict was contrary to law and evidence.</p> <p>(2.) Because the court refused to allow defendant’s attorney to ask B. T. Jones, a witness for the state, whether he had not had a difficulty with Jim Johnson, a brother of defendant, and whether it made the witness have hard feelings toward defendant.</p> <p>(3.) Because the court admitted in evidence, over the objection of defendant’s counsel, the dying declarations of John Cooper, the deceased, the only evidence of his knowledge that he was in the “ article of death” being that of W. B. Bennett (and any other evidence that there is in the brief of evidence on this subject), who testified: “ I was with the deceased, John Cooper, the day before he died. He talked very sensibly to me Sunday morning. I was talking to him about being shot, and I asked him how it happened. He said he would never get over it. He died Monday morning, and this was between daylight and sun-up Sunday morning. I asked him how it oocurred, and he told me that somebody told him that Joe and Johnson were having a difficulty- out there, and he went out there when it occurred, and told Joe to stop his damned foolishness, and come in the house and attend to his business; and he said he turned his side to him, and Johnson shot him. He said Johnson had shot two shots then ; and he said the third shot hit him, and the fourth shot his brother, Joe Cooper. He said he took no part in the difficulty, only he run to tell Joe to stop his damned foolishness, and come into the house. He did not make any statement as to what he heard. He said he run out in his shirt sleeves.”—Objected to because not admissible under the evidence as dying declarations ; and that they were illegal in going beyond “showing the cause of the death and the person who committed the act,” by going into the details' of the difficulty, and the evidence of Dr. Hilsman, showing he did not think he was going to die on said Sunday morning.</p> <p>[Note by the court: “Approved as true, except as to the argument and conclusions of movant.”]</p> <p>(4.) Because the court refused to let the defendant prove by Henry Johnson, that the defendant had been put on notice by one Crawford Merritt, the morning of the difficulty, that if he came to town that day, there would be an a—se kicking; and in holding that “ the witness, Henry Johnson, might be biased, and may not state it right —he may make a mistake :”—said Merritt having denied giving said notice after being put on the stand by defendant, and defendant wishing to show by the witness that he did get the information from Merritt; and the' court erred in ruling, “ I will reject the testimony for any purpose except to impeach the witness. I will allow it only in the way of impeachment of the witness.”</p> <p>[Note by the court: “Approved as true, only so far as it states that the evidence was rejected as hearsay, except as impeaching testimony of the witness, Crawford Merritt, whose sayings were sought to be proved. The court did not hold that the witness, Henry Johnson, was biased, etc., but merely stated that evidence of this character should be rejected for reason of that charhcter; besides the sayings of defendant showing same facts were admitted.”]</p> <p>(5.) Because the court refused to let defendant’s counsel ask the witness, Henry Johnson, introduced by the defendant, the following question: “ This conversation Mr. Walters asked you about, when you were coming on to town Avith Bob Johnson, state what he said about what had been told him, and about what he had heard the Coopers were - going to do to him; state all that was said to you by Johnson, as to what he had. heard the Coopers Avere going to do to him.” On objection of state’s counsel, because a leading and direct question, the court erred in ruling. “ I think it is leading. You can ask him the whole conversation.”</p> <p>[Note by the court: “This ground is substantially correct, as will appear by the brief of evidence; the whole conversation was allowed to be stated, and was stated. Defendant’s counsel were merely prevented from asking leading questions, arid when the Avitness paused, they Avere allowed to ask what else did he say, etc.”]</p> <p>(6.) Because the court allowed the state to prove by the witness, H. W. Bourne, over the objection of defendant’s counsel, that the same was illegal, and made out of the presence of defendant, that John Cooper said, when he Avas going out the store, at the time of difficulty, that “ he was going out to bring Joe Cooper back.”</p> <p>(7.) Because the charge of the court is inapplicable to the law and facts in this case, in this: that it totally failed to refer to the right of the defendant to defend himself against the brother of Joe Cooper (to-wit: John Cooper), Joe Cooper being the one with whom the difficulty was pending when John Cooper came up. The court, instead of charging as it did on that point, as set but in said charge, should have further charged, that if defendant was engaged in a difficulty with Joe Cooper, under which he would have been justifiable for killing him under the rules given, and the brother of Joe Cooper, John Cooper, pending that difficulty, and you are satisfied from the evidence in the case that defendant had such fears as before charged you, and that the defendant believed, or had reason to believe, that John Cooper came to assist his brother, under the circumstances before given you in charge, then you should acquit the defendant, or the idea embraced in this point. This should have been given the jury in charge, so the jury might understand the rights of the defendant in this case as against one who might have manifestly have intended to aid his brother who was in the wrong.</p> <p>[Note by the court: “Disapproved as untrue, being merely the inferences, conclusions and argument of defendant or his counsel.”]</p> <p>(8.) Because the court erred in charging: “Under this bill of indictment, the finding of the jury can be one of several verdicts, to-wit: 1st, the general verdict of not guilty; 2d, the general verdict of guilty, which would mean, guilty of the offense of murder; or 3d, a verdict of guilty and recommendation by the jury of imprisonment for life, as the punishment; 4th, or, you may find defendant guilty of voluntary manslaughter;” in connection with which he gave the following: “ In this trial, the jury are the judges of the law and facts in the case. This does not mean that the jury can make law, or pervert, or misconstrue law wilfully. They are bound by the law as it is' written in the law books, and given them in charge by the court, as far as given in charge. These are the means, and only means, by which they are to learn what ■the law is. And after thus learning what the law is, the jury are to judge of its application to the case, and its effect, in -view and connection Avith the evidence in the case, keeping in view that all the law applicable to every phase of the case may not always be given in charge.”</p> <p>[Note by the court: “Disapproved as incorrect. It does not correctly state the connection in which the charge on the subject of juries being judges of the law was given. That portion of the charge followed immediately after the following, to-wit: ‘You will be governed by the law and evidence in this case in determining which of the above stated verdicts you will find.’ ”]</p> <p>(9.) The court erred in charging, after reading sections 4319, 4320, 4321, 4322, 4323, 4324, 4325, 4326, and from 4330 to 4335, inclusive, of the Code, as follows: “When the Killing is proved to have been done by defendant, malice is presumed, etc., “ as set out in the general charge below, down to and including the words “ malice, may also be implied from a wanton and reckless use of deadly weapons, and a trifling with human life;” and then left that portion of his charge, and proceeded immediately to another distinct part of his charge, to-wit; “dying declarations,” and charging the jury as follows on that subject: “Dying declarations are admissible in evidence when it appears that the person making them was conscious of his impending death, and when made in the article of death, whether such death was approaching slow or fast,” etc., which are claimed as errors, because unwarranted by the evidence and contrary to law; and the court spoke of them as dying declarations of the deceased, and put them before the jury as prima facie evidence as such; and after calling the jury’s attention to the “ article of death,” added: “ Whether such death was approaching slow or fast ”—stating that the court had admitted them as such dying declarations prima facie, there being no other evidence than- that on which the court did admit them; and he failed to call the attention of the jury to the character and weight of such evidence, or what facts could be proved by such declarations, whether they were utterances consciously made m the article of death, when the hope of life was extinct, and that the sole purpose of such evidence was to prove the cause of the death and who committed the act—that it was only admitted as a matter of necessity in the absence of higher and better evidence; and also failed to charge the jury that such evidence should be closely scrutinized, especially as to the condition of deceased’s mind, and as to whether it was a partial or full statement, whether biased or unbiased.</p> <p>[.Note by the court: “Approved as true, only so far a* it gives and states that portion of the charge given on the subject of malice and dying declarations. There was no request made to give any further explanation of the subject of malice, and it is not true that ‘ I, left that portion of my charge and proceeded immediately to another distinct partbut I continued my charge as I had it written. There was no request to amplify the charge on the subject of dying declarations, and the conclusions and inferences stated in this ground, are not certified to as true.”]</p> <p>(10.) Because the court erred in his charge on the subject of reasonable fears, as set out in the charge below.</p> <p>(11.) Because of the following charge of the court; “The evidence to warrant a conviction should be of that satisfactory and conclusive character that excludes reasonable doubt of the defendant’s guilt of the offense he is found guilty of, and he is entitled to the benefit of such reasonable doubt, if such exist, in regard to the offense being murder, for the purpose of reducing it to manslaughter, and of such reasonable doubt of the offense being manslaughter to an acquittal. A reasonable doubt is. such a doubt as a reasonable man would entertain after a careful consideration of a matter of important concern to himself, that prevents his coming to any satisfactory and definite conclusion in regard to the same.”—Objected to because too meagre and restricted to give the jury full liberty to apply reasonable doubt to each and all the material points in the case necessary to constitute the offense charged, they being restricted as to reasonable doubt as to murder or manslaughter, and it did not apply as to whether John Cooper intended to aid or assist his brother in the difficulty pending, or make a felonious attack himself on defendant; nor did it authorize the jury to exercise its right as to reasonáble doubt in weighing the evidence, or in coming to the conclusion of the intention of the parties by their acts, or' whether he acted under the fears of a reasonable man or not.</p> <p>[.Vote by the court: “Approved as true only so far as it gives a copy of that portion of the charge set out in this ground. The argument and conclusions stated in this ground are not certifled as true, and no request to amplify this part of the charge was given.”]</p> <p>(12.) Because of newly discovered evidence.</p> <p>The charge of the court, omitting that part as to conflicting and impeaching testimony, the weight of evidence,, and the form of the verdict was as follows :</p> <p>“Under this bill of indictment, the finding of the jury can be one-of several verdicts, to-wit: 1st, the general verdict of not guilty; or, 2d, the general verdict of guilty, which would mean guilty of the offense of murder; or, 3d, a verdict of guilty and recommendation by the jury of imprisonment for life as the punishment; or, 4th, y©u may find the defendant guilty of voluntary manslaughter.</p> <p>“You will be governed by the law and evidence in this casein determining which of the above stated verdicts you will find.</p> <p>“In this trial, the jury are the judges of the law and facts in the-case. This does not mean that the jury can make law, or pervert or misconstrue law wilfully. They are bound by the law as it is written. in the law books, and given them in charge by the oourt as far as given in charge. This is the means, and the only means, by which they are to learn what the law is, and after thus learning what the law is,. the jury are to judge of its application'to the case, and its effect, in. view and in connection with the evidence in the case, keeping in view that all the law applicable to every phase of the case may not. always be given in charge.</p> <p>“In order to enable you to determine what verdict you will find* under the law and evidence in this case, it will be necessary for you to know what is the law in the case—what in law amounts to justifiable homicide, what to murder, and what to manslaughter, and other rules of law by which you should be governed in determining your-verdict. I will proceed to give you the law in charge, first by reading: to you sections 4319, 4320, 4321, 4322, 4323, 4324, 4325, 4326, 4330, 4331,. 4332, 4333, 4334, 4335. When the killing is proved to have been done by defendant, malice is presumed, and he should be found guilty of murder, unless the proof discloses such facts and circumstances as will reduce the killing from murder to manslaughter, or show it to be justifiable. It is not necessary that there should be any actual personal ill-will by defendant towards deceased to constitute the malice that would make the offense murder. Nor would every killing by •one who had ill-will against the one killed amount to murder, but •each case would depend upon the facts and circumstances proved under which the killing was done. Malice may be implied where no •considerable provocation appears, and where all the circumstances ¡show an abandoned and malignant heart. Malice may also be implied where it appears from the evidence that there was no-necessity ¡at the time for the killing, and the facts and circumstances were :not such as to excite the fears of a reasonable man that a serious personal injury was about to be inflicted upon him, or that the person • doing the killing did not really act under the influence of those fears, 'but in a spirit of revenge. Malice may also be implied from a wanton and reckless use of deadly weapons and a trifling with human life.</p> <p>“Dying declarations are admissible in evidence when it appears 'that the person making them was conscious of his impending death, ¡and where made in the article of death, whether such death was .approaching slow or fast. The court, after hearing evidence upon'the ■subject of the person’s consciousness of his condition, and upon the question of approaching death, has admitted, prima facie, before you in ■this case, the dying declaration of John Cooper. It is now for you to ■determine first whether the evidence sufficiently showed that he was •conscious of his approaching death, and that his death was really approaching, to authorize the admission of said declaration, and if not, you should disregard the dying declaration altogether; but if ;you think such evidence was sufficient for the introduction of such declaration under the rules, as I have given you, you should then • consider such declaration as evidence in the case, together with the •other evidence. * * *</p> <p>“ The fears of a reasonable man don’t mean the fears of a coward, but of a man reasonably courageous, reasonably self-possessed.</p> <p>(Read section 4331.) “The offense meant to be the subject of the fears of defendant under this section are two-fold. The one meant for yorir consideration in determining whether the offense is murder or manslaughter, is the offense and fear of committing a serious personal injury, not amounting to a felony, by the person killed on the person doing the killing. And the one meant for consideration in determining whether your verdict should be manslaughter or justifiable homicide, is the offense and fear of the person killed committing by violence or surprise a felony on the person doing the killing. A felony is an offense punishable by law, either by imprisonment in the penitentiary or hy death. All other offenses are misdemeanors, and not felonies.</p> <p>“To illustrate: If a person were to attempt a serious personal injury upon another with his hands and without a weapon, usually this would not be a felony. On the other hand, if a person attempt to commit a serious injury upon the person of another with a weapon likely to produce death, or without such weapon, under circumstances that actually endanger the life of the other, with intent to kill, usually it would be a felony. It is important, in determining whether your verdict should be murder, manslaughter, or justifiable homicide, that you should consider and determine whether the offense the defendant acted in fear of, if any, was a felony or not. And if the evidence shows that there was an attempt to commit a serious injury on the person doing the killing, amounting to a felony or not amounting to a felony, it must also appear that the defendant really acted under the influence of those fears, and not in a spirit of revenge. And if the evidence shows that there was an attempt by the person killed to commit an injury on the person doing the killing, not amounting to a felony, and the person doing the killing did not act under the influence of any fears of such injury, but in a spirit of revenge, he wouid be guilty of murder. But if there was an attempt by the party killed to commit a serious injury on the person doing the killing, which did not amount to a felony, and even if defendant did not act under a fear of such offense, if the circumstances were such as to .ustify and arouse or excite the p¿. sion of the person doing the killing, and to exclude all idea of deliberation or malice,.either expressed or implied, so that the killing was the result of that sudden violent impulse of passion, the defendant would not be justifiable, nor would he be guilty of murder, but it would be voluntary manslaughter. And further, the bare fear of either of the offenses of committing a personal injury by the person killed on the person killing, would not be sufficient to justify the killing. The facts and circumstances at the time of the killing, as shown by the evidence, must have been sufficient to have excited the fears of a reasonable man that a bodily injury, amounting to a felony, was about to be inflicted on him,to have justified the killing on the one hand; and on the other, that the circumstances were sufficient to excite the fears of a reasonable man, that a bodily injury, not amounting to a felony, was about to be inflicted on him, to reduce the killing from murder to manslaughter. It would be no excuse for the killing that the defendant acted under such fears, unless the evidence shows that the circumstances were sufficient to excite the fears of a reasonable man. There must be a reason shown by the evidence for, the fears of a reasonable man. Bears without a reason, and the fears of a coward, are not the fears of a reasonable man, and are no excuse for killing. On the other hand, if the circumstances, as proved by the evidence, were sufficient to excite the fears of a reasonable man that a felony was about to be committed on him by the person killed, and it appears that the defendant really acted under the influence of those fears in doing the killing, and not in a spirit of revenge, he would be justifiable, whether in fact there was any real danger or not; or, if the circumstances proved were sufficient to excite the fears of a reasonable man that c- bodily injury, less than a felony, was about to be inflicted on him by the p jrson- killed, and that he acted under the influence of those fears in doing the killing, and not in a spirit of reveuge, the killing would be reduced from murder to manslaughter, whether the party doing the killing was in ally actual danger at the time or not.</p> <p>‘ ‘ To make a necessity for killing another in self-defence an excuse for the killing, it must be a present necessity, a necessity at the time of the killing; previous danger that had passed over, and did not exist at the time of the killing, would be no excuse. The necessity for the killing in self-defence must not be provoked and brought about by the unlawful and violent act of the party doing the killing. If one unlawfully provokes, brings about and forces an attack from another that endangers the person so provoking and bringing about such attack, such danger or necessity for killing the attacking party would be no excuse for killing him.</p> <p>“In determining whether or not the circumstances were sufficient at the time of the killing to excite the fears of a reasonable man, either that a felony, or an offense less than a felony, was about to be inflicted by the party killed on the person doing the killing; or whether or not the defendant acted under the influence of those fears, or in a spirit of revenge; or whether or not there was a necessity for killing in self-defence existing at the time of the killing; or whether the circumstances were sufficient to cause a reasonable man to believe that such necessity existed; and whether defendant really, in good faith, acted under the influence of such belief in doing the killing, you will consider all the facts and circumstances given in evidence in the case; consider the position of all the parties present, who was armed and who not, the conduct of the parties at the time or before and after-wards, so far as will afford you any light; the object of the parties being present; their intentions and acts, so far as you can arrive at them from the evidence in the case. If, after a careful consideration of the evidence and law of the case, you should believe that the defendant killed John Cooper, as alleged in the bill of indictment, and at the time of the killing the circumstances were not sufficient to excite the fears of a reasonable man that John Cooper was attempting to commit a serious personal injury on defendant, and that there was no necessity for the killing to prevent such injury, but that it was done in a spirit of revenge, you should find the defendant guilty of murder.</p> <p>“If you believe from the evidence that the circumstances were not sufficient to excite the fears of a reasonable man that John Cooper was manifestly intending and endeavoring, by violence or surprise, to commit a felony on the person of defendant, but were sufficient to excite the fears of a reasonable man that John Cooper was attempting to commit a serious personal injury, not amounting to a felony, on defendant at the time of the killing, and that the defendant really acted under the influence of those fears in doing the killing, and that there was no other provocation for such killing, you should find him guilty of voluntary manslaughter.”</p>

<p>A. testator’s will provided that a certain lot and premises, then occupied by him, should be assigned to his executor thereinafter named, or purchased by him, if sold at public outcry, in the division of the property and effects jointly held by the testator andhis brother, provided the same could be obtained at a reasonable price, and that, when so acquired, his wife and unmarried children be permitted to occupy the same, free of rent or other charges, during her widowhood, and at the death or marriage of his said wife, said lot and premises should be sold by his said executor, and the proceeds thereof should be equally divided among his ' children and the lineal descendants of such as might be dead, etc. The executor obtained a conveyance from the brother of the testator of his interest in the property, to be held and disposed of as provided by the will. With the knowledge of this fact, the legatees settled with the executor, leaving him in possession of this property. He returned it for taxation each year, as part of the estate of the testator, and made returns to the ordinary until 1862, when the funds in his hands were exhausted. In 1875, and other years thereafter, at the request of the executor, one of the testator’s children made advances, in order to pay taxes and make necessary repairs. The bills for these amounts were approved by the executor as charges on the estate. After the death of testator’s wife, his administrator de bonis non sold the property,'and filed a bill for direction as to the distribution of the proceeds:</p> <p>Held, that such advances were a proper charge upon the estate. While the will may have created a life estate in the widow and unmarried children of the testator, yet the language used shows that he intended to create a quasi tenancy at sufferance or will;' that the widow should occupy the house, free of rent and free from the payment of taxes and the duty to make repairs, the title being in the executor. Therefore, the principle that a life tenant is bound to pay taxes and make repairs is not applicable.</p> <p>(a.) If the widow were a life tenant, the executor having no means with which to pay taxes and make repairs, and the life tenant being unable to do so, if another person advanced money for this purpose, at the instance and with the approval of the executor, it would be a charge against the estate which a court of equity would enforce, it being a trust estate and the title being in the executcr.</p> <p>(5.) The bar of the statute of limitations did not apply; and if it were otherwise, a court of equity would te.mcve it, under the circumstances of this case.</p>

<p>1. Where a distress warrant was sued out and placed in the hands_ of a levying officer, he was authorized and commanded to collect^2 it, and his authority to collect the whole included authority collect a part of the amount. A partial payment to him discharged the defendant pro tanto, and the plaintiff must look to the officer for tfte amount so paid.</p> <p>(a.) If a defendant in a common law execution makes an affidavit of illegality, on the ground of partial payment, he must pay the amount which he admits to be due, or the ievying officer v/ill proceed to raise that amount; but in cases of distress warrants, an affidavit that the sum or some part thereof is not due is sufficient,</p> <p>(A) The verdict of a jury in a justice’s court having failed to allow any credit for a payment by the defendant to the collecting officer of a part of the amount claimed to be due, certiorari was the proper remedy; and it was error to tax the costs of such a certiorari on the the party petitioning for it.</p> <p>2. The regular day for holding a justice’s court was Friday; the hearing of the case was postponed until the next day, as the defendant • alleged in his petition for certiorari, by his consent; the answer of the j ustice stated that the defendant consented to postpone it. until the following Monday; a traverse was filed to this portion of the answer, but was stricken by the court as immaterial:</p> <p>Held, that a justice’s court is one of limited jurisdiction, and has only such powers as are conferred upon it by law. It must be held at. fixed times and places, and all continuances must be from term to ■ term. A judgment rendered out of term is void.</p> <p>(a.) If a justice continued a case contrary to law, the consent of parties thereto could not make it valid.</p> <p>(&.) It is not decided that justices’ courts may not hold a term lasting for more than one day, if the times are fixed in advance. It • would seem that this might be done.</p>

Contracts. Before Judge Stewart. Monroe Superior Court. February Term, 1883.

<p>1. The verdict is sustained by the evidence.</p> <p>2. The title to property set aside to a bankrupt as an exemption is absolutely in him, and there is no law prohibiting him from alienating or encumbering such exempted property, though done before his final discharge. «</p> <p>(a.) Where articles of agreement set forth mutual covenants, they constituted a valuable consideration from each party to the other. In this case the articles contemporaneous with ihe note, deed and bond for titles, constitute with them one contract. They must all he construed together, and the consideration of the main transaction runs through all the branches.</p> <p>(6.) The true test of testamentary character in a writing is, whether its effect appears to be deferred till the death of the maker and appointed to take place in that event.</p> <p>3. While parol testimony is inadmissible to alter the terms and conditions of a written contract, it is admissible to show' the circumstances under which a note was made, to explain the consideration and show that it was not, in fact, based on the consideration which appeared upon its face, but what its true consideration was.</p> <p>4. In a contest between an administrator and another concerning certain lands, tax returns made by the intestate of the administrator, in which he returned the lands as the property of the other party, were admissible in evidence as admissions against his title.</p> <p>5. A policy of insurance issued to the intestate, insuring the improvements on the land as his property, was properly rejected from evidence. The policy was the statement of the company, not of the insured, and it was irrelevant as a contradiction of the admissions of the intestate, because he still had an insurable interest in the . property.</p> <p>6. Under a bill by an administrator to recover certain land conveyed by his intestate, the existence of judgments and claims against the estate and the insolvency of the decedent being admitted, it was irrelevant to go into a full exhibition of the liabilities of the estate.</p> <p>(a.) A grantor cannot plead against his conveyance to his grantee and the possession of the latter his own fraud, nor can an administrator plead his intestate’s fraud for that purpose.</p> <p>7. One ground on which it was sought to set aside certain articles of agreement being the imbecility and incapacity of a party thereto, and his administrator, who brought the action after his death, having testified at length to establish that the decedant had always been a man greatly deficient in business sense andforce, and that for many years prior to his trade with defendant he had been incompetent to make trades, it was admissible to show, on cross-examination, that the witness himself had traded with the decedent in regard to interests amounting to $10,000.00, although it was five years prior to the making.of the contract in controversy. In such cases the inquiry is not .usually confined, to precise and narrow limits of time.</p> <p>S. Where a witness has been examined by interrogatories, a party may withdraw his cross-interrogatories and then object to the use of answers thereto by the other side, if they are objectionable, as coming from the offering side, provided that such withdrawal is made before the interrogatories are read to the jury; but upon an oral examination, a party asking a cross question and eliciting an unfavorable reply, which the other side could not have introduced, cannot have the legitimate answer to his own question ruled out; and the same principle applies to cross-interrogatories and answers after they have been read to the jury.</p>

<p>1. As to the granting of letters of administration, a court of ordinary is a court of general jurisdiction, and its judgments are not void because the proceedings upon their face do not show all the prerequisites of petition, publication, giving bond and the like. JS or is such a judgment of a court of general jurisdiction void because its proceedings fail to conform to the rules of practice prescribed by law for the transaction of its business. Such failures are irregularities, and cannot be objected to except in the court giving the judgment, and on a proceeding for that purpose; and the presumptions attaching to the judgments of any other court of general jurisdiction are applicable to such judgments of the court of ordinary.</p> <p>(a.) This case differs from those in 67 Ga., 227 et seq.; 9 Id., 133; 12 Id., 526.</p> <p>(3.) It cannot be inferred that the bond required by lav/ was not given, because it is not recited in the order appointing an administrator; nor can the judgment be collaterally attacked by evidence going to show a non-compliance with the law in this respect.</p> <p>(o.) When the time prescribed by law for such publication had not elapsed before the first day of the regular term of the court of ordinary, and the court was adjourned to another day, and the publication having been completed, letters of administration were granted, such judgment was irregular, hut not void, and could not be collaterally attacked.</p> <p>(d) If administration were granted out of term, and such fact were made to appear, the judgment would be void; but courts of ordinary have power to grant letters of administration at an adjourned term thereof.</p> <p>(e.) Where administration was granted in 1867, and no direct attack ever made thereon, nor any collateral attack until 1883, and during the intervening time important rights vested under the administration in innocent parties, it would require a clear and strong case to justify a court of equity in overturning it—a case of fraud actual and intentional upon .the part of the claimants of right under it.</p> <p>2. Equity has concurrent jurisdiction with courts of ordinary over the settlement of acounts of administrators.</p> <p>(a.) Irregularities in the stating part of a bill or its prayer, or in the decree founded thereon, although grave, will not render the proceeding void, at least as to persons acquiring rights thereunder bona fide.</p> <p>(b.) An administratrix having been a party to a hill, and consented to a decree thereunder, the distributees of the estate, whether minors, married women or adults, are represented by her, and in the absence of collusion between her and the other parties, are bound by the decree.</p> <p>(c.) The administratrix being a party to the bill, and having been appointed guardian ad litem for the minors, and not declining to act for them in that capacity, no order making them parties by such guardian was necessary in order to bind them.</p> <p>(d.) Where a decree has remained undisturbed for eleven years, and parties now complaining of it have received benefits under it, which they could not otherwise have obtained, and parties could not well be placed in statu quo, this court will be slow to upturn such a decree for mere irregularities. Such is the policy of the law.</p> <p>3. There is no error in any of the rulings and charges of the court complained of.</p>

Railroads. Master and Servant. Garnishment. Before ■Judge Eve. City Court of Richmond County. November Term, 1883. Bailie & Brother sued out a garnishment, based on a .judgment in their favor, against E. G. Mosher and F. G. Mosher, and summons of garnishment was served on the Augusta and Summerville Railroad Company. The garnishee answered that it owed F. G. Mosher nothing.

Railroads. Damages. Negligence. Warehouses. Before Judge Harden. City Court of Savannah. July Term, 1883. Gleason & Harmon brought suit against the Central Railroad, to recover for a mule alleged to have been fatally injured by stepping into a crack negligently left by defendant in the flooring of its cotton yard, where this and other dray mules were commonly driven. This case will be found reported in 69 Ga., 200.

<p>Criminal Law. Larceny. Before Judge Lawson. Morgan County. At Chambers. January 2,1884.</p> <p>Reported in the decision.</p>

Criminal Law. Murder. Jury and Jurors. Charge of Court. Practice in Supreme Court. Homicide. Before Judge Hammond. DeKalb Superior Court. September Term, 1883. To the report contained in the decision it is only necessary to add the following: Defendant introduced no evidence.

Liens. Judgments. Debtor and Creditor. Husband and Wife. Before Judge Pottle. Wilkes Superior Court. May Term, 1883. Sims & Company, Franklin and the Bank of Washington, who were judgment creditors of B. J. Jordan, ruled the sheriff for a fund in his hands arising from the sale of certain property as belonging to Jordan.

<p>1. A joint suit upon an account made by a firm was not saved from the bar of the statute of limitations by the individual acknowledgment in writing of one of the partners and his promise to pay. This was a different and new cause of action from the account sued on and was against a new and distinct party, and an amendment setting it forth was not germane to the original suit, and was properly stricken.</p> <p>2. In cases of mutual accounts, which may be pleaded by way of set-off, if one of the parties should sue the other, the bar of the statute of limitations does not generally attach, unless the last item in the account is barred; aliter, where there is no mutual account, but a mere credit of a payment made on an account held by one party.</p> <p>3. There being no evidence in this case to take any of the items of account out of the bar of the statute of limitations, there was no error in granting a non-suit.</p>

<p>1. Where a suggestion of diminution of the record and a motion to dismiss the case are made at the same time, the former has precedence.</p> <p>2. Where the clerk transmits to this court original records of the court helow, instead of sending up a complete transcript or copy of the record, it is such an effort to send up the record that upon it a diminution of the record may be suggested, if made in time, and the plaintiff in error be not in laches.</p> <p>S. -A record was transmitted to this court too late for a hearing on the circuit to which it belonged. When called at the heel of the entire docket (it being the last day for the hearing of arguments, and this being the last ease but one), a suggestion oí a diminution of the record and motion to dismiss were both made. It appeared that the only papers here as a copy of the 'record were certified by the clerk to be “a true copy from the records of the minutes of the said supeiior court,” and that plaintiff in error had had ample time to correct this error and to supply the deficiency:</p> <p>Held, that the case will be dismissed.' The plaintiff in error has lost his opportunity to correct or supply the record by his own laches. 4. Obliterations appear of five lines of the first page of the bill of exceptions, so as to break the connection of sentences, and destroy the sense of that paper, without any explanation in respect to the person who did it; and this vitiates the writ of error and makes it uncertain, if not totally unintelligible. Nothing can cure such a defect.</p>

<p>While the lien of a laborer attaches, and the right to enforce it accrues, upon the completion of the contract and when the labor has been fully performed, yet the mere existence of the lien does not give the laborer a right to come into court and claim money arising from the sale of property under an execution in favor of another party. Before this can be done, there must be a judgment of foreclosure, and process must issue thereon.</p> <p>(a.) Where a fund was raised by a sale under a mortgage fi. fa., but the sheriff was notified to hold up the fund on account of certain laborers’ liens which had been foreclosed for labor performed prior 1 to the foreclosure of the mortgage, and upon the trial of a money rule, exception being taken to the fi. fas. of the laborers, they were withdrawn, the hearing suspended, new proceedings taken to foreclose the liens, and upon the new fi. fas., so obtained, the money was awarded to them, such ruling was error.</p> <p>(&.) If the process issuing upon a complete affidavit of foreclosure be .. defective, it may be amended and made to conform to the affidavit ; but the affidavit of foreclosure cannot be amended.</p>

Evidence. Admissions. Witness. Practice in Superior Court. Before Judge Hammond. DeKalb Superior Court. September Term, 1883. A fi. fa. in favor of F. T. Powell against George W. Watts and Edward Watts was levied upon certain land as the property of Edward Watts, and a claim was interposed by William Watts. The fi.fa. was founded on an indebtedness created in 1866, and reduced to judgment in 1868..

<p>1. In the grant of letters of administration, the surviving husband or wife is first entitled to letters; then the next of kin at the time of the death, according to the law of relationship and distribution, are next entitled; but if the party dies testate, the person most beneficially interested under the will shall have the preference; and, as a general rule, to cover all cases not especially provided for, the person having the right to the estate ought to have the right of the administration.</p> <p>(a.) In case of a married woman who is next of kin, or where her let ters abate by her marriage, the husband is entitled to the administration, according to the discretion of the ordinary, as between him and other persons entitled thereto under any of the prescribed rules.</p> <p>(b.) 66 Ga., 290, considered and distinguished from present case.</p> <p>2. Where one as a creditor of a decedent applied for letters of administration, and upon a caveat being filed, the administration was claimed by the husband of the sole legatee under the will of one who had been the sole-legatee of the testator, and this case was carried to the superior court by appeal, there was no error in refusing to allow persons claiming to be the next of kin of the testator, concerning the administration on whose estate the contest was had, to be made parties, all of them being non-residents of the state.</p> <p>3. In order for a selection by a majority of the next of kin of a decedent of a person to administer on his estate to be admissible, they must signify their choice in writing. A selection by attorneys at law, claiming to represent them, was not sufficient without special authority in writing for that purpose.</p> <p>4. There was no error in refusing a continuance in order to enable the applicant to procure written evidence of the choice of the next of kin. The fact that he did not expect that this would be held necessary was not such a surprise as would authorize a continuance.</p> <p>5. If there were errors in the charge complained of, they were not such as materially affected the result and as would require a new trial</p> <p>(a.) This contest for administration should not be protracted so as to consume the estate.</p>

Parties. Judgments. Notice. Bes Adjudicata. Estoppel. Partition. Before Judge Estes. White Superior Court. October Term, 18b3. Mrs. E. P. Hayman (who alleged that she was formerly E. Y. Patton, of Henderson, N. C.) filed her petition for a partiton of certain lots of land in White county, claiming that she owned a one-eighth interest, and Childs and Nickerson seven-eighths interest.

<p>Municipal Corporations. Guano. Fertilizers. Laws. Railroads. Before Judge Estes. Clarke County. At Chambers. February 15, 1884.</p> <p>Reported in the decision.</p>

<p>. Landlord and Tenant. Liens. Pleadings. Executions. Before Judge Harris. Payette Superior Court. September Term, 1883.</p> <p>Reported in the decision.</p>

<p>Negotiable Instruments. Promissory Notes. Pawns. Collateral Security. Interest and Usury. Before Judge ' Bower. Dougherty Superior Court. October Term, 1883.</p> <p>Reported in the decision.</p>

<p>Constitutional Law. Elections. Courts. Before Judge Clarke. Randolph County. At Chambers. February 18,1884.</p> <p>Reported in the decision.</p>

<p>Principal and Agent. Master and Servant. Damages. Laws. Before Judge Bower. Dougherty Superior Court. October Term, 1883.</p> <p>Reported in the decision.</p>

Estoppel. Fraud. Vendor and Purchaser. Contracts. Consideration. Before Judge Simmons. Houston Superior Court. October Term, 1884. Roberts brought trover against Davis to recover a mule. The case was carried to the superior court by appeal. It was so amended as to be in the name of Roberts for the use of Bryan. The defendant filed the following pleas: (1.) The general issue.

Wills. Estates. Before Judge Harris. Oarroll Superior court. April Term, 1883. William B. Huggins, executor of Asa Huggins, deceased, filed his bill in 1880 for a construction of the will of his testator, the material parts of which are set out in the decision.

<p>1. Where the objection to the jurisdiction of the chancellor of a different circuit from that in which a case was pending to hear an injunction was not urged, but the chancellor certifies that lie understood the hearing of the case by him to be acquiesced in by counsel, the question not having been decided by the court below, is not the subject-matter of review here.</p> <p>(a.) This case differs from that in 67 Ga., 246, in that the record and bill of exceptions together show that the judge of the circuit was disqualified.</p> <p>2. Equity will restrain a trespass when the threatened injury is irreparable iu damages, or when the trespasser is insolvent, or when there exist other circumstances, which, in the discretion of the court, render the Interposition of the writ necessary and proper; among which is the avoidance of circuity and multiplicity of actions.</p> <p>3. Where land was bought for a firm, paid for with the money of the firm, and the title conveyed to two of the members for the firm; an implied trust arose in favor of such firm, the members were the equitable owners and tenants in common, and could mortgage the land.</p> <p>4. Under such facts, where there were five partners, four of whom gave a mortgage on property thus equitably owned by the firm, and where the mortgage was foreclosed and the land sold, if the proceedings were all regular, the sale operated to convey the interest of all the partners who joined in the mortgage, but did not pass title to the interest of the member who did not so join in it.</p> <p>(a.) The lien of the mortgage antedated the deed from the two members of the firm to the defendant in this case.</p> <p>5. Aft. fa. which has been levied, but under which no sale has been made, does not alter the title to land.</p> <p>6. If, upon the dissolution of a firm, one member took certain lands and agreed to pay a mortgage debt thereon, but failed and refused to do so, and conveyed the land to another person without consideration, to shield himself from the payment of this and other debts assumed by him, and the grantee gave bond for titles to still another person for this purpose, and it was so received by him, these conveyances would be Void.</p> <p>7. The mortgage fi. fa. having issued against the firm, though one of the members did not join in the mortgage, and the land having been sold and conveyed as the property of the firm, and the complainants in the present bill claiming a prescriptive title, while defendant claims to be a bona fide purchaser for value, and denies the possession of complainants, there was no error in granting an injunction until all these questions could be determined by the jury.</p> <p>8. The srie of the land under the Armstrong fi. fa. did not convey more than the equity of redemption. The mortgage was a prior lien thereon, and no irregularity in relation to it is shown.</p> <p>9. The fact that the defendant had made a deed to the land to one of the complainants would not prevent an injunction. The complainants all suing for the use of the firm, title might he shown in them or either of them. If the deed was defendant’s, it concluded her; if not, it would not affect her.</p> <p>10. The judge may always correct a bill of exceptions in the body thereof, so as to make it conform to the truth, if he chooses to do so. It would he better not to interline the hill of exceptions, but to make the corrections on the margin, or on a separate piece oE paper', and attach it before certifying. No alteration by the judge, certified to have been made by him, will cause a dismissal of the case, nor will an immaterial erasure or interlineation by counsel do so. Material' interlineations, additions or erasures, not made by the judge or certified to have been made before the bill of exceptions was certified, will authorize this court to dismiss the case.</p> <p>(a.) This court would not grant a mandamus absolute against a judge who should refuse to certify an illegible, disorderly, erased or in-, terlined bill of exceptions.</p> <p>(6.) The careful preparation of abstracts urged.</p>

<p>1. A substantial compliance with the method pointed out for foreclosing a chattel mortgage, is essential to a judgment of foreclosure.</p> <p>(a.) Where a chattel mortgage was given by C., trustee for E. C,, and and the affidavit to forclose it alleged that E. 0. was indebted, etc., C. being her agent, and credit having been given to the principal, such foreclosure was insufficient, and was properly dismissed.</p> <p>(■6.) Nor could this foreclosure be amended by alleging that the note was for the purchase money of the mortgaged property due by E. C.; that she promised to give her note and execute a mortgage to secure the same, having C. sign for her; but instead C. ¡Signed his own name, as trustee for her; that O. never was her trustee, and that the intention of all parties was to bind E. C. and the property,</p> <p>(c.l Whether there is not a remedy in equity. Quxre? ■</p>

<p>Bankruptcy. Exemptions. Debtor and Creditor. Before Judge Hutchins. Franklin Superior Court. September Term, 1883.</p> <p>Reported in tbe decision.</p>

<p>1. Attorneys have a lien for fees, both at common law and by statute, upon land recovered by them for their client.</p> <p>.2. After the attorneys had filed a'bill to enforce their lien for fees, one who purchased the land did so with notice, and did not acquire a title freed from the attorneys’ lien.</p>

<p>1. Certain forms aré necessary in order for a testator to put down lais intention on paper, so that the courts may reasonably be assured that he made and published the paper as his will, such as a certain attestation, signature, etc. But when that assurance is had, and the probate court has pronounced the paper to be the will of the testator, then it is the law of his property (with certain fundamental restrictions), and the question becomes, what did.the testator say, and what did he intend by that paper ? What he said in it, read in the light of the circumstances surrounding him when he made it, is what he intended to be done with his estate, and therefore what will be done with it. ' ■</p> <p>(■a.) Each will must be construed for itself, and, in large part, depends upon its own terms and the peculiar circumstances surrounding , the testator.</p> <p>(5.) Among the most important surrounding circumstances are the ■ recipients of testator’s bounty, theirrelations to him and associations with him, his uniform affection for them, or any interruption thereof.</p> <p>2. A vested remainder is one limited to a certain person at á certain time, or upon the happening of a certain event. The law favors ■ the vesting of remainders in all cases of doubt, and in construing wills, words of survivorship will refer to the death of the testator in order to vest remainders, unless a manifest intention.tothe contrary appears.</p> <p>3. The fourth item of a testator’s will contained the following provision : “ It is my will that my executors hold and have my two lots, numbers five and six, Eyles Tything, Heathcote Ward, and ■ also my lot number ten, First Tything, Reynol.ds.JV'ard, and all 1 improvements thereon, in trust to and for the use of mv daughter , Eliza Waters, for and during the term of her natural life, and after her death to and for the uso of her children, if any she shall have, share and share alike; and if she shall have no children living at her death, then in trust to and for the use of my daughters, Jane A. Bruen and Harriet Bryan, for their natural lives, and after their death, then in trust to and for the use of the children Of my said daughters, Jane A. Bruen and Harriet Bryan, share and share-alike forever.”</p> <p>The fifth item contained the following provision: “It is my will that my executors have and hold my lot number ten, Eyles Tything, Heathcote Ward, forever in trust to and for the use of my daughters, Jane A. Bruen and Harriet Bryan, for and during their-lives, and after their respective deaths, then in trust to and for-the use of the child or children of my said daughters, Jane A. Bruen and Harriet Bryan, their heirs and assigns forever, share- ' and share alike.”</p> <p>The tenth item contained the following provision: “It is my will that my executors hold and have my railroad stock, in trust to and. for the use of my daughter, Eliza Waters, for and during her life,, and after her death, then in trust to and for the use of her children, if any she have; and if none, then in trust to and for the-use of my daughters, Jane A. Bruen and Harriet Bryan, for and during their lives, and after their deaths,then in trust to and fortheuse of their issue, share and share alike.”</p> <p>Testator’s daughter, Eliza, died childless. Testator had grandchildren living when the will was executed:</p> <p>Held, that the fifth item of the will gave a life estate in common to the two sisters, Jane A. Bruen and Harriet Bryan, with remainder - to their child or children; and there being such children in essewhen the testator died, the remainder then vested, to be enjoyed', at the death of the surviving sister, and opened to take in such other children as were not in esse, but who came into being up to • the time when the enjoyment of the estate was to commence, ari®. all took share and share alike per capita.</p> <p>(a.) The fourth and tenth items differed from the fifth only in the • fact that the life estate of the two sisters, as well as the fee of their children, was contingent upon the death of Eliza Waters-without issue, and the life estate in Jane A. Bruen and Harriet-Bryan and the ultimate remainder to the children did not vest, until the death of Eliza Waters childless.</p> <p>(J.) This does not conflict with the judgment in 38 Ga., 154, though, .it may conflict with some of the reasons there stated; and when. that case was reversed, it went hack for a decree de novo.</p>

Deed. Mortgage. Notice. Vendor and Purchaser. Interest and Usury. Verdict. Pleadings. Before Judge Fain. Bartow Superior Court. July Term, 1883. To the report contained in the decision, it is only necessary to add that Wofford made to Mrs. Wyly a deed^absolute on its face, and on this the case of plaintiff in ejectment was based. Defendant in ejectment (Wofford) took from Mrs. Wyly the following instrument: “ I have loaned to Wm.

Landlord and Tenant. Jurisdiction. Equity. Before Judge Simmons. Bibb Superior Court. October Term, 1883. • W. A. Huff filed his bill in Bibb county against William Markham, of Fulton county, alleging, in brief, as follows: On October 16,1879, Huff, in connection with P. F. Brown, as his partner, leased from Markham a hotel in Atlanta, known as the Markham House, for $10,000.00 per annum, payable semi-monthly, if Markham so desired.

Title. Deeds. Appurtenances. Mining. Landlord and Tenant. Estoppel. Vendor and Purchaser. Notice. Practice in Supreme Court. Corporations. Held: owned, used and possessed, bought and sold and levied on and sold as a separate and independent estate. But a water-ditch may also be an appurtenant or incident to another estate. So that a tract or parcel of land, when sold either at private or public sale, often carries with it many other things which are not mentioned.

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>(a.) A promissory note having been produced from among the effects of a deceased debtor by his administrator, the presumption was that it had been paid, and the onus was on the party asserting the contrary to show it.</p> <p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>