Volume 73 — Georgia Reports

<p>Where a corporation, incorporated.under the laws of Alabama, wash only authorized by its charter to issue stock to the amount of one ■ hundred thousand dollars, when stock to that amount had been • issued, its charter power was exhausted; stock issued beyond'</p> <p>. that amount was últrci vires and void, and a subscription therefor-could not be collected by, the corporation, or by the assignee there- • . of occupying the place of such corporation.</p> <p>(a.)' A judgment rendered by the courts of a state in which a corporation is chartered, construing such charter with respect to the powers conferred therein, will be followed by the courts of this state. • .</p> <p>(6.) -This case differs from those in 65 (7a., 649, 750 ; 67 Id., 146. - -</p> <p>(c.) If one who subscribed to the stock of an insurance company ' after its charter power of issuing stock had been exhausted in-' duced insurance in that company on the part of any other person',-, by his acts as trustee or agent thereof, or on the faith of his subscription, an individual action on the part of the person so induced, would lie against him, but not an action by the company or its assignee for his subscription. " '</p>

<p>.When a person is .killpd by the running of the -train of a railroad company, the presumption that the. death was caused by the negligence of the company arises, and the burden of rebutting it rests upon such company; but this burden was successfully carried, under the facts of this case.</p>

<p>1. Where exceptions of fact are filed to a master’s or .auditor’s report’, such exceptions are the only issue's of fact to be submitted to the jury, so far as-the matters'referred' are' concerned; and when so submitted, the jury shall return a -yerdict on each exception seriatim. A general finding for one of- the parties is invalid. •</p> <p>2. Where the property of a 'corporation under mortgage was levied on under various other claims, and the company prepared to arrest the sale by affidavits of illegality, but an agreement was effected by the conrpany and.creditors represented, under which the objection was to be withdrawn, the equity of redemption of the property tobe sold and bid in for, the creditors, at a stated price,'no money was to be paid except the costs, and the bompany was to have a specified time in which to redeem the property, or on failr ure'to do so, the creditors were tp be interested in it in proportion - to their claims, and the sheriff assented to this arrangement, and - . -the property was bought by the agreed bidder for the creditors, this did not give other creditors the right to seek redress directly from the bidder at the -sale, by bill in equity, for the purpose of com-pelling him to pay the amount of the bid,, especially where the complainants had postponed all action for more than two years, where the sheriff had gone out of office, and where the other property of the defendant had, in the meantime, been sold and otherwise disposed of. -</p> <p>(a.) If a purchaser at.a sheriff’s sale fails or refuses to comply with . his bid, and the sheriff desires to relieve himself of liability, or to transfer it to the bidder, he should request the latter to comply with the terms of sale, and upon his failure or refusal'to do so, the sheriff may institute a suit against him in his own name, for.the use of the parties in interest, for the full amount of the bids; Of he-may re-sell the-property and proceed against him for the deficiency arising from such re-sale. But a court of equity' will not entertain jurisdiction, to "Compel a specific performance by the purchaser at the sale, at the instance of creditors who claim an interest in the proceeds thereof. ' , , (</p> <p>(!) ) The present bill is in the nature of a bill for specific performance,</p> <p>(c.) If the complaining creditors could take the sheriff’s place and proceed directly against the bidder, the same defences would be open to the latter as he would have against the sheriff. It is the failure to comply with the terms that gives the right of action, ' and any material deviation from those terms upon the part of the sheriff would defeat his recovery. If the bidder complied with the terms of the sale, the sheriff would have no cause of action.</p> <p>(d.) If the sheriff knew that the bidder purchased as the agent of others; and recognized.and treated with him. as such,' his right of action would not be against the agent, but .against the principal,.</p> <p>(«.,) If the sheriff was derelict in his duty, and exceeded his. authority •' in becoming á party to the agreement, and thereby became liable to the complaining creditors, the remedy was by rule or suit'against him personally, or on his official bond, and not by bill in equity against the purchaser. • ■ ■</p> <p>(/.) The complainants exhibited laches and want of vigilance in this case.</p> <p>■3. If there was any agreement to pay in full creditors who did not ;., enter into the agreement, the present case was not founded thereon, and no recovery could be had on that ground. •; .</p>

<p>Practice in Supreme Court. At February Term, 1884.</p> <p>. This case stood on the docket of the September term, 1S83, of the Supreme Court. When called for argument, counsel suggested the death of defendant in error, and the case was continued. From which side the suggestion of death came, does not appear from the minutes. No order for proceeding by service or publication, under rule 26 of the Supreme Court, was taken, mor any other order than •that for a continuance of the case. When the case was called at the February term, 1884, no party defendant in error had been made; but counsel for plaintiff in error then moved to take an order to perfect service and to continue the case for that purpose.</p> <p>The court refused the motion and dismissed the writ of error.</p>

<p>Yerdict. Equity. New Trial, Practice in Superior Court. Before Judge Simmons. Bibb Superior Court. April Term, 1883.</p> <p>On September 22,1877, the Central Georgia Bank filed', its bill against B. Y. Iverson, trustee for his wife and children, and against the oestuis que trust, alleging that, on January 23,1871, the trustee, being indebted to Collins & Son, warehousemen, for money and advances made and. expended for the benefit of the trust estate, gave them a warranty deed to certain land, as security for the debt,. and took a bond to reconvey the same upon its payment on or before November 1,1871; that this was done under • authority of an order granted at chambers by the chancellor. upon application by the trustee, and with the consent and approval of the wife and guardian ad litem, of the minor, in which it was recited that the indebtedness was incurred for the benefit of the trust estate; that the time of payment was extended to January 1, 1873; that, in pursuance of this agreement, the trustee drew a draft on Collins & Son for the amount ascertained to be due; that they accepted it in the ordinary course of business, as was ■customary among warehousemen at that time; that they, being indebted to complainant, transferred the draft be.fore due, and made complainant a deed to the land, and it took without notice of usury or any irregularity; that Collins & Son have since become insolvent. The object of the bill was to subject the trust estate.</p> <p>The trustee and eestuis que trust answered the bill, admitting the granting of the petition, but attacking the sale .as illegal, because the guardian ad litem, of the minor was .at the time counsel for Collins & Son; because the judge had no power in chambers to pass the order: because, without an order from a court of chancery, the trustee could .not change the trust; because the facts stated in the petition were not true* because the debt was not Mrs. Iver■son’s debt, but her husband’s; and because it was tainted with usury.</p> <p>The jury found the following verdict on June 28-1878;</p> <p>“We, the jury, find that the trust estate is not iiableforthe debt; we .also find that the debt was made by B. V. Iverson for his own-benefit, and that he is liable for $3,602.37.”</p> <p>No decree was entered.</p> <p>On June 25,1881, complainant filed the present bill, in the nature of a bill for re view of the former decision, and to ■enforce its claim against the trust estate. The pleader styles it, in one of the amendments, as being “ in the nature ■of a bill of review and revivor, and as a supplemental biU.” It alleged that usury could not be pleaded without offering to pay principal and legal interest that defendants were estopped by their solemn admissions injudieio as to the liability of the trust estate, and could not deny it, and that no issue could be made or found to the contrary; and that the verdict did not cover the issues actually made.</p> <p>By amendment, ol lior grounds for review were set out, wnich were substantially as follows: That the debt was for the benefit of the trust estate, and this was not denied in the answer; that the original bill prayed for an accounting, and the answer admitted that some of the money was expended for the trust estate, but the verdict ignored this issue; that the verdict does not show on which plea it was rendered; that the verdict impliedly found the order of the chancellor void, while the answer impliedly admits that it was legally passed, and the deed under it was legally executed; that Mrs. Iverson, being of full age, was bound, irrespective of any order to sell; that the verdict found B. Y. Iverson liable individually, though not a party. Other reasons were also alleged why the cestuis que trust were estopped by their acts and admissions from denying the claim, and why the verdict should be set aside, not necessary to be detailed The prayer was that tüe verdict be set aside, a new hearing be had, and the trust estate be subjected to the debt.</p> <p>Defendant demurred to the bill, on the following grounds: Because there was no equity in it; because the matter was res adjudieata; because there was no error in the verdict, and it covered the issues; because no special leave to file the bill appears; because it was barred by the statute of limitations; and because a motion for new trial was the proper remedy. The amendment was demurred to as making a new bill of review barred by the statute of limitations.</p> <p>The demurrer was sustained, and the bill dismissed, and complainants excepted.</p>

<p>Deeds. Title. Erasures. Verdict. Before Judge Man-sell. Berriea Superior Court. September Term, 1883.</p> <p>Henry Banks brought complaint for land against Moses C. Lee. Plaintiff showed a chain of title from the state down to himself. Defendant introduced no evidence. One link in plaintiff’s chain was a deed from William Bowles, or Boales (the grantee from the state) to Elijah Radford. In this deed, both in the body and signature, the name of Bowles appears to have been written with a middle initial, prohable “ R,” which was afterwards erased. It was dated January 26, 1838, was probated for record by B. J. Parr, a subscribing witness on August 26,1848, and was recorded March 13,1880. Parr testified by interrogatories that the deed was genuine; that he saw it signed; that he knew nothing of any alteration; and that the last time be saw the deed it was just as it is now; that the grantor is dead; and that witness did not know of his having any middle name; that his son, who was a subscribing witness, was named William Rabun Bowles. The affidavit of probate made by Parr contained a like erasure to that in the deed. These erasures are represented by blanks in the record.</p> <p>The jury found for defendant. Plaintiff moved for a new trial, because the verdict was contrary to law aiid evidence. The motion was overruled, and plaintiff excepted.</p>

Tax. Municipal Corporations. Laws. Claim. Before Judge Fort. Sumter County. At Chambers. February 29, 1884. Peggy Harris filed her petition to compel A. P. Lingo, the city marshal of Americus, to accept and return to the superior court a claim which she had tendered to him to a lot levied on as the property of Ben. Harris for a license tax due by Mm.

Criminal Law. Murder. Manslaughter. Homicide. Before Judge Pottle. Hancock Superior Court. October Term, 1883. Wilson Smith was indicted for the murder of Sip. Bennett. On the trial, the evidence was, in brief, as follows: A number of hands, among whom were both defendant and deceased, were engaged in digging a ditch on the plantation of one Dickson. Gilbert Castleberry was “boss” of the squad. He told defendant and others to get into the ditch.

<p>Constitutional Law. Laws. Criminal Law. Before Judge Hutchins. Gwinnett Superior Court. September Adjourned Term, 1883.</p> <p>Reported in the decision.</p>

<p>OTiminal Law. Malicious Mischief. Before Judge Branham. Henry Superior Court. April Term, 1883.</p> <p>Reported in the decision.</p>

<p>United States Courts. Removal of Causes. Criminal Law. Recognizance. Principal and Surety. • Judgments. Before Judge Brown. Milton Superior Court. August Term, 1883.</p> <p>Reported in the decision.</p>

New Trial. Practice in Superior Court. Before Judge Stewart. Henry Superior Court. October Term, 1883. Hightower recovered a judgment against Bosworth at the October term, 1883, of Henry superior court. Defendant moved for a new trial.

<p>1. The judgment which the county court set aside upon an affidavit of illegality in this case was not void, because the judge rendering it was related in equal degree to both the parties litigant, especially when no objection was made at the hearing on this ground, and when the judgment had been acquiesced in for more than five years.</p> <p>(a.) Semble, that if the judgment were void, this did not ipso facto take the case out of court, and that an order sustaining the affidavit of illegality, on the ground that the judgment was void, would have the effect of re-instating the parties to the position they held • before the judgment was rendered, and the order sustaining the illegality should have so directed.</p> <p>(b.) There was no error in re-instating the case.</p> <p>(c.) This ease differs from that in 57 Ga., 60.</p> <p>2. The distinction between a motion for new trial and a motion to reinstate a case is clear and obvious.</p>

<p>1. Deeds which designated no specified interest in lands, and which did not describe them so that they could be located, were void for uncertainty. I:i order to be available as color of title, it was necessary to show that they had some connection with the premises in dispute. None was shown in this case.</p> <p>2. There is nothing in the evidence to found prescription upon, and the verdict could not have been otherwise than it was.</p>

<p>The court of ordinary has original and exclusive jurisdiction over the subject of escheats. The ordinary is not ex-officio the esche&tor; but upon inquisition in that court, the administrator is converted into the escheator, and is accountable in that character to the 'party entitled.</p>

<p>1. Pleadings áre to be taken most strongly against the pleader, and verdicts are to have a reasonable intendment and construction, so as not to be avoided unless from necessity. All of the pleadings not being before this court, it cannot be decided that the verdict is so vague and uncertain that it cannot, by proper intendment and construction, be rendered precise and certain.</p> <p>2. The affidavit of illegality to the levy in this case fails to show that the land thus levied on is included in the two hundred acres exempted as a homestead, and a part of which was found subject to the execution.</p> <p>3. The admission that the judgment was for the purchase money of the land levied on was fatal to this affidavit of illegality; and this admission having been made for the purpose of determining the question on demurrer, thereby became to that extent a part of the record. ij.</p> <p>4. Whether affidavit of illegality is an appropriate remedy to attack and set aside the verdict and judgment of which it complains. Quxre?</p> <p>(a.) It is inequitable for the defendant to keep the land and not pay the purchase money.</p>

<p>Principal and Surety. Bonds. Contracts. Principal and Agent. Before Judge Hutchins. Walton Superior Court. August Term, 1883.</p> <p>Reported in the decision.</p> <p>cited, Code, §§2851, 3831, 3454; 14 Qa., 173; 1 Whart. Ev., §633; 1 Dan. Neg. Inst., 154'; 30 Ga., 278; 55 Id., 45, 47; 23 Grat., 600; 41 Cal., 85; 6 Allen, 305; 10 Am. R., 268; 13 Am. Dec.,'629.</p>

<p>Where a criminal recognizance has been forfeited, and a scire facias has issued, the securities on the bond have until the state case against the principal is called at the next term, to produce his body to answer to the charge against him. To enter the scire facias on another docket, call it and enter a judgment against the sureties before the call of the criminal case, is illegal.</p>

Practice in Superior Court. Parent and Child. Public-Policy. Evidence. Before Judge Fain. Chattooga Superior Court. September Term, 1883. A widow applied for a year’s support on behalf of herself and her minor children. Objections were filed by one of the administrators, who was also a distributee. From the decision of the ordinary an appeal was taken.

<p>1. After the trial of a cause by the jury and the return of a verdict of guilty, and the refusal of a new trial by the circuit court, and the affirmance of that judgment by this court, the grounds of the second motion for a new trial will be scrutinized closely, and must be laid in the very foundations of the purity of jury trial, to authorize the grant of such an application.</p> <p>2. The scrutiny will be closer by this court, and its power exercised with more hesitation when the presiding judge has refused to interfere with the verdict, on the ground of the disqualification of a juror.</p> <p>3. But when the facts show that five respectable and disinterested witnesses of unimpeachable character, resident in a county other than that of the venue of the crime and the trial, swear positively that one of the jury, which tried and convicted the prisoner and sentenced him to be hanged, told each of them beforehand that if he got on the jury, he would hang the accused, and when this statement was made, not to all at one time, which might have been under the influence of horror of the crime, and not made with deliberate ill-will, but to two, on one occasion, and to each of the others separately, at different times andón different occasions, and when the same juror afterwards said, in the hearing of others, that the city of Griffin was prosecuting the case, there was big money in it, and he could make a pile out of it; and when the same juror was induced by threats of one of the counsel for the prosecution to swear to an affidavit exculpating himself from having made the statements so testified to by these several respectable witnesses, being under charges of forgery and subornation of false swearing at Griffin, in Spalding county, and at Jonesboro, in Clayton county, disconnected with this murder case, by which threats he was induced to believe that his trial in Griffin would be prejudiced unless he so swore, and when his denial of the statements of said respectable witnesses was, in one affidavit he made, simply that he could not deny them positively, but had no recollection of them, and that denial, induced by counsel, was positive, and when due diligence was manifested by counsel in moving on these extraordinary grounds, and no time was lost in bringing the facts before the superior court so soon as discovered :</p> <p>Held, that conviction for murder and sentence of death on the verdict of a juror so utterly destitute of truth and uprightness of character, would shock the conscience of civilization, and soil the purity of jury trial; and no matter how heinous the crime committed, the preservation of that purity is of more consequence than the speedy punishment of any one man for any one offense, and ■ public policy, as well as individual right, demand a new trial. Code, §§3718, 3719, 3721, 4997, 5174.</p> <p>(Head-notes hy the court.)</p>

<p>1. In a case of bestiality, penetration may be proved by circumstances, and need not necessarily be shown by an actual eye witness thereof. Circumstantial evidence, if convincing beyond a reasonable doubt, will authorize a jury to convict and the court to uphold the conviction. 1 Russ. Cr , 684, and citations; 23 Oa., 679; 49 Id., 18; 53 Id., 195; 55 Id., 326; 59 Id., 738; 60 Id., 258.</p> <p>2. Where, by consent of counsel, the judge received the verdict, with liberty to poll the jury next morning, when it was to be read, and with instructions to the jury not to make it known until read, the defendant being absent, and one of the jury said to another per? son, in the morning before the verdict was read, that if defendant had been there the night before, ho would have been in jail, and no request was made to poll the jury; the circumstances, while it showed imprudence in the juror and disobedience of instructions, for which he might be punished, show no hurt to defendant which would work a new trial.</p> <p>3. A charge to traverse jurors, when empanelled, sworn and organized to try cases during the term, in regard to the importance of enforcing the criminal laws, is not such matter or ruling of the court on the trial of the case brought up for review here as this court has power to review and reverse and base the grant of a new trial upon, unless some reference be made in such general charge to the particular case on trial.</p> <p>(a.)When allusion was made only to a case formerly tried and the verdict therein, it did not injure the defendant in the present case, the cases being entirely different ;nor does it matter that the same attorney appeared in both cases for the defence; especially where it did not appear that any of the jury knew this fact.</p> <p>4. The verdict was supported by the evidence.</p>

<p>1. The verdict of voluntary manslaughter was supported by the evidence, and the sentence was as mild as the facts would justify.</p> <p>2. "Where one provokes a difficulty, and thereby becomes the assailant, and makes no effort to decline the combat so provoked and commenced, but takes human .life in such contest, the homicide is not justifiable; and a charge to that effect was not error.</p> <p>3. "When one voluntarily shoots at another and the shot kills, the homicide cannot be involuntary; and where, under no rational view of the facts, the killing can be involuntary homicide, the judge should not confuse the jury by a charge on the law concerning that offense.</p> <p>4. Two convictions by juries in different counties on the same case for the same offense ought to have weight with the presiding judge on the motion for new trial, and with this court in reviewing his decision; but where the facts would have authorized a verdict of guilty of murder, and the jury have found the defendant guilty of voluntary manslaughter, the court could not do otherwise than sustain the finding. 57 Ga., 183; 16 Id., 204; 58 Id., 212.</p>

<p>1. In a prosecution for using obscene and vulgar language in the ■ presence of a female, the husband of such female being the prosecutor, it was not admissible to ask the woman, when on the stand. as a witness, if the prosecutor had not offered to stop the prosecution if the accused would pay a sum of money for that purpose. Unless such proposition was connected with her, it did not tend to impeach her; and the person who made it not having been sworn as a witness, it was immaterial. 66 Ga., 310; Contrast 55 Id., 303.</p> <p>2. Nor was there error in refusing to allow the accused to state, in his statement, “ that the prosecutor offered to stop the prosecution, if he would pay a sum of money for that purpose, and that he had a letter in his pocket showing this.” The accused has the right to state any fact going to show his innocence, although it has not been testified to by any witness; but he will not be allowed to ramble from the issues in the case by stating or alluding to immaterial matters. 72 Ga., 261.</p> <p>.3. In deciding upon the credibility of witnesses, the jury may consider their manner of testifying, their interest or bias, their character for veracity, if they know it, and the reasonableness or unreasonableness of the facts they relate. A request to charge to this effect having been made and refused, and the judge having given no charge as to the credibility of the witnesses, a reversal must result.</p>

<p>1. Where one ground of a motion for new trial was that, during the trial of the case, counsel for defendant discovered that one of the' counsel for plaintiff was employed upon a conditional fee, and that his second cousin was on the jury, and immediately called the attention of the court thereto, and the facts being admitted, the court held the relationship not sufficiently clofie to disqualify the juror, and this ground was certified, this court could rule upon the point made without reference to affidavits used at the hearing of the motion.</p> <p>(a.) Were the affidavits necessary, being referred to in the ground of the motion, and being indentified severally by the presiding judge and appearing copied in the record with his imprimatur upon them, this was sufficient, and a motion not to consider this ground will be denied.</p> <p>2. A second cousin of an attorney for the plaintiff, who has a fee conditional on recovery, is not a competent juror. 60 Ga., 193; 63 Id., 682; 65 Id., 304; 71 Id., 81872 Id., 80.</p> <p>3. No binding release by counsel for the plaintiff is shown, and the affidavit of the juror that he did not know of the contingent fee of his cousin, is sufficiently rebutted by the open announcement before the court, and the ruling thereon by the court in the presence of all the jury and directly affecting this juror. He was not purged ' of suspicion. 71 Ga., 818.</p> <p>(a.) It was sufficient to call the attention of the court to the disqualification of the juror; it was unnecessary to make a motion, in order to invoke the ruling of the court.</p>

<p>1. Where a new trial was granted on one ground of a motion, the question before the Supreme Court is, whether the court erred in granting the motion on that ground. 70 Ga., 464.</p> <p>2. While this court is strict in enforcing all agreements of counsel, by which risks are taken, and which, when injury follows, it is sought to repudiate, yet discretion in enforcing agreements made in the presence of the presiding judge, and brought about by his own rulings, is as much within the scope of the exercise of the power conferred by law of granting or refusing a new trial as is discretion in regard to the facts before the jury or other matters of practice before the judge. Where the presiding judge is of opinion that his ruling, which caused an agreement in regard to the amendment of plaintiff's declaration, and his enforcement of that agreement has done injustice, and grants a new trial, his discretion will not be controlled unless abused.</p>

<p>1. A case in a justice’s court, in 1880, needed no pleading except the summons. Where the suit was for damages to personal property, and the verdict on appeal was within the jurisdiction of a justice’s court, the fact that the summons failed to specify the amount of damages claimed will, not require a reversal, no plea to the jurisdiction having heen filed.</p> <p>2. The mule in controversy died, and the question was, whether it died of a disease it had when sold, latent or patent, soundness having been warranted; and such was the charge of the court.</p> <p>3. The allowing of a leading question is largely in the discretion of the presiding judge.</p> <p>4. The case being brought here for delay only, damages arc awarded.</p>

<p>1. Under a general submission, the arbitrators are bound to decide only those matters brought to their consideration by the parties. The presumption is that the matters decided by the arbitrators were so brought to their consideration. Code, §2887.</p> <p>2. An award signed by the umpire alone or by the umpire and one of the arbitrators is good. Code, §2890.</p> <p>3. The award under a common law arbitration is not required to be made the judgment of any'court; it is binding between the parties until set aside.</p> <p>4. That is certain which may be rendered certain.</p>

<p>X. Pleadings are always construed most strictly against the pleader; and especially so as to an affidavit of illegality which arrests the enforcement of a judgment and execution.</p> <p>(a.) Where suit was brought against a corporation, known as the Mount Airy Hotel Company, and the entry of service was “served the defendant with a copy of this original writ by leaving said copy with M. C. Wilcox, at the hotel at Mount Airy, Ga.,” an affidavit of illegality, which did not deny that Wilcox was an officer of the company when served, but stated that service had not been perfected "by serving a copy in person upon the president, or any officer or agent of said company in person as such,” was insufficient, and was properly dismissed.</p> <p>2. Construing the statement in the service that it was made at “the ' hotel,” with the statement of the case in the declaration and process against the Mount Airy Hotel Company, the meaning of the entry was that service was perfected at the hotel of that company, its place of business.</p> <p>3. Especially was the dismissal of the affidavit of illegality proper, where it only stated that the affiant, the president of the company, believed that this service was not sufficient to bind the company, but did not deny full knowledge of the pendency of the suit, or assert that the defendant had any good defense, and where it appeared in connection with the motion that the president of the company dictated the entry of service, or at least, advised the sheriff concerning it.</p> <p>4. Ten per cent damages are awarded for bringing the case to this court for delay.</p>

<p>Under the act of 1874 (pamph. p. 105,107), the comptroller general was only authorized to issue an execution for taxes against unimproved lands. Where land was improved and a tenant was in possession thereof, no authority was given to the comptroller general to issue a tax fi. fa. against it; and a sale under such nfi. fa. was void, and conveyed no title. 65 Qa., 219.</p>

<p>1. In an action against one for the tortious killing of the cow of another, by the son of the defendant, sayings of the son to the plaintiff, made after the res gestx of the transaction were terminated, were not admissible against the father. 57 Ga., 253, 257; 53 Id., 395, 635.</p> <p>2. The object of the act of 1880 (Code, §4139), which required the' summons in justices’ courts to have the cause of action sued on attached thereto, was to give the defendant notice what he was required to meet; and since its passage, such cause cannot be changed to a totally different cause of action.</p> <p>'(a.) Therefore where suit was brought in a justice’s court for triple damages for the killing of a cow in an enclosure where the fence was not lawful, under Code, §1445, it could not, after appeal to a jury, be converted into a mere action for the value of the cow, under Code, §2961; and a recovery under such a change was improper.</p>

<p>1. The test whether a written instrument is a deed or is testamentary in its character is this: If the title vests eo instanti at the execution of the paper, it is a deed; but if The same is not to take effect until the death of the maker it is a testament. 2 Ga., 31; 11 Id., 212; 20 Id., 707; Code, §2305; 70 Ga., 152.</p> <p>(a.) An instrument headed, “ Deed of Gift,” purported to convey in the form of a deed certain realty (describing it); “ also all the livestock, household and kitchen furniture, and all moneys due that I may have at my- death-, after the-payment of my just debts and fune.al expenses. This deed of gift to take effect at my death:”</p> <p>Held, that the instrument was testamentary in its character.</p> <p>2. It was not competent to prove by one of the witnesses to this instrument that the parties intended it as a deed.</p> <p>(ct.) Code, §3804, applies only where a contract is of doubtful meaning ; but a plain and unambiguous contract cannot be contradicted by parol.</p>

<p>1. If a municipal corporation does not use ordinary care and diligence to make or keep a bridge over a ditch in one of its highways, whether constructed by it or not, a safe and convenient crossing for those using it as a passage-way over the ditch, both by day and night, it would be chargeable with negligence, and liable for whatever damages may be sustained in consequence thereof. 58 €fa., 238; 38 Id., 334 ; 39 Id., 725.</p> <p>2. The verdict is supported by the evidence.</p>

<p>1. The defendent was estopped hy his deed from denying title to the mortgaged premises, and neither he nor the court, at his suggestion, could intervene for the protection of the rights of a third person, who would not be bound by a judgment to which he was not, and could not be made, a party. Code, §3965; 36 6a., 499; 46 Id., 133; 58 Id., 178.</p> <p>2. To the foreclosure of a mortgage a defendant may set up any defence which he might set up in an ordinary suit instituted on the debt or demand secured by the mortgage, and which would go to show that the applicant was not entitled to the foreclosure sought, or that the amount claimed was not due. Therefore a plea which denied that the debt was due, and alleged want of consideration and fraud in the procurement of the draft to secure which the mortgage was made, should not have been dismissed on demurrer. Code, §§3964, and citations, 2690, 2739, 2751, 3178, 2785, 3967; 53 6a., 214.</p>

<p>It is a general rule, to -which there is no exception, that he who alleges error must show error, every presumption being in favor of the judgment. Where the record is confused, and fails to show any error of which this court can take cognizance, an affirmance will result.</p>

<p>1. The judges of the superior court, in the exercise of their chancery powers, cannot be too careful in granting injunctions to restrain judgments obtained at law, and should never exercise this power without requiring ample indemnity from the person praying the injunction to the plaintiff in the common law judgment.</p> <p>2. In this case, the proofs submitted to the chancellor at the hearing of the application for injunction were somewhat conflicting, and while probably the injunction should not have been granted, yet this court cannot say that the court below violated that discretion vested in him in the exercise of this power. It would take an extreme case to authorize this court to interfere with the exercise of such power.</p>

<p>1. At common law, if a party died after judgment, but before the issuing of execution, it was necessary to issue a scire facias to make the heir or legal representative of such decedent a party to the judgment; but since the passage of the judiciary act of 1799, which makes the judgment a lien on all the property of the defendant from the time of its rendition, the reason of the rule, and consequently the rule itself, has ceased to exist in this state. 4 How., 58.</p> <p>2. The execution must follow the judgment. Where the judgment ' recited that the plaintiff assumed the costs, and the execution assessed costs against the defendant, in a claim case arising thereunder, the execution should be quashed, and the levy dismissed'on motion. Code, §3636; Tidd’s Pr., 998.</p> <p>(a.) A claimant has the right to show that the execution which is levied on the property claimed by him is void or inoperative as a valid process. Code, §3495; 6 Ga., 586; 12 Id., 212; 51 Id., 421; 52 Id., 586; 44 Id., 26.</p>

<p>1. Where a case was dismissed in this court, the dismissal operated as an affirmance of tbe judgment of the court below, and consequently rendered the plaintiff liable for the costs incurred in bringing the case here, together with the costs incurred in this court, upon the return of the remitter to the court below. The liability of the plaintiff in error was fixed by the judgment entered for these costs. 25 Ga., 604; 32 Id., 499.</p> <p>(a.) Although one ground of dismissal was that the transcript of the record did not reach this court within the time prescribed by law, it will not bo presumed, in the absence of proof and, in spite of the judgment of the court below, that the clerk failed to perform his duty, and thereby forfeited his right to costs. The presumption ia that he did his duty, until the contrary appears. Code, §3695.</p> <p>(6.) The term costs, as applied to proceedings in a court of justice includes all charges fixed by statutes; as compensation for services rendered by officers of the court in the progress of the cause. 33 Ga., 533.</p> <p>(c.) If any items of cost were improper, a motion to retax costs could have been made in the court below, upon the return of the remitter from this court.</p> <p>2. If a plaintiff in error has been injured and suffered damage in con. sequence of the neglect of the clerk of the superior court, he may sue him personally, or upon his official bond, and recover the amount of the damage sustained. 66 Ga., 203.</p>

<p>1. All lands are supposed to be actually surveyed; and the intention of a grant from the state is to convey the land according to that actual survey. 16 Ga., 142, 147.</p> <p>Cot-.) Where the lines and courses of an adjoining tract are called for as a boundary in a deed or grant, the lines of such deed or grant shall be extended to them, -without regard to distances, provided those lines and courses are sufficiently established.</p> <p>2. Actual possession for twenty years, if continuous, adverse, peaceable, and accompanied by claim of right, gives prescriptive title to the land so actually held, but does not extend beyond it. Code, §§2678, 2682.</p> <p>(a.) Trespassing beyond the land so held, by one who is insolvent, will be enjoined.</p> <p>(6.) Directions given to court below to grant an injunction against a trespass by an insolvent defendant beyond the land held under enclosure, unless he gives bond for damages.</p>

<p>1. Where it was shown that the offense of rape had been committed, and the question was as to the identity of the criminal and the defendant on trial, it was incumbent on the state to make out the case beyond a reasonable doubt; but it was not necessary to show that it was impossible for the offense to have been committed by anybody else, or that it might not, by bare possibility, have been done by another. It is sufficient to show to a moral certainty that it was the prisoner. 57 Ga., 102; 58 Id., 79; 6 Id., 285; 17 Id., 130; Code, «3749.</p> <p>2. Where the evidence showed that a rape had been actually committed, and there was nothing to show that the prisoner stopped short of the consummation of the crime, a charge that the jury-might find him guilty of an assault with intent to rape was properly refused. Code, §4674 ; 62 Oa., 558.</p>

<p>An exemption set apart in bankruptcy to one who became a bankrupt in 1873, is not subject to be levied on and sold by virtue of an execution issuing upon a judgment rendered on an action of trespass guare clausum fregit, in 1869, against the bankrupt, who had been Anally discharged from the debt in bankruptcy previóusly to such levy. 71 Ga., 271.</p> <p>(a.) It is immaterial whether the cause of action originated before the passage of the homestead act of 1868, and the bankrupt act, or not. It was not a debt, but a right of action, prior to the judgment. 2B1. Com., 436, 437; 39 Ga., 451.</p>

<p>1. There was no error in striking the defendant’s plea, there being no allegation of the insolvency of the plaintiff and the sureties on his bond.</p> <p>2. This case was between the plaintiff individually and the defendant; the words, “as temporary administrator,” etc., were words of description, and were properly rejected as surplusage.</p> <p>3. Where a temporary administrator obtained the property of a decedent, and was afterwards wrongfully deprived thereof, he had such an interest in tho property as would authorize him to bring trover therefor.</p> <p>4. A motion for new trial, on the ground that tho verdict is strongly and decidedly against the weight of the evidence, though there may he some evidence to support it, is addressed to the sound discretion of the presiding judge, and this court will not control his decision thereon. Code, §3717.</p>

<p>1 Although the bearer of a mortgage, as such, has no right to foreclose it in his own name, yet where it appears that one so proceeding had, in fact, a transfer in writing to him, the verbal inaccuracy in describing his character as plaintiff could have been amended instanter, and furnished ho reason for quashing the proceeding, although set out as a distinct ground in the defendant’s counter-affidavit. Code, §§1992, 1996, 3479.</p> <p>2. Where the sum. claimed in a suit in the county court, either as a debt or as damages, exceeds fifty dollars, the party against whom judgment is rendered has a right to appeal to the superior court. The exercise of the right depends upon the pleadings, and not upon reductions which may be made upon the final hearing, either by the testimony o'f witnesses or by the finding of the jury. Code, §286.</p>

<p>Where salt was consigned for sale during a single season, and it was the evident intention of the parties that it was to be sold and the-proceeds thereof paid to the consignor, and subsequently a payment was made on the account, thereby giving notice that the salt had been disposed of, and no action was brought for eight years thereafter, the claim was barred by the statute of limitations; and where these facts appeared on the face of the declaration, a demurrer thereto was properly sustained. 49 Ga., 354; 71 Id., 89.</p> <p>(a.) An allegation that no demand had been made within four years-implies a demand prior thereto.</p>

<p>'Where the certificate of the presiding judge shows that the bill of exceptions as presented is not true, but he certifies that it is true with certain material qualifications stated in the certificate, the writ of error will be dismissed. 67 Ga., 764; 68 Id., 27; 71 Id., 287.</p> <p>da.) When the error in the bill of exceptions was stated in writing by the judge, and his objections to signing it were thus made known to the party applying therefor, he should have proceeded to remove the same-in the manner prescribed by §4257 of the Code.</p> <p>((6.) This court is less reluctant to dismiss the present case, because upen looking into the record, no error appears.</p>

<p>1. The verdict is supported by the evidence.</p> <p>2. The defendant in fl. fa. is not a party to the issue between the claimant and the plaintiff, and. on the trial of the claim case, his death .does not prevent certain third parties from testifying that they made a trade with him concerning the property in controversy.</p> <p>S. Fraud is subtle, and slight circumstances are sufficient to show it, particularly in family transactions.</p> <p>(a.) Where a horse was levied on as belonging to a son, and was claimed by his mother, who claimed under a gift from his father, it was admissible to show that the father had previously advised the wife of liis- son to put ilia claim to the same horse against the same execution, for the purpose of showing fraud.</p>

<p>The complainant in this case having a complete remedy at law to determine the question of her title, an injunction was unnecessary, and was properly refused.</p>

<p>1. Where a vendee held an ordinary bond for titles, paid one hundred dollars on the purchase price, and failed to pay the balance when duo, and the vendors re-entered upon the land, it being vacant, and re-sold it, the vendee was entitled to recover the amount already- paid, less such an amount as would prevent actual loss to the vendors by reason of his non-performance of the contract. The verdict in this case substantially conformed to this ruling. 69 Ga., 433; Code, §3586.</p> <p>2. Where testimony, offered to show the expenses of a re-sale, did not itemize such expenses, but gave them in a lump, and seemed to be mere matter of opinion, there was no error in rejecting the evidence.</p> <p>(a.) Where questions were asked, but not answered, and it was not stated what answers were expected, and. therefore what could be proved, and the judge certifies that this was done after the case had been ruled, so that no injury appears, a reversal will not be granted on that ground. Code, §2860.</p>

<p>1. It was error to hold that an application for new trial should be dismissed, on the ground that the motion for new trial had not been filed in the clerk’s office, inasmuch as the judge himself handed the papers to the clerk for. filing, and was cognizant that the default was the clerk’s and could not be attributed to the movant or his counsel.</p> <p>2. But when the movant himself called the court’s attention to the failure to file the motion, and virtually declined to go on with the cause at the time set for the hearing, and thus sought to delay action and to take advantage of the default of the clerk in reference to his own motion, a dismissal of the motion was right.</p> <p>(a.) If the dismissal was right, it will be affirmed, though put on a wrong reason.</p>

<p>1 Only an officer authorized by law to levy an attachment can serve a summons of garnishment. Therefore, though a justice of the peace may issue a summons of garnishment, he cannot serve it. Code, §§3539, 3273, 3284.</p> <p>2. A summons of garnishment in a justice’s court must be returned to the next justice’s court, if it sits after ten days’ service; if not, to the next thereafter. Therefore, where summons was served only nine days before tbie justice’s court to which it was returned, the garnishee was not bound to answer. Code, §§3539, 3303.</p> <p>3. There being no evidence at all to show indebtedness by the garnishee to. the defendant, a verdict by the jury in a justice’s court finding against the garnishee was properly set aside on certiorari.</p>

<p>1. Where suit was brought in a justice’s court, on a note by which it was agreed to pay a specified amount as principal, with interest thereon, and expenses incurred in collecting the same, and the amount named as principal, together with the expenses of collection, exceeded one hundred dollars, exclusive of interest, the justice’s court had no jurisdiction, and a judgment for the amount of principal, interest and cost of collection was a nullity. 69 Ga., 587, 756.</p> <p>2. Such a judgment, being void, could not be rendered valid by an amendment striking therefrom the excess over one hundred dollars. Code, §§3594, 3590, 3828.</p> <p>(a.) Whether a justice’s court has power to correct errors in its judgments when the suit is within its jurisdiction, is not decided.</p>

<p>1. There is sufficient evidence to sustain the verdict.</p> <p>2. Where a fi. fa. was proceeding for the benefit of a transferee, there was no error in admitting evidence of the loss of the transfer, the evidence not showing that the separate piece of paper on which the transfer was written was ever out of the transferee’s hands, but showing that, after diligent search, ho was linable to find it.</p> <p>(a.) The fact that the fi. fa. was handed to the sheriff, and that another besides the transferee had an interest in it, would hardly, without more, justify the conclusion that either of these latter parties had possession of the transfer, and that all the sources ot inquiry had not been exhausted to ascertain its existence. 42 Buie Superior Court, Code, p. 1351.</p> <p>(b.) Where a claim was interposed to a levy under such ají. fa., the claimant was not interested in the regularity of its assignment, no connection between him and the plaintiff in.fi. fa., or his heirs or distributees being shown, nor that there was any defence to it, if it had still been the property of the original holder.</p> <p>3. Although in a claim case there may be testimony that a portion of the purchase money of the land in dispute was paid by the claimants, this court cannot pass upon the question whether the verdict should have been so framed as to have protected them to the extent of such payment, it not appearing that such issue was made or decided in the court below.</p> <p>4. Where no process was attached to a declaration, but service was made, and a judgment was confessed by an attorney as representing both of the two defendants, after one of them had acquiesced in such judgment for sixteen or seventeen years, without taking any steps to set it aside, and even failed to swear on the trial of a claim ease arising under such judgment that he was not apprised of i ts existence and did not know of the circumstances under which it was confessed, or of the person by whom this was done, such negligence would estop him from setting aside the judgment, even upon a direct proceeding for that purpose, on the ground of want of authority in the person making the confession. Code, §§408, 411; 36 Ga., 108; 39 Id., 394; 53 Id., 491, 493.</p> <p>5. The claimants were not creditors of the defendant, and the bona fides of their alleged purchase was fairly submitted to the j ury and found against them. Code, §3596.</p>

<p>1. Where the record shows that a motion for new trial was heard and granted, and the hill of exceptions shows the grounds of objection urged by the plaintiff in error to the hearing of the motion and the ruling of the court thereon, and the exception of the plaintiff thereto, this was a sufficient assignment of error.</p> <p>2. If a motion for new trial is made during the term when the trial is had, the court may grant an order setting the hearing for a time in vacation, and allowing until such time to perfect the motion and brief of evidence. The hearing and determination of the motion in vacation does not depend on the consent of the respondent, but upon the discretion of the court ordering it. Code, §3719.</p>

<p>In a criminal trial, the state must show the county in which the crime was committed, and that it is the same county in which the indictment was found and the trial had, unless a change of venue is had according to law. If the venue of the crime is not shown, a new trial will be granted, on the ground that the verdict is contrary to law and evidence.</p>

<p>A husband against whom a proceeding has been instituted as an intruder, under §4072 of the Code, may make and tender to the sheriff a counter-affidavit that he is in possession in right of his wife, and as her agent, so as to make an issue for trial of that right of possession.</p>

<p>1. It is doubtful, if a sheriff fails to levy on property pointed out by a defendant in fi. fa., and levies on other property, whether it would furnish a ground for stopping the collection of the fi. fa.; but if the sheriff oppresses him, he may sue that officer.</p> <p>2 It is the property of the defendant in fi. fa. in his possession which he may point out for levy, under certain circumstances. That the sheriff failed to levy on land pointed out by the defendant, which he held under bond for titles, but to which he did not have title, fur» nished no ground for an affidavit of illegality. Cobb’s Dig., 510; Code, §3641.</p> <p>3. The sufficiency of property pointed out to pay the debt is left to the discretion of the levying officer.</p>

<p>Where a person.was appointed guardian for a minor prior to the adoption of the constitution of 1808, and after that time received property of tho ward, and was then guilty of a breach of liis bond given as guardian, a homestead set apart to his wife from his property was subject to a judgment against him for such breach. 61' Ga., 551; 61 Jd.,395.</p> <p>(Head-note by the court.)</p>

<p>If an indictment describes property stolen in a particular way, it is incumbent on the state to prove the description given, but where the indictment described the property stolen as “ a certain red heifer,” it was proper to allow proofs of other marks of identification than those set forth in the indictment. 57 Ga., 367; 64 ■Id., 443, 449.</p>

<p>1. The following instrument created a partnership:</p> <p>“This writing is to show that G. M. Byne buys half interest in T. K. Mishow’s turpentine interest in Worth county, and to become a partner in the business for the term of five years, or longer, if congenial, and the above mentioned parties agree to make the firm responsible for the debts of the same.</p> <p>(Signed) T. K. Mishow; G. M. Byne.” ,</p> <p>2. This case having been brought here for delay only, ten per cent on the principal is awarded as damages.</p>

<p>1. The verdict is clear, precise and definite as to the only issue tha^was or could be presented.under the pleadings.</p> <p>2. Where the only issue was,.whether a paper offered was a copy of. an alleged lost will, a finding that there was not sufficient evidence, to establish the' copy -was” necessarily a 'finding that the paper propounded was not, in substance, the last will and testament of the party.</p> <p>(a.) A verdict is to receive a reasonable construction and a like intendment, and will not be avoided, unless from necessity. Code, §3501.</p>

<p>Homestead and exemptions are for the benefit of the family of the applicant, and not for preference among creditors, or classes of creditors; therefore equity, which follows law, will not enjoin judgment creditors from pressing their executions until the applicant for exemption can have the property set apart for the benefit of ■another creditor, no matter how just the claim of such creditor may he. The right of a debtor to prefer one creditor to others •does not extend to the perversion of a constitutional remedy, provided for a needy family, to a remedy for a contesting creditor to ■secure a debt.</p> <p>(Head-note by the court.</p>

<p>1. On an issue between the plaintiff in judgment and the garnishee, served pending the suit and resident in another county than the venue of the suit, the proceeding will not be dismissed, on account of the fact that the bond made by plaintiff to defendant in that suit was attested and approved in Bibb county, the venue of the suit, by the justice of the peace of Houston county, the residence of the garnishee, who issued the summons of garnishment.</p> <p>2. Where the answer of the garnishee is that defendant had a noto against him, but he does nofknow in whoso-hands it is, he is not discharged by such answer, so as afterwards to settle directly or indirectly with the defendant, and thus bar the garnishment proceeding.</p> <p>3. The issue presented by such an answer is the question, whether the defendant held the note at the date of the service of the summons, and the proper traverse thereof is the allegation by plaintiff that he did so hold it. The garnishee’s legal protection was to pay the money into court; certainly not to settle with the defendant.</p> <p>4. The traverse may be, but need not be, made at the term to which .the answer is made. It may be made at any time before the garnishee is legally discharged. Banks vs. Hunt, last term.</p> <p>5. The issue to be tried by the jury was that made by the answer and traverse: did defendant have the note at the date of the summons, and was the gárnisheé then indébtedto defendant? The verdict covers that issue. '</p> <p>(Head-noteB by the court.)</p>

<p>A homestead is not subject to the payment of a physician’s bill for services to one of the minor beneficiaries. Cons., art. 9, sec. 2.</p>

<p>ease was argued at the last term, and the decision i eserved. Blanford, Justice, did not preside.]</p> <p>A bill was filed for the construction of a will and to obtain an accounting thereunder from the executor. Tho defendant filed a demurrer and a plea of settlement. The bill was amended, alleging that the settlement was procured by fraud, duress and surprise, and that advantage was taken of the situation of complainant and the confidence she had in the executor, growing out of their relations to each other, to obtain the probate of the will in solemn form; that the testator considered the will inoperative; and praying an accounting against the executor as such, individually and as trustee. The defendant insisted on the plea and demurrer previously filed, and also demurred to other matters contained in the amendment, and filed an answer denying all charges of fraud, undue influence, etc. At the hearing, the chancellor rendered the following judgment:</p> <p>“Defendant having withdrawn his plea and demurrers, except the demurrer to the original and amended bill, which is amended to read as follows: ‘Defendant demurs to so much of the said original bill as claims that, by reason of the failure of Robert L. Bass to leave any child, or children, living at his death, or having any issue born of their said marriage, that the entire estate of said testator, real and personal, became the property of complainant, Margaret A. Bass, under a proper legal construction of said will, and defendant prays the judgment of the court, etc.;’ and it being agreed by counsel for complainant, that if the court sustained said demurrer, the bill should be dismissed, complainant reserving the right to file a bill of exceptions upon the ruling of the court in sustaining the demurrer, but not as to the dismissal of the bill, if the judgment sustaining the demurrer should be affirmed by tho Supreme Court, and the defendant consented to the same; — argument was heard; whereupon, after considering the same, it is ordered and adjudged that said demurrer be, and the same is hereby, sustained; and it is further ordered that said bill be dismissed:”</p> <p>Held, that the case is prematurely before this court. The parties cannot confer jurisdiction upon the Supremo Court by agreement, for the purpose of testing certain questions involved in their case, and the writ of error must be dismissed. Code, §4250; Zorn, Jr., trustee', vs. Lamar et al. (last term).</p> <p>(a.) This case differs from that in 08 Ga., 182, 184.</p> <p>(6.) On account of the uncertainty and conditional character of the agreement in this .caso, the writ of error is dismissed, with directions that so much of the decree as dismisses the bill bo set aside, and that complainant, as she shall be advised, have liberty either to file a bill of exceptions pendente lite to so much of the decree as sustains the demurrer, or to have the questions raised thereby considered on the trial of the other issues in the case; and in the event that the issue formed upon the validity of the settlement of her interest in the estate be found in her favor, that she then be at liberty to take such steps and institute such proceedings as she may be advised are proper and legal to set aside the probate of the will in solemn form and caveat the will itself.</p> <p>(c.) When fairly made, courts always favor the compromise of doubtful rights, especially when they settle family disputes, and they are binding, notwithstanding it may eventually turn out that the point of law was in favor of the party complaining, and that, had he not entered into the same, he would have been more largely benefited. Even a fraud may be compromised, provided the party had knowledge of its existence, and entered into the arrangement to have his rights springing from or growing out of it settled. But a compromise effected by fraud, imposition, breach of confidence, duress, surprise or mistake is invalid, and will be Bet aside. 12 Ga., 121, 124; 36 Id., 630. 631; 54 Id., 334, 350; 32 Id., 181,189; 29 Id., 40; 32 Id., 173; 41 Id., 273</p> <p>Haul, Justice.</p>

<p>Practice in Supreme Court. Railroads. Damages. Negligence. Practice in Superior Court. Attorney and Client. Jury and Jurors. Non-suit. Common Carriers. Before Judge Branham. Polk Superior Court. February Term, 1884.</p> <p>Thomas Y. Higgins brought his action against the Cherokee Railroad Company to recover $10,000.00, as damages for a personal injury, alleged to have resulted to him from the negligence of the defendant.</p> <p>On the trial, plaintiff testified, in brief, as follows: On Sunday, May 2,1880, plaintiff was at Rockmart on a visit. Defendant’s-train came up. A Mr. Bullock, who was on board, and whom plaintiff had not seen for some time, hallooed to him to get on and go to Cedartown with them. Plaintiff boarded the train, and the car which he was on being crowded, he and others went forward to the nest car. This was immediately in the rear of the tender of the engine. It was a flat car, without sides or covering, and with benches across it. Plaintiff was near the rear of this car. A thin spark or scale of iron from the engine stuck in his right eye. At the time, it did not hurt him very much, but when he arrived at Cedartown, it was paining him considerably. The pain became very severe, so that plaintiff was in bed for three or four months; he suffered great pain, and ultimately lost the sight of that eye entirely, and the sight of the other eye was also much impaired. He called in a physician that night or the next day, and subsequently went to Atlanta, where he was treated by other doctors. He paid $25.00 to one physician, and owed $50.00 to another for a single operation, besides other bills. His expenses and loss of time while sick would amount to $400.00 or $500.00. Prior to the injury, he had been engaged in different occupations, as carpenter, whiskey-seller, seller of beef and buyer of cotton. When he worked out, he never did so for less than $50.00 per month. He had a family, consisting of himself, his wife and two children. Since the injury, he cannot work after night, and is unfitted by his defective vision for the pursuits which he formerly followed. Several years prior to the injury, plaintiff had worked as a train-hand on the road. The cars then ran from Cartersville to Rockmart, and the train then ran on Sundays. On the day of the injury, there were four or five fiat cars composing the train, but no passenger car; all appeared to be full. He did not see any convicts on the train, nor did he see any ladies. He did not pay any fare, because none was asked of him; would have paid it if asked. He denied having any conversation with one Vandiver about riding on the train. Had heard of persons having their eyes hurt by riding on trains, but not from riding near the engine. The engine had no sparkarrester; it may have had one on that day, but not since; he has examined it since, and it has none. He saw nothing unusual about the running of the train that day. The engine was the newest one they had on the road. In February, 1880, plaintiff had ridden on the same train, but then rode in the cab; thought it was the same engine. He denied intemperate habits, but said he took a dram.’’ At the time of the injury, plaintiff was thirty-four years of age.</p> <p>Plaintiff closed. Defendant moved for a non-suit, on the ground that the injury was not attributable to any negligence on the part of the defendant; that it was not such an accident as the company could foresee and provide against; and that the damage was too remote. The motion was overruled.</p> <p>Later in the trial, plaintiff introduced other evidence, to the effect that his expectation of life was about thirty one years; that from childhood he had had some inflammation in the lids of his eyes, but his sight was good; that he complained and seemed to be in considerable pain. One witness testified that he extracted a cinder from plaintiff’s eye which was stuck in the back, and that the cars were full of persons when the accident occurred. A witness for the plaintiff testified that there was an excursion on the day of the accident. There was also other evidence confirmatory of-that already detailed.</p> <p>The evidence for the defendant was, in brief, as follows: It was not usual to run trains on Sunday on defendant’s road. On this occasion, certain convicts, under the control of Ool. O. B. Howard, were to be carried to work on a cut or grade on the road. They were expected in Oartersville on Saturday, but failed to arrive, and were carried over defendant’s road on Sunday. There was no excursion. There was a passenger coach attached, and about twenty paying passengers, besides four non-paying ones, including the plaintiff, were on board. The convicts were not allowed to ride in this coach, but were carried on the flat cars. The conductor testified that he usually carried about twenty along the line, and that he had carried eighty passengers at one time, but that that was a full double load, every seat and the aisles being full. The engine used at the time of the accident to plaintiff was a new one, having been in use only a few months. It was a wood-burner of good make, and had a spark-arrester, such as is usual. Near the mouth of the smoke-stack there was a hood or iron piece shaped somewhat like an umbrella, against which the steam from the exhaust pipes, carrying with it the smoke and cinders, struck. This had a tendency to throw to the bottom all heavy particles, and subsequently they would be cleaned out of the smoke-stack. Above this was a wire net, having apertures one-eighth of an inch in size, so that nothing larger than this could escape. Some sparks and cinders escape from all engines; this cannot be helped. Cotton had frequently been hauled directly behind the engine without accident from sparks. The president and conductor of the defendant testified that they never heard of any serious personal injury from engine sparks before. Plaintiff and Yandiver, the conductor of defendant, had worked together on the road. On the evening before the accident, plaintiff told Yandiver that he would like for the latter to get him a job, and Yandiver said he would do anything he could. On the evening of the accident, plaintiff asked Yandiver to let him go up to Cedartown, that" he - might see Mr. West, the president of the road. Yandiver assented, and carried plaintiff free of charge, as is generally done among railroad men. He invited plaintiff into the passenger car at the rear of the train where there was room, but plaintiff said he had not been over the road since it was built, and wanted to see the country; that he would go out on the flat car and ride there. Yandiver told him, all right;” that he would go back in the passenger car, and would join him as soon as he had finished. About two and a half miles from Wimberley’s hill, the conductor noticed plaintiff wiping his eye, and the latter said that he had a cinder in it. On the day previous, however, the conductor had noticed plaintiff wiping his eyes with a silk handkerchief, and that they were very red and running; plaintiff said they were sore. On arriving at Oedartown, Yandiver introduced the plaintiff to West, but the latter said he did not have time to talk to him, and plaintiff returned to Rockmart that evening. The train was run in the usual manner on that day. After the accident, plaintiff remained about Rockmart for some days, and was drinking whiskey; it was his habit to drink some. There is more likelihood of getting cinders in one’s eyes and getting one’s clothing burned on a flat car than in a coach. It is not customary to haul passengers on flat cars, but in coaches.</p> <p>The jury found for the defendant. Plaintiff moved for. a new trial, on the following grounds :</p> <p>(1.) Because the verdict is contrary to the evidence, against the weight of the evidence, and is without evidence to support it.</p> <p>(2.) Because said verdict is contrary to law, and to the principles of practice and equity.</p> <p>(3.) Because counsel for the defendant, in the argument of the case before the jury, were allowed to discuss the importance and beneficial effects of railroads upon the country; and when counsel for the plaintiff, in the commencement of his argument, began to allude to the great power and influence of railroad corporations, and stated that the contest between the plaintiff and the defendant was an unequal one,” the court said, “ Confine yourself to the case; I cannot permit you to discuss the parties.”</p> <p>(4.) Because the court refused to allow the plaintiff to prove by the witness, Charles West, that the defendant was worth the sum of two to three hundred thousand dollars. Tire witness so stated in answer to plaintiff’s question, and, on motion of defendant’s counsel, the court ruled out the testimony as irrelevant.</p> <p>(5.) Because the counsel for defendant, after the plaintiff had closed his case, made a motion for a non-suit, and the court permitted the argument on said motion for a non-suit to be had in the presence and hearing of the jury. [Note by the court: “ There was no request or suggestion by any one that the jury should be sent from the courtroom. The motion, of course, was refused.”]</p> <p>(6.) Because the court did not state to the jury the issues and charges, as contained in the declaration, and; though requested to do so by plaintiff’s counsel, failed to do so. [Note by the court; “Reference is made to the charge hereto attached, as to what was said and done in reference to this ground; nothing, except what is stated in the charge on this subject, was said or done, and there was no suggestion that the direction to the jury to look to the declaration for this purpose was insufficient.]</p> <p>(7.) Because the court stated to the jury that “ the defendant pleads the general issue, which is a denial of the plaintiff’s cause of action, and says that there was a passenger" coach on the train into which the plaintiff might have gone ; that he rode on the open car, on his own voluntary motion, to see the country; that the smoke-stack was provided with the most approved and best spark-arrester; that the engine was a new one, and of the best manufacture, not worn and rusted; and that the injury was occasioned by the plaintiff’s own want of ordinary care or the resultof pure accident,” — when, in fact, the only pleas were the general issue, and a second plea, stating generally that the injury was caused by plaintiff’s own fault or negligence.</p> <p>(8.) Because the court stated to the jury, “ the plaintiff alleges that the defendant was negligent in providing an open platform car, upon which he was riding, so near the engine; and that the smoke-stack of the engine had no spark-catcher or screen over the top of it, in consequence of all of which a large cinder or fire-brand, some three-eighths of an inch in length, escaped out of the top of the smoke-stack, and injured and destroyed his right eye,' and that he is in danger of losing the use of his other eye by reason of its sympathy with the injured eye. By amendment to the declaration, the plaintiff says that the smoke stack had become so worn and rusted by use and exposure that the exhausting and escaping of the steam through it separated from it a particle oí rusted iron and threw it into his right eye- with great force, and that this was the cause of the injury.” — Plaintiff’s counsel stated to the court that the declaration was broader and contained other allegations; whereupon, the court said to the jury, “ You will look to the declaration, and see whether I have stated it or not. I think I have stated the issue substantially.”</p> <p>(9.) Because the court did not charge the jury that the defendant was responsible to the plaintiff as a passenger, the defendant’s counsel having, in their* arguments to the jury, insisted, that he was riding free, and as the invited guest of the conductor, that he was, therefore, a trespasser, and that the relation of carrier and passenger did not exist. .</p> <p>(10.) Because the court charged the jury, “ If a number of colored persons were occupying and riding on open flat cars, and the defendant had provided a suitable and safe passenger car for other passengers, and had it attached to the train at the time, and it was sufficient for the accom* modation of such other passengers, then if the plaintiff obtained the consent of the conductor of the train to ride on an open flat car, for his own special accommodation, then he is only entitled to expect such security as the mode of conveyance, so far as the open flat car was concerned, might reasonably be expected to afford, and if he did so obtain such consent and did, under such circumstances, ride on a flat car, and was only exposed to such risk as resulted alone from riding on such flat car, and if the smokestack was not defective, and if it was provided with the best known spark-arrester in actual use, and the plaintiff’s eye was, under such circumstances, injured or destroyed by a spark, cinder or scale from the smoke-stack, he would not be entitled to recover.”</p> <p>(11.) Because the court charged the jury, “ If the plaintiff’s eye was injured or destroyed from some cause other than a spark or cinder or scale from the smoke-stack, then he cannot recover.”</p> <p>(12.) Because the court charged the jury, “If the injury was the result of the plaintiff’s own negligence, he cannot recover; or if it was a pure accident, he cannot recover.”</p> <p>(13.) Because the court charged the jury, “ If the injury be small or the mitigating circumstances be strong, nominal damages only are given.”</p> <p>’ (14.) Because the court refused to allow the plaintiff to prove by the witness, Charles West, that the defendant’s railroad had, at a place on its line between Rockmart and Cedartown, to-wit: at Wimberley’s hill, a grade of .two hundred and ninety feet to the mile, and that in ascending such a grade the engine emitted steam and cinders in greater quantity,and with unusual force. — The witness had so testified in answer to plaintiff’s cross-examination, and the court, on motion of. defendant’s counsel, ruled out the evidence, on the ground that there was no allegation in. the declaration to authorize such proof. [By the court; “ When counsel for plaintiff proposed to introduce this evidence, counsel for defendant objected, upon the grounds that there was no corresponding allegation in the declaration, and no claim that sparks were emitted from the smoke-stack on account of any defect in the construction of the road, or because of an extraordinarily steep grade. The court then said there should be such an allegation in the declaration; the plaintiff’s counsel then amended the writ by inserting such an allegation; the defendant’s counsel having moved for a continuance on account of the amendment, the plaintiff’s counsel withdrew the amendment, and the trial proceeded without further reference to this question.”]</p> <p>(15.) Because the court did not charge the jury that the plaintiff would have the right to be compensated in damages for his physical and mental pain and sufferings, but in the charge stated, as some of the elements of damages, “ the actual value of lost time, medical bills paid and actually owing the physician, the actual loss on account of diminished capacity to labor.”</p> <p>[The court added the following note : “I will state that the failure of the court to charge specially on the subject of mental and physical pain, as one of the elements of damage referred to in the 15th ground of this motion, was an accidental, and not an intentional omission.”]</p> <p>(16.) Because the court did not give the jury any rule for determining the weight of evidence, or the preponderance of evidence.</p> <p>(17.) Because the court did not give the jury any rule for reconciling the testimony of witnesses, nor for determining the credibility of witnesses in cases of conflict in their statements, although the testimony in the case was painfully conflicting.</p> <p>(18.) Because the whole charge of the court did not fully and fairly present to the jury the case made by the pleadings and evidence presented by the plaintiff.</p> <p>(19.) Because the court allowed the witness, A. G. West to testify as follows: “ I never heard of any accident to persons from sparks from the smoke-stack of this engine before nor since.” — The plaintiff objected to the introduction of the evidence, on the ground that it was not relevant to the issue, which objection the court overruled and admitted the evidence.</p> <p>The motion was overruled, and plaintiff excepted.</p>

<p>Practice in Supreme Court. Title. Ejectment. Equity. Estates. Remainder. Trusts and Trustees. Yendor and Purchaser. Deeds. Yerdi’ct. Evidence. Witness. Before Judge Harris. Butts Superior Court. September Term, 1883.</p> <p>Ola Cook, formerly Ola Pittman, brought complaint for land against Willis and White on December 29, 1869. Plaintiff claimed as heir at law of her father and mother, deceased, and as remainderman under a deed from her father, C. C. Pittman, to Joseph Pittman, which contained the following clause:</p> <p>“To have and to hold, to use, control, hire, sell, make title to said property, as my agent, trustee, attorney in fact, and otherwise dispose of said property as in his judgment may best promote and secure the purposes and objects of this conveyance, to-wit: the payment of all my just debts in existence at this date, and then to have and to hold in trust, as aforesaid, the remainder of said property and its proceeds for the sole and separate use, benefit, support, maintenance and behoof of my aforesaid wife, Margaret M. Pittman, for and duringher natural life; at her death to be conveyed forever in fee simple to such child or children of mino and my aforesaid wife, Margaret, as may be then in life; and in the event of the death of my said wife, leaving no child or children by me in life, then to revert fo myself, if in life; otherwise to my legal representatives.”</p> <p>White pleaded the general issue and equitable pleas, to the effect that the remainder interest of plaintiff was conditional, and did not vest until the payment of all debts of her father; that this defendant had been compelled to take up certain of these debts to protect his title, and held them as transferee; that they are now barred, unless relief be had in equity; that Joseph Pittman had sold the land in 1863 to one Edge, under power conferred in the deed from C. O. Pittman ; that Edge paid $4,000.00, which was applied to the payment of the debts of the grantor; that subsequently this defendant, bought the land from Edge for $5,500.00 in good faith; that Edge is insolvent and plaintiff has no visible properly to answer a decree. He prayed that, if the title in him was not good, for any technical reason, he have an accounting for the $4,000.00 paid by Edge, with interest thereon, and for the amount of the claims held by him, and that the land be sold, and the proceeds applied for that purpose.</p> <p>It is .unnecessary to detail the evidence further than to state that the following appeared from it: The deed from O. O. Pittman to Joseph Pittman, trustee, was shown; also the sale by Joseph Pittman to Edge; and certain witnesses testified that Joseph Pittman made this sale as trustee under the deed. Both the deed from him to Edge and that from Edge to White were lost. In lieu of the latter, Edge had made to White another deed, which contained, at the close of-the description, this clause:</p> <p>“Heretofore conveyed by him to C. C. Pittman and by Joseph Pittman, administrator of the estate of the said C. C. Pittman, deceased, conveyed to him, the said N. N. Edge, which said last named deed is also lost or destroyed, and this conveyance made in lieu of said deed of said Edge lost as aforesaid.”</p> <p>The entire receipts by Pittman, trustee, from all sources were $10,417.00. The payment of certain debts of the grantor was shown, and defendants proposed to show from the trustee’s accounts that he paid debts to the amount of $9,798.17, but this was ruled out. Both the Pittmans were dead at the time of the trial.</p> <p>Plaintiff showed that Joseph Pittman was the administrator of 0.0. Pittman; the appraisement of the property was $237.00 in 1861; the bond given was $1,200.00, and-there was a bill of sale to the personalty for $216.S0.</p> <p>Plaintiff showed that in another case Thompson, who negotiated the purchase for Edge, swore that Joseph Pittman stated that he was the agent of his brother, 0.0. Pittman. Edge testified that, if he so swore, it was a mistake. Defendant also showed that Edge swore, in another case, that the second deed made by him was made from statements by him to the scrivener. There was testimony on. behalf of defendants, that Edge, after his purchase in the spring of 1863, had dominion and control over the land until the sale to White in the summer of the same year.</p> <p>The jury found for the plaintiff the premises, with $451.02 for rent. Defendant, White, moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the verdict was contrary to law, evidence and the charge of the court.</p> <p>(2.) Because the court erred in rejecting so much of the evidence of N N. Edge by interrogatories as was introduced to prove that Edge bought the land in controversy of Joseph Pittman, as trustee for O. O. Pittman.</p> <p>(3.) Because the court erred in excluding from the jury, as evidence offered by defendant, a book of accounts kept by Joseph Pittman as trustee, and so proved by his widow, in which book the said Joseph charged himself, as trustee; with certain moneys arising from the sale of certain property of C. O. Pittman, and on which account there is an entry, “ Received for sale of land, $4,000.” The court allowed said account, so charging himself as trustee, as evidence, but excluded as evidence, in the same book and on the adjoining pages, in the hand-writing of Joseph Pittman, the account of disbursements of said money so received by said trustee — the aggregate of money so received being $10,417, and the aggregate of disbursements $11,183.17, as appears from said book in the hand- writing of said trustee.</p> <p>(4.) Because the court erred in. not excluding as evh dence, on the motion of counsel for defendant, the deed executed hy N. N. Edge to Thomas M. White, dated 19th May, 1866, to the premises in dispute. — This deed was produced in court by defendant, under a notice from plaintiff, and defendant’s counsel objected to its introduction, upon the ground that defendant did not claim the premises under it, but relied upon a prior deed which had been executed by Edge to defendant, White, and which had been lost or destroyed, the contents of which deed is a part of the evidence in such case.</p> <p>(5) Because the court excluded from the jury, answers and parts of answers in which Edge testified as to his purchasing the land and receiving a deed therefor from Joseph Pittman, trustee; — the court holding that any evidence as to what transpired between Edge and Pittman was inadmissible from Edge, because Pittman was dead.</p> <p>(6.) Because the court charged as follows: “Witnesses may be impeached by the proof of contradictory statements. Witnesses, when impeached, should not be be^ lieved unless corroborated. It is for you to say whether any attempt at impeachment has been successful or not,” —said charge being inapplicable to the evidence in the case.</p> <p>(7.) Because the court .erred in charging the jury that “ a deed which recites a former deed and its loss is evidence of the first deed, and that the grantee and his privies are bound by the recitals. If a mistake is claimed to have been made in the recital, the evidence of such mistake must be clear and satisfactory.”</p> <p>(8.) Because the court charged as follows: “ If you believe from the evidence that Joseph Pittman, to carry out this purpose, in fact sold the land for the purpose of paying the debts, and Edge paid him for it in good faith, and no deed was taken, and no possession went to Edge, and if White bought it from Edge and paid him for it, and Edge made White a deed to it, then, though no legal title passed, and the plaintiff would be entitled to recover the possession of the premises, or if he sold as administrator,. not according to law, yet if these facts are true, before the plaintiff could recover, it is conceded she should pay defendant whatever the proof shows had been paid by Edge and White towards the payment of O. O. Pittman’s debts.” —The objection was that the charge was contrary to law and without evidence to sustain it.</p> <p>(9.) Because the court charged as follows: “ If you believe from the evidence the plaintiff is entitled to recover, but there is a claim made out and sustained by the defendant against the land, then you should find what mesne profits are due plaintiff, and what amount of debts defendant and Edge, with interest thereon, have-paid of C. O. Pittman, and find the balance as between the mesne profits and debts.” — The objection was that this charge excluded from the jury all consideration of the purchase price paid to Pittman by Edge and White, and that it held “that Edge and White were bound to see to the appropriation of the purchase money to the debts of O. O. Pittman, j)aid by them to the trustee, before they could get credit for the same at the hands of the jury, and thus excluded the evidence as to said purchase money sought to be recovered under their equitable pleas.”</p> <p>The motion was overruled, and.defendants excepted.</p> <p>The motion to dismiss the writ of error is reported in the decision.</p>

Equity. Practice in Superior Court. Debtor and Creditor. Corporations. Stockholders. Injunction. Contracts. Before Judge Hammond. Held: and the following communication was presented: ..... “To the Board of Directors of the Globe Planter Manufacturing Co.: Gentlemen: — It seems to be impossible to make any arrangement by which the indebtedness of the company will be met on the 15th inst., when it falls clue; and inasmuch as I am the endorser for the company to the…

<p>1. Ordinances authorized by the legislature to be passed by a municipal corporation have the force of laws, where they are not violative of the constitution of the state or the United States or the laws of the land. Such ordinances are mere police regulations of the municipal government.</p> <p>2. A municipal ordinance providing that “boys and other persons unconnected with railroad trains, except passengers and other persons in the act of taking passage, are prohibited from getting off or on engines or cars at the depot or elsewhere in the city limits,” was not void for want of uniformity or as being unreasonable.</p> <p>(a.) This court will not presume that the municipal authorities will give this ordinance an unreasonable construction, so as to prevent those having relatives or friends arriving or departing on trains from entering thereon to see after their safety or comfort.</p> <p>3. A general charter power to pass all laws and ordinances that the municipal authorities may consider necessary for the preservation of the health, peace, prosperity and security of the citizens of said city, not inconsistent with the constitution and laws of this state, would authorize the passage of .such an ordinance as that stated above.</p>

<p>1. A deed, made in 1854, conveying a lot in the city of Augusta to a white person for the use of certain free persons of color, was void.</p> <p>2. Where a free person of color, in possession of such a lot in 1854,. having erected two houses upon it, left one moiety in possession of his wife and one in possession of his daughter, and the state never escheated the property until after the emancipation of slaves and the placing of free persons of color upon the same looting as white people, in regard to real property, this possession is good against the claim of all others; and a verdict and decree giving to ' each one her share was right.</p> <p>3. The decree is the more equitable because the complainant paid one-half of the purchase money. Cases of this sort, under the anomalous condition of such property remaining in the possession of persons who could not formerly hold title thereto, should be adjudicated under broad views of natural equity.</p> <p>(a.) There is nothing in the min'or points made to change the result.</p>

Homestead. Exemption. Husband and Wife. Evidence. Before Judge Lawson. Greene Superior Court. March Term, 1884. A county court fi.fa. in favor of Bessman, agent, against W. O. Cartwright was levied on an iron safe, and the wife of the latter, Mrs. Martha T. Cartwright, claimed it as having been set apart as an exemption. The case was carried to the superior court by appeal, and submitted to the presiding judge without a jury.

Mamie L. Gaulden, a minor, by her next friend, D, L Gaulden, filed her bill against R. Jordan and J. W. Holliday, composing the firm of Jordan & Company, her mother, Mrs. Laura G. G. Winn, and the sheriff of Liberty county, alleging, in brief, as follows: Complainant is a minor, aged 14, a daughter of Wm. B. Gaulden, who died in Liberty .county in the year 1873 leaving, as his only heirs, his widow (who afterwards mar lied Theo.

Criminal Law. Malpractice. Indictment. Presentment. Jury and Jurors. Before Judge Estes. Haber-sham Superior Court. March Term, 1884. To the report contained in the decision it is only necessary to add that the grand jury presented Groves, the ordinary, for malpractice in office.

<p>Trusts and Trustees. Ejectment. Title. Judgments. 'Courts. Equitable Pleadings. Before Judge Harris. .Douglas Superior Court. January Term, 1885.</p> <p>Reported in the decision.</p>

<p>Wills. Estates. Remainders. Trusts. Title. Pre scription. Before Judge Hammond. Henry Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

Principal and Agent. Banks. Contracts. Charge of Court. Verdict. Recoupment. Set-off. Pawns. Before Judge Harden. City Court of Savannah. July Term, 1884. To the report contained in the decision, it is only necessary to add that the following were among the grounds of the motion for new trial: (24.) Because the court charged the jury as follows: “ Now as to the question of the difference in price, the third plea.

<p>Master and Servant. Homicide. Damages. Actions. Stevedores. Principal and Agents. Pleadings. Before Judge Harden. City Court of Savannah. February Term, 1884.</p> <p>Reported in the decision.</p>

<p>1 An affidavit to foreclose a laborer’s lien, which alleged merely that the deponent was employed “ to labor as a clerk in defendant’s store,” etc., was insufficient, and was properly dismissed on demurrer. One who is employed merely to labor as clerk in a store is not such a laborer as is contemplated by §1974 of the Code, giving a lien to a laborer on the property of his employer. Something must be averred and shown other than that the party seeking the lien was a clerk. Laborer, as used in the statute, means what was generally known as a laborer at the time of the passage of the act, and clerks, agents, cashiers of banks, and like employés, whose employment is associated with mental labor and skill, were not considered laborers, and were not included in the statute as such.</p> <p>2. The foreclosure of a laborer’s lien is a summary remedy; the party seeking it must show himself clearly entitled to it, and the statute affording the remedy will be strictly construed.</p>

<p>[Jackson, Chiel Justice, not presiding, on account of providential cause.]</p> <p>1 A movant in a rule against a sheriff is not required to support his execution by the production of the record including the judgment from which the ft. fa. issued.</p> <p>(a.) On a proceeding to foreclose a lien on personalty, a failure to show a demand within twelve months after the claim fell due did not make the process a nullity, but rendered it voidable, and the defect could have been taken advantage of by the defendant or his creditors by counter-affidavit, but not by the sheriff on a rule based on his failure to collect the fi. fa.</p> <p>(b.) A sheriff who refuses to collect a ft. fa. because it issued upon an irregular proceeding will not he protected from a rule on that ground.</p> <p>2. The bare fact that the sheriff had been served with an injunction about four years before, did not protect him from a íule, where he permitted the property to leave his possession and did not make the money. The sheriff was ch argeable by the levy with the property levied on, and it was incumbent on him to show that it had gone lawfully out of his possession, which he failed to do.</p> <p>(a.) The writ of injunction was tendered in evidence without the hill on which it issued or any exemplification of the record in the case, and it was impossible for the coirt to know from the writ itself and the recitals it contained what it prohibited the sheriff and his co-defendants from doing. A part of the record should not have been received, or if received, should not have been acted on.</p> <p>(b.) To shield a sheriff from liability for failing to realize money under a levy made by him, it is not sufficient to set up that he acted honestly and in good faith and intended no disobedience of the precept of the court. Whether he did so or not, is not to be judged of by himself, but by the court, and courts are slow to accept ignorance of law as an excuse for official misconduct.</p> <p>3, This case haying been brought to this court for delay only, ten per cent damages are awarded against the plaintiff in error.</p>

Justice Courts. Jurisdiction. Liens. Debtor and Creditor. Before Judge Hammond. Fulton Superior Court. March Term, 1884. Five justice court fi. fas., in favor of Bell & Brother against Brown, were levied on a certain lot which was claimed by Rich. The five cases were consolidated and tried together.

Officers. Pleadings. Practice in Superior Oourt. Illegality. Attachment. Notice. Before Judge Estes. , White Superior Court. April Term, 1884. A fi.fa. in favor of C. P. Oraig vs. John A. Fraser was levied on a lot of land.

<p>Railroads. Damages. Negligence. Witness. Evidence. Larceny. Diligence. Presumptions. Before Judge Hammond. DeKalb Superior Court. March Term, 1884. • ■ •'</p> <p>Homer brought suit against the Georgia Railroad, alleging that he had been wrongfully ejected from defendant’s train after haying purchased and delivered to the conductor a ticket to his destination; that he was put out.in an old field, away from a crossing, and in the rain. He laid his damages at $3,000.00.</p> <p>On the trial, the evidence for the plaintiff was, in brief, as follows: Plaintiff lived at Stone Mountain, but worked atLithonia, a station further down the road than his starting point, which ivas Decatur.' He purchased a ticket from Decatur to Lithonia and delivered it to the conductor, on demand, before reaching Stone Mountain. After passing that point, the conductor again called for his ticket. He replied that he had given up his ticket. The conductor denied this, said plaintiff had just got on the train and was trying to beat his way, and stopped the train, caught plaintiff by the arm and put him off. It was about seven o’clock in the evening, and was dark and raining. It was from thirty-five to fifty yards from where a small road crossed the railroad. Plaintiff went toa house about- one hundred yards distant, where he had formerly boarded, and stayed all night without cost. He.had.been, attending court in Decatur as a witness, and had gone thither by private conveyance.</p> <p>The evidence for the defendant was, in brief, as follows: Plaintiff and several others purchased tickets at Decatur to Stone Mountain. Two of them expressed an intention of “ beating ” their way to their places of destination below that point, and plaintiff said he intended to “beat” his way to Lithonia. After passing Stone Mountain, the conductor called for his ticket to Lithonia. He claimed to have already given it up. The conductor denied,this,’ and told him he must pay or get off. Plaintiff .felt in his pockets, and said he'had no' money. The, conductor rang the bell, stopped the train and accompanied plaintiff to the steps of the car with his lantern. After the plaintiff was off, the conductor asked if he was all right, and receiving an affirmative answer, the train proceeded. There was only one other passenger in the car at the time. - The conductor did not put his hand on the plaintiff; he would have called for assistance if it had been necessary, but it was not. He testified that he did not see plaintiff until after tlie train left Stone Mountain. ( Plaintiff explained that some water on his hat had got there from his having put his head out o,f the window into the rain. , .</p> <p>The record of a conviction of the plaintiff, on plea of guilty by him, for larceny from the house, was put in evidence. It was dated about four years before the trial, and was from another county.</p> <p>The jury found for the plaintiff $300.00. Defendant moved for a new trial, on many grounds, but the following will show the points decided by the court:</p> <p>(l.) Because the verdict was contrary to law and evidence, and the damages were excessive.</p> <p>(2.) Because the court admitted, over objection,evidence to show that the defendant was worth about $5,000,-000.00 above its indebtedness.</p> <p>(3.) Because the court refused to charge, in effect, that, although the conductor may have been mistaken about having taken the ticket of plaintiff, yet if he acted in good faith and without violence or insult, only actual or nominal damages could be recovered ; but charged as follows : “ The question of the conductor’s good faith and belief! would not affect the plaintiff’s right to recover, but might affect the amount of damages that the plaintiff would be entitled to recover, as the court will explain to you.”</p> <p>(4.) Because the court refused to charge as follows: “While plaintiff was not obliged to resist forcibly any-force used to expel him in order to have a claim against the defendant for damages, yet, before he can claim to have been ejected from the train, there must appear to have been some compulsion greater than words; there must have been some force, however slight, or some display of sufficient force. Obedience by plaintiff to a mere unlawful order of the conductor would not sustain an action for forcible expulsion, so- as to allow exemplary damages or any more than actual damages or nominal damages.”</p> <p>(5.) Because the court refused to charge as follows: “ The conductor would be bound not to extraordinary, but to only ordinary diligence in keeping and remembering about the identity of passengers and tickets, just like other persons conducting business with each other; that is, in the light of reason and according to 1 he nature and circumstances of the business in hand.” [The court charged, in substance, that the rule of extraordinary diligence would apply.]</p> <p>(6.) Because the court charged as follows': “ When you have done that (i. e., determined whether there Avas any injury and what would compensate for wounded feelings or injury to peace and happiness), and your verdict is free from any bias, prejudice or feeling for or against the parties, there is no power on earth that can set it aside; you alone are the judges of what is fair and right in such case.”</p> <p>(7.) Because the court rejected the following testimony of a witness for the defendant: “ As we went from the ticket office to the car, Homer said to me, that he would not have said anything about the mistake in making the change if he had been me.” [The witness had testified that he purchased his ticket at the same time as did the plaintiff; that the agent made a mistake in giving him change; and that he called attention to it, and it was corrected.]</p> <p>The motion was overruled, and defendant excepted. Plaintiff’ filed a cross-bill of exceptions, alleging the following errors:</p> <p>(1.) Because the court admitted in evidence the record of the conviction of plaintiff for larceny from the house.— The objection was that it was irrelevant.</p> <p>(2.) Because the court refused to charge as follows: “ If you believe from the evidence that the plaintiff was illegally ejected from the defendant’s train, the [law.] presumes that it was in consequence of the [want of] use of the diligence required by law of the defendant, its agents and employe's, in the transportation of passengers; and it would be incumbent on the defendant, by proof, to show that they had used that degree of diligence required'of them by law, to-wit, extraordinary diligence.”</p> <p>And because the court charged as follows: “If it (the testimony) be equally balanced, then the plaintiffs case fails, and he could not recover,” and added, after charging that, in case of injury by the running of trains, the presumption of law is against the company, these words: “ But not so in a case like the one you are trying, where the alleged injury is for a refusal to perform a contract to carry a passenger, as is alleged here, and the burden of proof is not on the railroad company, but is on the plaintiff.”</p> <p>(3.) Because the court refused to charge as follows: “If the evidence shows that the plaintiff was illegally ejected from the cars of the defendant, the law presumes he was damaged.”</p> <p>(4.) Because the court charged as follows : “ If you find from the evidence that the conductor did expel the plaintiff from the train, but that he acted in perfect good faith, that is, that he really and truly believed plaintiff had not paid his fare or delivered up his ticket to a point beyond where he was expelled, then you would consider that, in making up your minds as to the amount of damages plaintiff is entitled to.”</p>

<p>1. A court oí equity will not appoint a receiver to hold land pending an action of ejectment for the recovery of the same, where defendant in ejectment was a bona fide purchaser thereof.</p> <p>2. The act of 1876 (Acts 1878, p. 51) required all suits for the recovery of property which had been set apart as a homestead and sold prior to its passage to be brought in equity, and it further provided that such suits should be commenced within six months after its passage.</p> <p>3. No greater right is vested in an administrator respecting the property of his intestate than the latter might himself have exercised and enjoyed if he were alive.</p>

<p>Where, to a statutory proceeding to dispossess an intruder,the defendant filed a counter-affidavit, following the statute literally, except that he alleged that “he does in good faith claim a legal title to the possession,” this was equivalent to a statement that he claimed the right of possession, and was sufficient; and the counter-affidavit was not demurrable.</p>

<p>Decrees. Judgments. Equity. Consent. Practice in Supreme Court. Before Judge Adams. Chatham Superior Court. June Term, 1884.</p> <p>Reported in the decision.</p>

<p>Husband and Wife. Principal and Surety. Title. Garnishment. Administrators and Executors. Before Judge Hammond. Fulton Superior Court. March Term, 3884.</p> <p>Reported in the decision.</p>

<p>Liens. Laborers. Trusts. Clerks. Master and Servant. Before Judge Hammo.nd. Fulton Superior Court. March Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. A husband cannot use his wife’s separate money to buy property for himself; and if he invests her funds in real estate in his own name, equity will fix a trust upon the land; and having jurisdiction for one purpose, it will do complete justice and give full relief between the parties.</p> <p>2. Where a wife filed a bill against her husband, to have an account of dealings between them, and to fix a lien upon property in which her husband had invested her funds, and the defendant claimed that such money as he had used had been given to him absolutely by his wife, there was no error in charging that “ whenever the question arises as to the passing of property from the wife to the husband, it must be closely scrutinized, if the husband claims it as a gift to him; and it must clearly appear that it was a free and voluntary gift by the wife to the husband; and if the evidence does not clearly establish that the same was a gift, then the husband is liable to the wife for all such property as went into his hands and was used by him.”</p> <p>3. Matters of practice, and especially the opening of defaults, are largely in the discretion of the court. Where a defendant, at the first term, filed a demurrer to abill, which was heard at a subsequent term, and overruled, and after the trial had proceeded, and the testimony on both sides had closed, he aslced leave to file air answer, there was no error in requiring him to pay costs before so doing.</p> <p>4. Under a bill filed by a wife against her husband for an account of the dealing between them, and to trace funds of hers invested by him in land in his own name, a portion of the answer, in the nature of a cross-bill, which sought to obtain the custody of the inf ant child of the parties, alleged to be held by the wife, who had separated from her husband, and to enforce her return to his home, and to enjoin certain alimony proceedings instituted by her, was not germane to the main bill, and was properly stricken on demurrer.</p> <p>5. Where it was sought to show that funds and property of the wife had been used by the husband, including a certain promissory note which had been collected by the husband, except a small credit, there was no error in admitting parol evidence as to the amount of such note so collected, the object being not to go into the contents of the writing, but only to show the amount collected and used by the defendant belonging to the plaintiff.</p> <p>6. There was no error in allowing complainant’s solicitor to show that demands were made on the defendant for a settlement of the matters in controversy, and the refusal of the latter to comply with such demand. This differs from admitting in evidence negotiations for a compromise.</p> <p>7. The evidence is sufficient to sustain the verdict as to the amount found in favor of the complainant against the defendant.</p> <p>(a.) Although the entire amount found to be due was not invested in the land on which a special lien was decreed, yet, as a decree would bind all the property of the defendant from its date, including such land, it does not concern him whether the lien be general or special; and there being no contest in this case on the part of other creditors or holders of liens, the fixing of a special lien did no harm to the defendant.</p> <p>(b.) Semble, that a wife need not he living separately from her husband in order that money earned by her by sewing during coverture should form a part of her separate estate, and that such money is an acquisiton which belongs to her.</p>

Telegraph Companies. Damages. Notice. Contracts. Before Judge Harden. City Court of Savannah. February Term, 1884. Fatman brought suit against the Western Union Telegraph Company for $499.50, alleging, in brief, as follows: He was a commission merchant, and desired to furnish a vessel to carry cotton to Barcelona, and for that purpose communicated with W. H. Scott & Company, his agents in Liverpool, so as to get the vessel and furnish it on commission.

Principal and Agent, Real Estate Agents. Commissions. Contracts. Vendor and Purchaser. Before Judge Hammond. Fulton Superior Court. March Term, 1884.

<p>' Alimony. Husband and Wife. Judgments. Liens. Before Judge Adams. Chatham Superior Court. June Term, 1884.</p> <p>Reported in the decision.</p>

Water Courses. Nuisance. Equity. Practice in Su•preme Court. Before Judge Adams. Chatham Superior 'Court. June Term, 1881. Russell Johnson et al. brought their hill against the ■Charleston and Savannah Railway Company to enjoin the obstruction of a tide-water stream, called Knoxboro' Creek, which is a creek or lagoon running into the Savannah river, and to recover damages resulting therefrom.

<p>1. Where a deed purported on its face to have been delivered, and was duly recorded on the day after it was made, it was admissible in evidence, without further proof to show that it was not only signed but delivered. The record of itself is presumptive proof of delivery.</p> <p>(a.) The attestation of the deed by a magistrate raises a like presumption.</p> <p>(6.) Where the grantor gave in the lot conveyed for taxation as the property o! the grantee for several years succeeding the execution of the deed, this was a strong manifestation of the grantor’s understanding that he considered the deed delivered and the title conveyed. It may be that the grantor would be estopped from denying his grantee’s title; especially as he stated in conversations that he held the property as the agent of the grantee.</p> <p>(c.) Where all of these circumstances united, in the absence of explanation or rebutting proof, they would show the delivery of the deed, although it was in the possession of the grantor when he died some years after its date.</p> <p>(d.) Where the record does not show the circumstances attending the execution of the deed, or who caused it to be icgistered or took it from the office after registration, or where it remained for a number of years thereafter, the presumption would be that the grantee received it, caused it to be registered and retained it in his possession.</p> <p>(e.) The facts that the grantor remained in possession of the land for many years after the deed was made and recorded, and received the rents, issues and profits, without accounting for them ; that he paid taxes on the property as his own, except for tho first three years; and that he placed permanent improvements on the property, if unexplained, might have overcome the presumption of delivery. But such facts were explained, and there was no sufficient evidence on which to base a verdict finding against the delivery.</p> <p>2. The presumption is that a party accepts whatever is for his benefit, and the idea of acceptance is necessarily involved in that of delivery. In determining what is sufficient delivery, the intention, of the parties is the controlling element.</p> <p>(a.) The law of this state does not make acceptance as well as delivery an essential requisite of a deed to pass title to land.</p>

<p>Husband and Wife. Guardian and Ward. Married Women. Ordinary. Laws. Before Judge Brown. Milton Superior Court. February Term, 1884.</p> <p>Reported in the decision.</p>

<p>Liens. Actions. Construction of Statute. Practice in Supreme Court. Parties. Before- Judge Eve. City Court of Eichmond County. March Term, 1885.</p> <p>Eeported in the decision.</p>

Railroads. Damages. Negligence. Laws. Charge of Court. Jury and Jurors. Diligence. Verdict,. Husband and Wife. Before Judge Dorsey. City Court of Atlanta. December Term, 1883. Mrs. Nancy E. Pittman brought case against the Georgia Railroad to recover for the homicide of her husband.

<p>1 A by law of a corporation provided that stock therein could only be transferred by a surrender of the certificates, and on the transfer book of the company kept in its office, by the person in whose name the stock appeared or by an authorized legal attorney. Another by-law reserved a lien on the stock and restricted its assignment until all debts due by, or demands against the person holding the stock should be fully paid to the company. The holder of stock contracted a debt and made a note therefor, reciting in it that he had deposited with the creditor as collateral security .twenty shares of stock. On the back of tbe certificate was endorsed an assignment, leaving the name of the transferee, the number of ■ shares and the date blank. It did not appear that the creditor had actual possession of the stock. The holder of the stock was indebted to the company, and the debt was not discharged until after the stock was attached. Another creditor of the stockholder sued out an attachment against him, which was levied on some of the stock, and garnishments served both on the company and on the other creditor. After the execution of the attachment, the company delivered to the other creditor twenty shares of stock, ten of which had been issued in the name of the defendant and ten to his wife, this being much more than such creditor’s claim:</p> <p>Held, that after the execution of the attachment, the other ci editor had no right to appropriate more of the stock hypothecated than was sufficient to pay the debt held against the defendant. The remainder belonged to him, and was subject to the attachment.</p> <p>2. A “boss” or director of an entire department of an extensive factory, employing and discharging the hands who work under him, to the number of one hundred and fifty, who receives a monthly salary of one hundred dollars, although payable at the end of every two weeks, and who is not required'to do manual labor, but is expected, from his skill and intellectual fitness, to direct the work of the operatives under him, is not to be regarded as a journeyman mechanic or day laborer, within the meaning of the statute which exempts the daily, weekly or monthly wages cf such persons from garnishment.</p> <p>(a.) 'Were it an original question, this court would hesitate to hold that the classes of persons embraced included overseers and clerks in stores; and the rulings already made will not be further enlarged.</p> <p>S. The property of a non-resident debtor in the hands- of a party in this state is subject to garnishment, and an exemption from garnishment declared by the law of the forum will not apply in favor of such non-resident debtor, unless by express statutory enactment. Exemption from such liability is a personal privilege as contradistinguished from a right, and the laws conferring it have no extraterritorial force. They are treated as part of the remedies for the collection of debts, are in furtherance of state policy, and can have only a local application.</p> <p>(a.) In such a case, where the property of a resident of another state is found in this state, he cannot claim the exemption laws of this state as against a garnishment, but in this respect reciprocity is comity.</p> <p>(&.) The right of the widow of a non-resident to dower stands on a different basis.</p>

<p>Master and Servant. Contracts. Judgment. Res adjudicates. Before Judge Harden. City Court of Savannah. May Term. 1884.</p> <p>McCarthy brought suit against Kennedy on an open account as follows:</p> <p>"For salary as clerk for the months of February, March, April and May, 1883, four months, at $50 per month......................$ 200 00</p> <p>Cr.</p> <p>By cash received from other employment.......... .......$ 20 00</p> <p>To balance..................................................................$ 180 00”</p> <p>Defendant pleaded the general issue; and that the plaintiff had represented that he was competent to discharge the duties for which he was employed, that is to keep the books pertaining to the business of defendant as a tailor, to make entries of measurements taken by defendant of his customers, and to attend to the business of a clerk for him, but that plaintiff was incompetent, and failed to comply with his contract, and therefore defendant discharged him.</p> <p>The evidence under the pleas filed was conflicting; especially as to whether the term of employment was for a year at $50.00 per month, or whether it was to continue as long as the plaintiff suited the defendant; and also as to plaintiff’s competency.</p> <p>It was shown that plaintiff brought suit in a justice’s court at the end of January, 1883, for the salary claimed by him for that month; that defendant relied on substantially the same defences as those now pleaded ; and that plaintiff recovered j udgment, which was paid. The j ustice testified that he based his judgment solely on the ground that plaintiff had entered on his service for the month of January before lie was discharged, and that there was no need to pass on other questions.</p> <p>The verdict was in favor of plaintiff for $180.00 principal. Defendant moved for a new trial, which was refused, and he excepted.</p>

Charge of Court. Practice in Supreme Court. Railroads. Damages. Negligence. Before Judge Pottle. Hancock Superior Court. October Adjourned Term, 1883. Thomas brought his action against the Georgia Railroad for $10,000.00, for a personal injury. The case was tried, a verdict rendered for plaintiff for $1,000.00, a new trial refused, and a reversal granted by the Supreme Court (see 68 Oan 744).

Railroads. Damages. Contracts. Before Judge Simmons. Bibb Superior Court. April Term, 1884. Frank H. Moses brought his action for damages against the East Tennessee, Yirginia and Georgia Railroad, alleging that he had been wrongfully ejected from its train. On the trial, the evidence of the plaintiff was, in brief, as follows : In March, 1882, he saw an advertisement of ex ■ cursion tickets from Macon, Georgia, to Jacksonville, Florida, and return, at very low rates.

Equity. Fraud. Before Judge Willis. Muscogee Superior Court. May Term, 1884. Abraham Illges filed bis bill against Armory E. Dexter alleging, in brief, as follows: The North and South Railroad was incorporated in 1870 to run from Columbus to Rome.

<p>Railroads. Damages. Negligence. Nuisance. Landlord and Tenant. Before Judge Simmons. Houston Superior Court. April Term, 1884.</p> <p>English brought his action for damages against the Central Railroad, alleging, in brief, as follows: The Southwestern Railroad built an embankment so as to dam and pond up the waters of a certain creek which was crossed by its track, thus rendering the neighborhood sickly and creating a nuisance. The Central Railroad leased the Southwestern road, and continued the nuisance in 1878 and 1879, though often notified to abate it. Plaintiff leased the land on which was the pond from the owner for farming purposes in 1878 and 1879, moved thereon with his family, and planted and proceeded to cultivate it until the summer and fall months, when his family were stricken with chills and fever arising from the maintenance of the pond ; and he was unable to finish the cultivation of the crop, the greater portion of it proving a loss; and some of his children died.</p> <p>Defendant pleaded the general issue; that the pond existed before the plaintiff rented the land, and he had full knowledge of it, and was not entitled to recover; and that, if plaintiff had any right of action, it was against his landlord, and not against defendant.</p> <p>It is unnecessary to detail the evidence further than the following: Elournoy, the landlord of the plaintiff, testified that the means of carrying off the water from the land were totally inadequate, and that the culvert built by the railroad for that purpose was too high above the creek, which ran at that point, to carry off the water effectually, and that the ditch was not-cleaned out by 1he railroad-company ; .also that he notified the president, superintendent, the road-master, the supervisor and the overseer of the condition of the culvert and the backing of water on his land, and requested that it be put in proper condition. Some of. these notices were personal and others bv letter. When asked if he ever gave any notice on behalf of his tenant, the plaintiff, he said that he did so notify the railroad overseer; and that he thought he had spoken to oné other official of the road about the condition of the plaintiff’s family and the necessity of putting 1he drain in proper condition, but of this he was not positive.</p> <p>Plaintiff testified that he notified the section-master of the road of the condition of the pond and ditch, who replied that it was not worth while to clean it, as it would fill up every rain. (This was denied by the section-master who also stated that he had no authority to do the work without orders from his superior officer.) It appeared that plaintiff moved on the place in 1877, and rented for that year, and also rented for 1878; that the pond was there in both years. He testified that the sickness in his family first began in the fall of 1877 ; that in that year he made a good crop, and planted a crop iu 1878, but his family were sick and unable to work, and thereby he was unable to gather a full crop, and was put to expense in hiring help. There was other testimony as to loss of crops, and his expenses incurred in hiring labor to take the place of his sick family were stated at about $200.00 to $250.00.</p> <p>Much other testimony was introduced on both sides, which need not be stated. There was conflict on almost every material point — the cause of the pond, its effect, the loss of plaintiff, and whether the railroad company had done what was necessary in making the culvert and cleaning the ditch.</p> <p>The jury found for the plaintiff $200.00. Defendant moved for a new trial, on the following grounds:</p> <p>(1) to (3.) Because the verdict was contrary to law, evidence and the charge of the court.</p> <p>(4.) Because the court refused, to give in charge §3034 of the Code.</p> <p>(5.) Because the court refused to charge as follows: “ If you are satisfied from the evidence that the plaintiff, English, rented this place in the year 1877 and lived on it, and knew, all about the pond, and that it created sickr ness of himself and family, and after this knowledge of the existence of the pond, and that it did create sickness, he again rented the same land and resided on it for the year 1878, then I charge you that he cannot recover in this case, unless it should appear from ,the evidence that the size of the pond was increased by the negligence of the defendant during the year 1877 or 1878, so as to cause additional injury to the plaintiff or family or crop.”</p> <p>The motion was overruled, and defendant excepted.</p>

Husband and Wife. Debtor and Creditor. Title. Trusts. Before Judge Simmons. Bibb Superior Court. April Term, 1884. Rachel A. Wood brought ejectment against Gorman, as tenant in possession, and the Wilson Sewing Machine Company was made a party as the real claimant of the title.. On the trial, the evidence showed, in brief, as follows; Mrs. Wood was married to her husband, George Wood, in 1849.

Elections. Ordinary. Fence. Goyernment- Constitutional Law. Quo Warranto- Injunction. Before Judge Roney. Richmond ¡Superior Court. April Term, 1884. Held: and was held, at the court-house alone; and if the vote of the city be rejected, there was a large majority for “fence” in the country districts. (4.) Because the law under which this election was held was contrary to the constitution of the United States.

<p>1. Where a draft was made payable to the order of the cashier of a bank, and was by him indorsed to the cashier of another bank “ for collection, for account of” the first bank, this was nothing more than a warrant of attorney authorizing the indorsee to collect the amount due on the draft for the indorser. It conveyed no title except for that purpose, and was notice to all persons subsequently dealing with it that the indorser had not parted with the title or intended to transfer the ownership of the proceeds to another.</p> <p>2. Where the cashier to whom a draft was thus indorsed in turn indorsed it to a third person ‘ ‘ for account of ” the second bank, and the person to whom it was thus indorsed received the money from Ihe drawees, it received that which belonged to the original payee, and this put it in privity with such payee to such an extent that, upon failure to pay on demand, an action for money had and received would lie.</p> <p>(a.) The reception by one of money which belongs to another, and a demand by that other, makes all the privity necessary to maintain an action for money had and received.</p> <p>S. The final indorsee making the collection could not apply the amount received to a claim held by him against the bank last indorsing, as against the original payee.</p>

<p>1. Where interrogatories stated the place of execution as “Georgia, Harris county,” this was a sufficient statement, and objection on that ground was properly overruled.</p> <p>(a.) A party, to avail himself of any exception to the execution or return of a commission, must make the same in writing and give notice to the opposite party, or he must show that the commission has not been returned and was not in the clerk’s office twenty-four hours before the trial. If neither of these facts appears, the overruling of such exception will not cause a reversal.</p> <p>:2. Where a defendant inf. fa. was a witness for the claimant of the property levied on; and while on the stand, denied making certain statements in regard to the transaction being investigated, it was admissible to prove such statements for the purpose of impeaching and contradicting him.</p> <p>."3. After a judgment has been rendered and execution has issued thereon, if the plaintiff in execution die, his administrator or executor, or perhaps his heirs at law, may have the execution levied; or any other person who owns such execution, or to whom it may have been transferred, may cause it to be levied. If the property . levied on be claimed, then some one who controls the execution, . as executor, administrator or transferee, must be made a party to the claim case for the purpose of securing the costs. If the sheriff should receive and collect the money due on an execution after •■the death of the plaintiff, the payment to him would be good, and •would extinguish and satisfy the judgment, and the sheriff would hold for the use and benefit of such representative of the deceased as may have been or may be appointed to manage the estate.</p> <p>■('a.) Therefore, an issue tendered in a claim case, that the plaintiff in ■ execution had died before the levy, was properly stricken on demurrer.</p> <p>-4. The charge is plain, full and correct, and the verdict is sustained by the evidence.</p>

<p>1. Complaint for land was brought in the statutory form. Both parties claimed under the same grantor, the plaintiff holding a deed, defendants a bond for title. The deed to the plaintiff, which was attached to the declaration as an abstract of title, contained the following clause:</p> <p>“ This conveyance is also made subject to the rights of Henry Meyers, C. Herman Oellrich and Annie M. D. Oellrich, as holders of a bond for titles from said W. B. Walton, their heirs and assigns, conditioned upon the payment of six purchase money notes therein described, that said W. B. Walton would make, or cause to be made to them, titles to the premises therein and herein described, and said purchase money notes having been transferred by said Walton to said party of the second part, and said party of the second part, upon payment of said notes, obligating itself to make such conveyance to the holders of said bond for titles; and it is covenanted between the parties hereto that until such payment is made by the holders of said bond for titles, or their assigns, the legal and equitable title of said premises shall remain in said party of the second part, its successors and assigns</p> <p>Held, that the declaration could be amended by alleging that the plaintiff claimed title as security for the indebtedness set up in the deed, and by praying that the verdict should be so moulded as to subject the premises described in the deed attached to the declaration to the payment of the note set out therein. Such an amendment, if necessary, was merely explanatory, and made clearer the cause of action. It added neither a new cause of action nor a new party.</p> <p>(a.) A deed made to secure a debt passes title, so as to authorize a recovery of the land. The defendants could file an equitable plea, pay the purchase money, keep the land, and have the title decreed to them, but to do this, they must tender the purchase money. And so also a prayer for equity by the plaintiff is germane to an action of ejectment or complaint for land.</p> <p>(b.) The cases in 59 Ga., 355; 66 Id., 148, 483 ; 67 Id.,84, 89; 19 Id., 313; 60 Id., 150; 53 Id., 109; 51 Id., 620, ciffer from the present case.</p> <p>2. Where it was sought to obtain title to real estate free from an encumbrance, which was known by the purchasers to be resting thereon, and in order to do so, it was necessary to raise a sum of money by discounting the notes of the purchasers given for the land, and where a deed.was made and a mortgage given to secure the purchase money, but it was discovered that the money could not be raised thereon, and thereupon, within a few days, the deed and mortgage were cancelled, a deed was made to a third party to secure an advance of the money,, and a bond for title was given to the purchasers, and where these negotiations were conducted on the part of the purchasers by one of them for himself, and as agent for the others, and the object of his agency was the negotiation for the land and obtaining a clear title thereto :</p> <p>Held, that such agency, being for the negotiation for the land and ob ■ taining a title, need not have been in writing, as would have been the case with an agency to make a conveyance. And, therefore, the court did not err in submitting the question of agency by parol, and its 'continuance to the consummation of a trade and the procurement of a clear title, to the jury, on the facts.</p> <p>(a.) The verdict was right under the fácts. ‘</p> <p>(6.) All the evidence explanatory of the entire trade between the vendor and the purchasers was admissible and necessary to elucidate the question of title, the character of title each had, and the extent of the agency of one of the co-tenants for the others.</p> <p>(a.) The record in an equity case about waste could not elucidate the issues in the present case, so far as the record in this court shows, and was properly rejected.</p> <p>3. In an action of ejectment or complaint for land based on a deed held by the grantee to secure a debt, the equitable rights of the parties might be adjudged, on proper pleadings at the instance of the plaintiff, as well as at that of the defendants; especially where the plaintiff offers terms easier for the defendants than they themselves could set up by equitable plea.</p> <p>(a.) The distinction between equitable and legal powers is very slight, under the Code of this state.</p> <p>(6.) The holder of the deed to secure a debt which it discounted for the grantor, in order that he might consummate the trade with his purchasers and make them a clear title when the purchase money was paid, was subrogated to the rights of the grantor, and could recover the land in ejectment; and if the verdict and judgment were so moulded as not to eject the purchasers entirely, but to have the land sold, the debt for it paid, and the balance of the proceeds, if any, paid to them, this could legally be done, and was beneficial to the defendants, rather than adverse to them.</p>

<p>1. The evidence being conflicting, there was no abuse of discretion in refusing a new trial on the ground that the verdict was contrary to law and evidence.</p> <p>2. The statute of frauds does not require that all the terms of the con-. ’ tract should be agreed to or written down at one and the same . time, nor on one piece of paper; but where the memorandum of the bargain is found on separate pieces of paper, and where these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute, provided the contents of the signed paper make such reference to the other written paper or papers as to enable the court to construe the whole of them together as containing all the terms of the bargain. If, however, it be necessary to adduce parol evidence, in order to connect a signed paper with others unsigned, by reason of .the absence of any internal evidence.in the signed paper to show a reference to or connection with the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain, so as to satisfy the statute.</p> <p>(a.) Certain parties made a bargain-of purchase, with a person in Savannah, Ga., claimed by them to be the agent of the vendors, and claimed by the vendors to be a broker. This person sent the following telegram to the vendors: “Mendel five bellies, eight. Ehrlich offers seven-eights ten bellies lighter than last.” On the -same day he made the following entry in his entry book: “ Sold account O. H. North & Go., Mendel, 5 bellies 8:”</p> <p>Reid, that this was not a sufficient memorandnm in writing to comply with the requirements of the statute of frauds, so as to bind Mendel & Brother as purchasers. It fails, to set out the purchasers or the quantity and price of the article sold, and parol evidence was not admissible to supply these defects.</p> <p>(c.) To the exceptions made hy the Code to the statute of frauds and perjuries (29 Ch. II.) other will not be added by construction.</p>

Equity. Partners. Contribution. Debtor and Creditor. Before Judge Brown. Cobb County. At Chambers. May 16, 1884. W. H. Huguley sued Morris & Tumlin as partners. Tumlin pleaded nul tiel partnership. The facts will be found fully reported in 65 Oa.% 666, where it was held that Tumlin was a partner, or else the principal and Morris the agent, and that Tumlin was liable to the plaintiff.

Criminal Law. Embezzlement. Tax. Officers. Before Judge Estes. Habersham Superior Court. March Term, 1884. Fuller, the tax collector, was tried on a presentment for embezzlement of money belonging to the county of Haber-sham for taxes of 1882. The evidence showed, in brief, as-follows: The defendant was short in his accounts as tax collector $1,948.22, less his commissions.

<p>A mortgage fi.fa. was levied on a stock of goods. To release them the debtor conveys them, with other property, to one Coggins by an instrument which purported to be for a consideration of $S70.00, “ a part of which is to be paid to Silvey & Dougherty (his creditors), and the remainder paid to debts I am owing, by J. N. Cog- . gins, or by Coggins & Furr.” The stock of goods largely exceeded in value the consideration named. Coggins took possession of the property, arranged to pay off the mortgage fi. fa., and also paid some other debts at the request of the debtor, and in pursuance of an understanding with him when the instrument was executed and delivered. The conveyance made no express provision for the payment of debts other than those specified. JSlo inventory was taken until after the instrument was executed, and it was never sworn to or annexed to the conveyance. A judgment obtained after the making of this instrument was levied on the property:</p> <p>Held, that the conveyance was an assignment for the benefit of creditors, and was void, because thero was no complete inventory and schedule of the assets of the assignor made out and sworn to by him and attached to the deed.</p> <p>(a ) This court has held that the act of 1880 is to be liberally construed in favor of creditors, and strictly against the debtor and his assignee, and that the schedule of the property assigned must be made out specifically, and attached to the deed of assignment at the time of it execution.</p> <p>(&.) If the instrument was not an assignment, there was sufficient evidence to authorize the jury to find that there was a secret trust reserved in favor of the debtor, and that the purpose of the arrangement was to delay his creditors.</p>

Factors. Principal and Agent. Damages. Recoupment. Customs. Debtor and Creditor. Before Judge Fort. Macon Superior Court. November Term, 1883. To the report contained in the decision it is only necessary to add the following: Plaintiffs sued defendants on a note and open account.

Homestead. Constitutional Law. Public Policy. Yen. dor and Purchaser. Levy and Sale. .Notice. Before Judge Simmons. Crawford Superior Court. March Term, 1884. • This was a claim case submitted to the presiding judge upon an agreed statement of facts, which showed, in brief, as follows : In February, 1S77, Bryant, as head of a family, consisting of his wife and minor children, had set aside to him a homestead in certain property in Crawford county.

<p>Criminal Law. License. Liquor. Husband and Wife. Accessory. Before Judge Adams. Emanuel Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. The charter granted to the Macon Street Railroad Company (Acts 1868, pp. 107, 108) contemplates the construction of the road and the running of cars for the use of all the public, and not of any one person, natural or artificial. Under it, the municipal authorities could authorize the propelling of cars through the streets by steam for public use; but they could not do so for private use; and if they sought to do so, a bill to enjoin the authorizing by the city of such use, and to stop the damage which ils authority had permitted, on behalf of a property owner whose property was injured, was not without equity.</p> <p>2. Where such authority to haul coal, etc., for a manufacturing company was sought to be granted to the Street Railroad Company in consideration of an annual payment to be made to the city, and' this was done for the benefit of the manufacturing company, which was a party to the contract, and guaranteed the annual payments, and that it would save the city harmless against any damage arising from the use of steam, there was equity in the bill filed to enjoin such illegal use, as against such manufacturing company.</p> <p>3. There was also equity in such a bill, as against the Street Railroad Company. It was a party to the contract, was the instrument used to work the injury and confer the benefit, was the actual perpetrator of the wrong, and was an essential party to the injunction.</p> <p>4. The municipal authorities, the Street, Railroad Company and the manufacturing company, charged in the bill to have combined in the diversion of a charter granted for public purposes to private benefit, and to have been parties to a contract for that purpose, were properly joined in the bill as defendants.</p> <p>5. The other parties defendant to this bill are made so because connected with the two private corporations, or one of them, as president, agent or purchasers, and may be interested in the subject-matters of the suit, as they “ claim an interest in or control over the street railroad franchises.” Discovery is sought, and an attack is made on the legality of the purchase and title to the corporate franchise of the ¡Street Railroad Company. These parties were proper, on the principle that in equity all parties in interest should be joined.</p> <p>6. The contract being illegal, its violation could only add additional force to the charge of the use of a franchise for private benefit.</p>

<p>1. If a written subscription for stock was, or appeared to be, complete within itsélf, a subscriber could not go outside of it, so far as concerns the conditions upon which the subscription was made; but where the writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove other portions thereof not. inconsistent with the writing.</p> <p>(a.) A subscription in these words, “We, the undersigned, hereby subscribe for the amount of stock opposite our names, and agree to pay the same in four quarterly installments, viz., February 15, April 15, June 15 and August 15, for the purpose of forming a company to erect an academy of music,” was, on its face, an incomplete agreement. It was entirely silent as to the location and • nature of the structure, whether the company was to be a joint stock company or an incorporation, what amount was necessary' to accomplish the object sought, and as to the mode and method of raising the necessary fund to complete and equip the building, the specific purposes for which it was to be used, and the way in which its business was to be conducted.</p> <p>(&.) It will not do to assume that the contract is merged in the charter subsequently obtained. Whether the agreement, as understood by the parties thereto, is embodied in that charter, is the point in dispute, which can only be determined by testimony, which was rejected.</p> <p>2. In 57 Oa., 240, after a charter had been obtained, it was held that the subscriber contracted with reference to the charter, that the number of shares to be subscribed, or the whole capital stock necessary to do the contemplated business, constituted an important element in the contract, and that, if the amount fixed by the charter had not been subscribed, or having been subscribed, subscriptions had been released so as to reduce the capital stock mateiially, without the consent of the subscriber, his subscription could not be enforced against him.</p> <p>3. It makes no difference that a subscription was made in anticipation of the formation of an incorporated company. Where the capital stock is fixed at a given sum, divided into shares of a certain amount each, the whole amount of the capital stock must be fully subscribed before an action will lie against a subscriber to recover assessments levied on the shares of stock, unless there is a clear provision in the contract to proceed with the accomplishment of the main design with a less subscription than the entire amount of the capital specified, or there isa waiver, either express or implied, of the condition precedent; and whether or not there has been such a waiver, is a question for the jury.</p> <p>(a ) The pleas in this case, taken as a whole, constituted a.good and legal defence, which should have been submitted to the jury, and it was error to strike them.</p>

<p>Dedication. Streets. Title. Prescription. Before Judge Roney. Richmond Superior Court. April Term, 1884.</p> <p>Reported in the decision,</p>

Contracts. Waiver. Master and Servant. Pleadings. Before Judge Hammond. Fulton Superior Court. March Term, 1884. Edwards brought suit against Block to recover $1,300.00, less a credit of $50.00, on a contract for services as a baker. The declaration alleged, in brief, as follows: Defendant employed plaintiff for a year, beginning January 6, 1882, and ending January 6, 1883, at $25.00 per week.

Res adjudicata. Practice in Supreme Court. Evidence. Insanity. Before Judge Carswell. Bibb Superior Court. October Term, 1888. Gray filed his bill against Obear, as executor of William Gray, deceased, and as trustee for complainant. He alleged that the trust was created during his minority by the will of his father, William Gray, but that he had since become of age and capable of managing property, and that the trust had become executed.

Charge of Court. New Trial. Contracts. Verdict. Election. Notice. Before Judge Branham. Polk Superior Court. February Term, 1884. Eaves & Collins brought suit against the Cherokee Iron Company for breach of the following contract: “State op Georgia — Polk County.

<p>Actions. Damages. Title. Parties. (Harriers. Railroads. Bailments. Borrowing. Before Judge Hammond. Ful ton.Superior Court. March Term,-1884.</p> <p>Reported in the decision.</p>

<p>1. Some person must be sued, either natural or artificial. Where suit was brought against “Albany Lodge, No. 24, Free and Accepted Masons” and “Albany Chapter, No. 15,Royal Arch Masons,” without alleging either that the defendants were corporations,.or that the .members were partners, so as to be sued as such, there was no party defendant, and a demurrer was properly sustained.</p> <p>2. No person being sued, no case was in court, and there was nothing - to amend by.</p>

Husband and Wife. Married Women. Judgments. Promissory Notes. Equity. Trusts. Injunction. Before Judge Branham. Eloyd Superior Court. September' Term, 1884.

<p>Husband and Wife. Parties. Actions. Before Judge Dorsey. City Court of Atlanta. December Term, 1883,</p> <p>Reported in the decision.</p>

Landlord and Tenant. Estates. Emblements. Dower. Husband and Wife. Before Judge Willis. Chattahoochee Superior Court. March Term, 1884. Mary E. King et al. brought suit against Whittle for the use and occupation of certain land.

<p>Municipal Corporations. Judge. Montezuma. Nuisance. Evidence. Compromise. -Jurisdiction. Mills. Before Judge Fort. Macon Superior Court. December Term, 1883.</p> <p>To the report contained in the decision it is only necessary to add the following:</p> <p>From a judgment of the Mayor, etc., of Montezuma,' declaring a mill-pond to be a nuisance and ordering it abated, Minor, surviving partner of Drumright & Minor, and the executors of the deceased partner, sued out a certiorari, alleging, in brief, the following errors:</p> <p>(1.) That the judgment was contrary to law'.</p> <p>(2.) Because the Mayor, etc., erred in refusing to continue the case, on motion, because of the absence of witnesses.</p> <p>(3.) Because they overruled written objections going to show them disqualified, and refused to hear proof of such objections. — These were based on the ground that the mayor and each of the council had previously given evidence against plaintiffs in certiorari on the identical question on trial, and thus had formed and expressed an opinion as to it; that they had employed an attorney to prosecute the action to abate the pond as a nuisance, had interviewed witnesses, and had openly declared that it was a nuisance, and that they intended to abate it; that J. E. De Vaughn, one of the council, owned land flooded by the pond, and had said that the pond was a nuisance, and that if thé Mayor, etc., would not abate it, he could and would have the Avater removed from his land.</p> <p>(4.) Because the. Mayor, etc., admitted the report of the board of health of Montezuma, condemning the pond as a nuisance, in evidence, over objection of plaintiffs in certiorari. — The objection was based on the grounds that the appointment of the board was not proved from the minT utes and the genuineness of the report. proved; that it showed on its face that it was subsequent to the commencement of the proceedings.; that each of the board had given evidence against plaintiff in certiorari, and had formed and expressed an opinion, and were not impartial, and were appointed with, a view to their expression of such opinion.</p> <p>(5.) Because the Mayor, etc., rejected evidence to show that the pond was essential to the value of the mill; that damage would result from its destruction; and that no adequate compensation had been paid or tendered.</p> <p>(6.) Because B. B. Hinton, Esq., the attorney employed by the Mayor, etc., consulted with them in secret during the progress of the trial and while they were deliberating on the case.</p> <p>(7.) Because the Mayor, etc., admitted evidence of two witnesses, Wilson and Jarnagin, to the effect that, acting for the council, they had offered to Drumright, one of the firm of Drumright & Minor, who owned the mill, $800.00 if he would not rebuild the dam after it broke; that he offered to take $1,000.00; that he agreed to take $800.00, but subsequently “ backed out.” Wilson testified that this proposition was to compromise the matter. — The objection was that Drumright was dead, and that propositions of compromise were inadmissible.</p> <p>(8.) Because the Mayor, etc., have no power summarily to destroy the property of plaintiff in certiorari, without trial by common law.</p> <p>(9.) Because the Mayor, etc., refused to rule out the testimony of Wilson and Jarnagin, as above stated, on motion.</p> <p>(10.) Because the Mayor, etc., allowed the witness, Jarnagin, to testify that he offered, through Wilson to Drum-right, $800.00 not to rebuild the dam, and refused to allow him to be asked the value of the mill and dam and how much the breaking of it would damage the plaintiffs in certiorari.</p> <p>The Mayor, etc., answered the certiorari. They explained the refusal to continue, stating that time was allowed, and efforts were used by them to obtain the evidence of an absent witness, but owing to the facts that the witness refused to attend, saying that he had no opinion on the subject (he being a medical expert), that he lived out of the town, and when, served with an attachment, was in another county, it was impossible to secure his presence. They denied that it was offered to show that the appointment of the board of health was not genuine, and asserted that the record showed that it was, and that the board reported before the trial. They admitted that the members of the board of health had expressed an opinion that the pond was a nuisance before their appointment, but asserted that almost every other intelligent citizen had done the same thing, and that it would have been impossible to have appointed a board of health not directly interested and composed of members who had not formed or expressed an opinion to that effect. They denied, however, having appointed the board with a view to such opinion.</p> <p>In regard to the offer to pay $800.00 to Drumright if the dam should not be rebuilt, they answered that plaintiff in certiorari had shown by several witnesses that no offer of compensation had been made; and in rebuttal, this offer to pay was allowed to be shown. They held that the death of Drumright made no difference, as it appeared that Wilson and Jarnagin were acting for both parties, and were alive. They denied secret consultations, and asserted that the trial was fair and impartial.</p> <p>A traverse was filed to the answer; but the bill of exceptions contains a copy of a consent order that the judge should pass a final judgment on the petition and answer, and an agreement of counsel, which was made part of the answer.</p> <p>The judge sustained the certiorari, and ordered a new-trial. The Mayor, etc., excepted.</p>

<p>1. The law of this state providing for the issuance of an attachment against a non-resident debtor is not in conflict with section 2, article 4 of the constitution of the United States, which declares that citizens of each state shall be entitled to all privileges and immunities of citizens of the several states, nor is it in conflict with the fourteenth amendment of that constitution.</p> <p>(a.) A corporation is not a citizen.</p> <p>2. Where an attachment was issued on an open account, there was no error in leaving the ease to the jury, although the proof of the account was a writing.</p>

' Practice in Supreme Court. Debtor and Creditor., Attachment. Practice in Superior Court. Before Judge, Hammond. Fulton Superior Court. .March Term, 1884. Falvey sued out an attachment against Z. W. Adamson, on the ground that the defendant was making, or had made, and was about consummating, a fraudulent, transfer of certain property to his father, C. Q. Adamson, for the purpose of defeating his creditprs.

Railroads. Damages. Negligence. Master and Servant. Principal and Agent. Practice in Superior Court. Constitutional Law. Before Judge Fort. Clarke Superior Court. May Term, 1884. Mrs. L. D. Ivey brought her action against the Georgia Railroad for the homicide of her husband.

Wills. Estates. Evidence. Heirs. Words and Phrases. Before Judge Adams. Chatham Superior Court, June Term, 1884. Guerard et al. filed their bill against Guerard e\ al. for partition, and to obtain' a construction of the will of Dr. Augustus Guerard, deceased, under which both sides claimed, the subject-matter of the conflicting claims being a half interest in a lot of land in Savannah, Georgia. The facts are sufficiently stated in the decision.

Title. Contracts. Sales. Delivery. Cotton. Factors. Before Judge Simmons. Bibb Superior Court. October Term, 1883. To the report contained in the decision, it is-only necessary to add that the j ury found for the defendants, and a motion for a new trial having been overruled, plaintiff excepted.

Interrogatories. Evidence. Negligence. Presump, tions. Railroads. Damages. Before Judge Clarke.. Quitman Superior Court. March Term, 1884. Georgia Sanders brought suit against the Central Rail- • road for a personal injury, laying her damages at ten thousand dollars. The defendant pleaded the general issue..

<p>Under an issue, formed on a distress warrant, the landlord testified that he rented land to the tenant and was to receive two bales of cotton for the rent'; that he also became security for the tenant and another for provisions, and had paid off that debt; that the tenant had delivered to him one hale of cotton, giving no instruction, as to its appropriation; and that he sold it and applied the proceeds to the payment of the debt which he had paid off as security. ■ It did not appear that the tenaüt knew that the landlord had taken up the security debt when the cotton was delivered:</p> <p>jB'eld, that the intention of the parties as to the application of the cotton should have been left to the jury, and such intention would control.</p>

<p>Parent and Child. Amendment. Actions. Homicide. Before Judge Simmons. Bibb Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

<p>If a telegraph, company receives a message for transmission over its lines, and it does transmit the same, it must .do so correctly. If this cannot be done by reason of storms or other atmospheric influences, the company will be excused for the non-transmission of the message. But if it be transmitted, and there should be such changes or alterations in it as to cause the sender damage, the company wou’d be liable therefor.</p> <p>(a.) The verdict was demanded by the evidence, and errors in the charge did no harm.</p>

Trespass. Nuisance. Actions. Damages. Municipal ¡Corporations. Sewers and Drains. Before Judge Dorsey. City Court of Atlanta. June Term, 1884. ■ On May 16, 1882, Mary A. Reid brought case against the city of Atlanta.

<p>Where an execution was deposited as collateral security for a debt of the plaintiff, and was collected by the persons so taking it, but no entry of settlement was made thereon, and it was returned to the plaintiff without an entry, and he subsequently sold and assigned it for value, there was no privity between the purchaser of the fi. fa. and those who had held it as collateral security; and upon the failure of the transferee to collect because of its previous payment, he had no right of action to recover damages from them; anda declaration for that purpose was demurrable.</p>

<p>Partnership. Contracts. Injunction. Husband and Wife. Year’s Support. Before Judge Fort. Macon County. At Chambers, November 25, 1884.</p> <p>Amanda M. Gurr filed her bill against T. S. Martin, executor, alleging, in brief, as follows : Defendant and the husband of complainant were partners in farming. Her husband died, leaving no estate, except his interest in the partnership property. She applied for a year’s support out of it, and appraisers were appointed to set it aside. After the death of complainant’s husband, defendant took charge of the partnership business, and he is gathering and marketing the crop, and represents that the business “will not pay out.” The alleged debts are, in part, debts due for supplies and money borrowed. Defendant is using and appropriating the effects. Injunction was prayed to restrain the selling or removal of the property until an accounting with complainant, and until the appraisement could be had.</p> <p>Defendant answered, denying that there was any partnership, and claiming that, under the contract, he had the right to control the property in order to settle the business.</p> <p>The contract between the deceased and defendant was as follows:</p> <p>“The said Martin agrees to furnish to the said Gurr for farming purposes the present year, 1884, on the farm of land in Houston county, known as the John Martin farm, the following property, to be used only on said farm: five mules and one horse, horse to be used only a portion of the year, the farm for cultivation on which said Gurr now lives, together with the necessary implements, such as is now in use on said farm; also cotton-seed to plant and for manure; also said Martin to furnish one-half of guano. Said Martin loans all cottonseed for manure, and is to hold all cotton-seed grown on the place the present year. Said Gurr to have no interest in any cotton-seéd grown on said place the present year, he haying furnished none. Said Martin further agrees to advance, for the support of said Gurr the present year, 100 pounds meat (only 100 pounds meat for the whole year) and $10.00 per month for ten months of the present year, s.aid Gurr to pay said amounts back to said Martin. Said Martin further agrees to loan to said Gurr corn to ration the hands, if the same is ón the place. Now, the said Gurr, of the second part, agrees to furnish a sufficient amount of labor, and feed for said labor, for said farm, and to pay the same, to make and gather and house the same; said crops consisting of cotton, com, peas, etc., — said gathering and making to he done in a good manner, repair fences and other things necessary on said farm during said ye.ir, take care of stock, etc. Now, in consideration of said Gurr furnishing said labor and feeding and paying the same during the said year, to make and house the whole crop, and perform such other service as is usually done on a farm, the said Martin agrees to pay. said Gurr one-half, of the following crops made, gathered and housed by him (Gurr): cotton, corn, fodder, peas and potatoes; one-half of all the pigs raised by him the present year; stock, hogs, sows to remain in possession of said Martin, said Gurr to have no interest in them. All hogs fattened out of the com grown on the place before divided; the whole hogs and pigs to be fed out of joint corn from August 31st and thereafter. It is further agreed and understood that said Gurr is to deliver the whole of said cotton crop to said Martin at his store, or where he, the said Martin, may desire. It is further agreed and understood that the whole of said crops are to remain in the possession of said Martin until the whole advances made to said Gurr, or the labor on the said farm by him, the said Martin, is fully paid; said Martin reserves the fruit on said farm the present year. It is further agreed and understood that this contract is in full force from January 1st, 1884, to November 30th, 1884, at which date (Nov. 30, 1884,) the same expires,”</p> <p>The chancellor refused the injunction, and complainant excepted.</p>

Railroads. Contracts. Damages. Before Judge Harden. City Court of Savannah. July Term, 1884. McIntosh sued the Savannah, Florida and Western Railway Company for $861.95, on account of loss of a trunk. ‘The facts were that plaintiff purchased from the agent of the Galveston, Houston and Henderson Railroad, at Galveston, a through ticket to Savannah, having coupons for the various roads of the connecting line over which he had to pass.

Malicious Prosecution. Malicious Arrest. Slander. Pleadings. Justification. Yerdict. Evidence. Before Judge Fort. Macon Superior Court. May Term, 1884. Charles T. Yentress brought suit against James N. Rosser.

Garnishment. Attachment. Bonds. Appeal. Certiorari. Practice in Supreme Court. Before Judge Willis. Muscogee Superior Court. May Term, 1884. To the report contained in the decision, it is only necessary to add the following: The garnishments in this case were served by a constable, and the bond, with the entries of service thereon, was returned to the superior court, where the main case was pending, on January 24,1884.

<p>A response to a scire facias issuing upon a forfeited recognizance should plainly, fully and distinctly set forth the ground of defence, and should not deal in general conclusions of law. Therefore it was insufficient for the sureties on a criminal bond to set out, in answer to a scire facias, that the warrant under which their principal was arrested and upon which the recognizance was founded was illegal, in that it had no affidavit sufficient in law to support it; that the warrant described no offense punishable by the laws of the state, and that the bond contained no condition for the personal appearance of the principal at the superior court of Screven county, and hence there was no breach.</p> <p>(a.) The fact that an affidavit made as a foundation for a warrant for assault with intent to murder did not specify that the assault was made with a weapon likely to produce death did not render the warrant issued thereon invalid.</p> <p>(6.) Where, on a proceeding to forfeit a criminal recognizance and a response filed thereto by the sureties, the case was left to the presiding judge, by agreement, to be passed upon by an inspection of “the record,” and it appears that the affidavit, the warrant, the magistrate’s entry thereon and the bond were all before him ; the fact that the warrant failed to mention the person on whom the assault was made did not render it invalid, where it identified the affidavit on which it was issued, and the affidavit named such person.</p> <p>(c.) Semble, that it is not essential that a warrant for assault with intent to murder should name the person on whom the assault was committed, as stated in the affidavit.</p> <p>(d.) All the papers being before the court, and it appearing from the affidavit and warrant that the crime was charged to have been committed in Screven county; that the defendant waived a preliminary examination; that the magistrate entered this fact on the warrant, and ordered that, inasmuch as defendant had tendered certain sureties as bail on a bond conditioned for his appearance at the next term of the superior court of said Screven county to answer said charge, that he be discharged from further custody; and it further appearing from the face of the recognizance that it was executed in that county on the same date as the order, and was taken and attested by the same officer, the bond was not rendered invalid because it required the defendant to be and appear at the next term of the superior court to answer said charge, without stating specifically in what county.</p>

Corporations. Charters. Parties. Constitutional Law. Roads and Bridges. County Matters. Before Judge Esies. Towns Superior Court. March Term, 1884.

<p>Railroads. Damages. Negligence. Streets. Roads and Bridges. Municipal Corporations. Before Judge Roney. Richmond Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

<p>Drafts. Actions. Judgments. Contracts. Parties. Amendment. Before Judge Fort. Macon Superior Court, May Term, 1884.</p> <p>A fi.fa. in favor of Lewis & Minor against George V. Hunter was levied on certain land to which Harper, executor of Drumright, interposed a claim. On the trial, on motion, the court dismissed the levy, on the ground that the pleadings were insufficient to authorize the judgment • on which the fi. fa. was founded. These pleadings consisted of a declaration in complaint by Lewis & Minor against Hunter, on an instrument alleged to be a note, which was as follows:</p> <p>“ $450.00 Montezuma, Ga., February 19th, 1874.</p> <p>“ On the 15th October next, please pay to the order of myself four hundred and fifty dollars, for value received, as an advance on my present year’s crops, for the purpose of purchasing provisions and other necessary supplies to enable me to make said crops. In order to secure the said advance, I hereby give you a lien on my crops of said cotton and corn for the year 1874, and I agree to deliver to you, at your warehouse in Montezuma, Ga., at least enough of said cotton crop to pay this draft. And I further agree that the proceeds arising from the sales of all cotton of said crop shall be applied to the payment thereof until satisfied, without reference to date of maturity. In order to further secure said advance and the payment of all costs and counsel fees incurred in the premises, I hereby mortgage to you and your assigns my stock of all kinds on the plantation cultivated by me in Macon county, to-wit: And I hereby give you full and legal control of said crops and said mortgaged stock, waiving all right of homestead exemptions thereon, with power to transfer this lien. If not paid at maturity, to bear interest at the rate of one per cent from date thereof. Witness my hand and seal,</p> <p>G. V. Huntek, [h. s.j</p> <p>“ To Lewis & Minor, Montezuma, Ga.</p> <p>‘ ‘ Executed in presence of Robert G. Lewis.”</p> <p>(Indorsed on back), “For value received — ■ hereby transfer the within draft, lien and mortgage to — , their heirs and assigns.”</p> <p>No issuable defence being filed on oath, a judgment by default was taken and fi.fa. issued.</p> <p>To the dismissal of the levy plaintiffs excepted.</p>

<p>Jury and Jurors. Practice in Superior Court. Constitutional Law. Charters. Corporations. Before Judge Adams. Chatham Superior Court. June Term, 1884.</p> <p>To the report contained in the decision, it is only necessary to add that the Southern Express Company was incorporated, by order of the superior court of Richmond county, on July 5,1861, for a period of fourteen years, and that, on March 16,1875, application was made for a renewal of the charter, and after publication, an order of court was granted on May 14, 1875, renewing the charter. The confirmatory act of 1877 was passed on February 13 of that year.</p> <p>After conviction for embezzlement from the company, defendant moved for a new trial, one ground being the admission in evidence of this charter and renewal, and another, because the court did not require the panel of forty-eight jurors to be put upon the defendant after they were called over by the clerk. As to this ground, the presiding judge certified as follows :</p> <p>“When the forty-eight jurors were procured, the court stated to counsel that the panel was complete, and had them called. The court then directed the clerk to hand the counsel the list of the panel that was to try said cause, which the clerk did. The counsel took the list and made no objection. Thus the panel was put upon the prisoner. We do not understand that any particular ceremony or form of words is required. We followed the invariable practice as it has always obtained in this circuit. Ample opportunity was given counsel to challenge the array after it was there put upon him. No right of the defendant was in the slightest degree disregarded. He waived arraignment and pleaded not guilty.”</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Where a contract, signed only by the owners of land, agreed that at any time within six months they would take a specified price for their mineral interest, and upon receipt of such price would make a title to the party named in the contract as the party of the second part, and where such contract stated that the party of the second part bound himself to make such tests as were satisfactory to himself and to do such other things towards the perfection of the sale as might be necessary on his part, and that he would not demand any right outside of the necessary tests until the payment of the purchase money, the contract was not mutual and binding on all of the parties; a specific performance could not bo decreed against the proposed purchaser; and an injunction on his behalf to restrain the owners from selling the mineral interest was properly refused.</p>

<p>While a conviction cannot be had upon the uncorroborated evidence •. of an accomplice in the crime, without something else deposed by , other witnesses to connect the defendant with it, yet it is impracticable to lay down any rule as to the precise amount of evidence. . which is requisite to sustain the accomplice’s account identifying the defendant as one of the criminals, further than that there must be other evidence sufficient to satisfy the jury of the fact. In this case, the corroborating evidence was sufficient.</p>

Husband and Wife. Title. Contracts. Powers. Before Judge Simmons. Pulaski County. At Chambers. June 20, 1884. Fountain et al. filed their bill against Fleming, trustee, to recover certain property and to enjoin the trustee, who Was alleged to- be insolvent, from selling the same. The facts on which the case rested are set out in the decision. The chancellor granted the injunction, and defendants excepted.

<p>Criminal Law. Statement of Prisoner. Charge of Court. New Trial. Assault with Intent to Murder. Assault. Evidence. Yerdict. Before Judge Hammond. Fulton Superior Court. March Term, 1884.</p> <p>Samuel Hendricks was indicted for assault with intent to murder, committed on Miss Blanche Budden. The evidence for the state was, in brief, as follows: Hendricks was a married man, but had .been visiting Miss Budden; •and they agreed that when he should obtain a divorce, they ■would be married. Her father, learning that he was married, and that his habits were bad, objected to his coming to the house, and forbade his doing so. Her mother said :she would kill him if he came to the house. The daughter, however, met him clandestinely, and notes passed between them. Subsequently she told him that she did not •care to have anything further to do with him. On a certain Saturday, they were both at a picnic. Defendant went to her, caught her by the arm and said he wanted an explanation, but was persuaded by other men to leave. He said he would have an explanation on Monday. On that day he entered the shop of Mr. Budden, where the daughter was at work, went to her and put his arm around her neck, saying, “ Oh! Blanche!” and began cutting at her with a knife. ■ Her hair prevented a serious injury, and she was only scratched and slightly cut across the •cheek. Her father and another man in the shop ran up, and after a struggle, succeeded in breaking the knife, and then Budden ordered the defendant (o leave, which he •did, but said he had come there to kill her. Miss Budden testified that, when defendant came into the shop, he gave 'her some notes, which she tore up and did not show to her father or sister; that she never wrote him “that many letters in her life ” — referring to a bundle of letters in the hands of counsel.</p> <p>Defendant made a statement, which need not be detailed, but introduced no evidence.</p> <p>The jury found the defendant guilty. He moved for a new trial on numerous grounds, of which it is only necessary to set out the fourth, eighth and fifteenth, as follows:</p> <p>(4.) Because the court charged as follows: “ It is proper to call your attention to the fact that the evidence is delivered on oath; the prisoner’s statement is not; and you ought not to set aside the sworn testimony of witnesses without sufficient cause. You will look to the evidence and determine from that what the truth is, and then the prisoner’s statement, and then give to it such force as you think proper to give; and from the whole case, as thus presented, the law casts upon you the responsibility of determining what the truth is.”</p> <p>(8.) Because the court refused to charge that drunkenness of defendant at the time of the commission of the crime might be looked to by the jury in determining the. question of intention.</p> <p>(15.) Because the court ruled out the following evidence of Miss Budden, brought out upon cross-examination of defendant’s counsel:</p> <p>Question. “ Was it true that your life and defendant’s life were in danger?”</p> <p>Answer. “Yes, I suppose it was true.”</p> <p>Q. “Is it true that your mother threatened to put lead in his head if he came there ?”</p> <p>A. “Yes, if you want to know, mother threatened to kill him if he came to the house again.”</p> <p>Q. ‘ ‘Is it true that you told a lie about the note ?”</p> <p>A. “Yes, I did.”</p> <p>[The court added the following note: ‘ ‘In regard to the 15th ground, the truth, as I remember it, is this: Defendant’s counsel, in cross-examining the witness, Miss Budden, used a great many letters which he claimed were written by her to the defendant; and he would apparently read a passage from .one of those letters and ask if that was not true. A great many questions were asked in this manner, the state’s counsel objecting to it on the ground that extracts from the letters ought "not to he read in the hearing of the jury, unless the whole letter was read or was to be offered in evidence. I ruled that I would not restrict counsel in his method of examining the witness, but that, if the letters were not offered afterwards, I would hear the motion to rule out evidence of what they contained and thus indirectly put before the jury. Afterwards, when the defendant’s counsel announced that he would not offer any evidence, Ihe state’s counsel moved to rule out that portion of Miss Budden’s evidence that was thus app arently based on letters which had been partially read in the hearing of (he jury. 1 sustained the motion, and had the evidence read over, and selected, as well as I could, those portions of her testimony which came within the ruling made; and in that way, the evidence specified in the 15th ground of the motion was excluded.”]</p> <p>Tbe motion was overruled, and defendant excepted.</p>

Evidence. Homestead. Charge of Court. Presumptions. Payment. Yerdict. Before Judge Eve. City Court of Richmond County. October Term, 1883. James sued Printup, Brother & Pollard on an account for $383.00. Of this $216.35 was for services as a blacksmith in 1876 and 1877, and the balance for services as clerk from December, 1877, to April, 1878. Defendants pleaded the general issue and payment. The evidence was conflicting. The jury found for plaintiff $176.35.

Practice in Superior Court. Criminal Law. Principal and Surety. Bonds. Before Judge Willis. Taylor Superior Court. April Term, 1884. J. E. Lamb was tried before a magistrate and bound over for hiring laborers to be employed without the state without a license. He gave bond to appear “ at the next term of Taylor superior court,” to answer such indictment as the grand jury might find against him.

Debtor and Creditor. Promissory Notes. Payment. Contracts. Before Judge Fort. Macon Superior Court. May Term, 1884. W. W. Clark brought suit against William Minor for $7,000.00, alleging that he sold a plantation to defendant, and took a note payable in cotton for the purchase money; that defendant failed to pay, and that at the time payment was due, cotton of the grade contracted for was worth eleven cents per pound.

<p>Justice Courts. Charge of Court. Before Judge Mer-Shon. Pierce County. At Chambers. June 2b, 1884.</p> <p>Reported in the decision.</p>

Criminal Law. Practice in Supreme Court. Evidence. Larceny. Practice in Superior Court. Charge of Court. •Jury and Jurors. Before Judge Lawson. Greene Superior Court. March Term, 1884. Three Fishers and two Nolans were jointly indicted for 'breaking open a railroad car and stealing goods, etc., there¡from. John Fisher was tried separately. The evidence 'for the state showed, in brief, as follows: Depredations 'were being committed on the freight of the Georgia Railroad.

<p>Constitutional Law. Elections. Laws. Courts. Before Judge Stewart. Pike County. At Chambers. August 15, 1884.</p> <p>Reported in the decision.</p>

<p>1. The proper practice stated as to objecting to jurors for cause, when presented; as to putting them on tbeir voire dire, and upon the judge as trior; and as to the introduction of testimony to show disqualification.</p> <p>2. Where a person having money in a satchel went into a hanking house, and temporarily deposited it upon the counter, and while standing within about two feet of it, one of two persons called his attention and the other abstracted money from the satchel, the offense was larceny from the house, although the satchel was neither the property of the owners or occupiers of the building, nor was under their custody.</p>

<p>1. Where, in the particular trade of selling and buying bacon and pork sides, the words, “fully cured,” were used as descriptive of the classification of articles sold, in a contest in regard thereto, such words are to have the meaning attached to them by experts — that is, persons in the trade.</p> <p>2. There was no error in charging that, if the contract was that the meat had been salted over thirty-five days, and that delivered had been so, and was merchantable and fit for the purpose for which sold, then the plaintiff could not recover, the contract being according to plaintiff’s version, for fully cured meat, and the evidence uncontradicted being that meat salted thirty-fiVe days is, in the trade, fully cured.</p> <p>S. The court did not abuse his discretion in not granting a new trial on account of newly discovered evidence.</p>

Evidence. Criminal Law. Jury and Jurors. Practice in Supreme Court. Presumptions. Bes gestee. Newly Discovered Evidence. Before Judge Branham. Polk Superior Court. February Adjourned Term, 1884. In this case, the charge of the court and the decision sufficiently report the points made.

New Trial. Charge of Court. Practice in Supreme Court. Admission. Before Judge Dorsey. City Court of Atlanta. March Term, 1884. To the report contained in the decision, it is only necessary to add that the grounds of. the motion for new trial were as follows : (1) to (3.) Because the verdict was contrary to lawj evidence and the charge of the court.

<p>~ Principal and Agent. Letter of Credit., Waiver. Estoppel. Drafts." Contracts. Evidence. Books. Pleadings. Practice in Supreme Court. ‘ Before Judge Eve. City Court of Richmond County. November Term, 1883.</p> <p>Reported in the decision.</p>

<p>Promissory Notes. Negotiable Instruments. Presumptions. Consideration. Gaming. Usury. Contracts. Bankruptcy. Contracts. Debtor and Creditor. Before Judge' Port. Stewart Superior Court. April Term, 1884.</p> <p>Reported in tbe decision.</p>

Deeds. Escrows. Ejectment. Evidence. Before Judge Estes. Lumpkin Superior Court. April Term, 1884. James M. Robinson brought complaint for land against William Anderson. The abstract of title attached to the declaration is set out in the decision., Both parties produced chains of title under Thomas J. Payne. Plaintiff claimed under a bond for title from Payne to W. H. Robinson, dated in 1861, and a deed between the same parties dated May 24,1871.

Equity. Deeds. Estates. Charge of Court. Yerdict. Before Judge Simmons. Bibb Superior Court. April Term, 1884. Georgia E. Crockett brought .complaint against Earls-worth Crockett to recover $497.27 rents collected from, certain property in which she owned an interest. The property consisted of certain lots on McIntosh street, in Macon, Georgia, and a lot on Bass street in the same city.

<p>Actions. Homicide. Jurisdiction. Administrators and Executors. Before Judge Adams. Chatham Superior Court. March Term, 1884.</p> <p>Reported in the decision'</p>

<p>Practice in Superior Court. Amendment. Torts. Before Judge Adams. Chatham Superior Court. March Term, 1884.</p> <p>Reported in the decision.</p>

Physicians. Pleadings. Set-off. Recoupment. Torts. Contracts. Waiver. Evidence Witness. Before Judge Pottle. Madison Superior Court. March Term, 1884.

<p>False Imprisonment. Damages. Arrest. Before Judge Clark. City Court of Atlanta. December Term, 1883.</p> <p>Reported in the decision.</p>

<p>Officers. Tax. Bonds. Remedies. State. Executions. Before Judge Dorsey. Fulton Superior Court. March Term, 1884.</p> <p>Reported in the decision.</p>

<p>Where a plaintiff brought suit on a promissory note in his own name, and afterwards amended his declaration by inserting the name of a partnership for his use, and adding a count for the value of a sorghum mill for which the note was given, if such case was non-suited, he could renew it within six months thereafter for the value of the mill. He was the real party in the first case, and could renew it after the non-suit.</p>

Prescription. Charge of Court. Notice. Trusts and Trustees. Practice in Supreme Court. Before Judge Fain. Dade Superior Court. September Term, 1883. To the report contained in the decision, it is only necessary to add, that counsel for defendant requested the court to give each of the following requests in charge: “Adverse possession of land under written evidence of title for seven years gives title by prescription.

' Deeds. Title. Husband and Wife. Marriage Contracts. Construction. Words and Phrases. Wills. Before Judge Clarke. Randolph Superior Court. May Term, 1884. Jared B. McWilliams brought complaint against J. G. Sasser on two promissory notes. Defendant pleaded that they were given for the purchase of land, and that plaintiff did not have and could not make a good title thereto; and offered to rescind the trade.

Municipal Corporations. Education Schools, Constitutional Law. Before Judge Fain. Bartow Superior Court. July Term 1884.

<p>1. The verdict is supported by the evidence.</p> <p>2. The question of negligence was fairly submitted to the jury, and the rule on this subject has been too long settled and too uniformly applied to admit of further qualification or modification.</p> <p>3. The charges of the court excepted to in the fourth, fifth and sixth, grounds of the motion for new trial are in accordance with the law as declared in this case when it was formerly before this court (62 Ga., 685), and it is binding therein.</p> <p>4. A witness may testify to his age, without first requiring him to show from what source ho derived his information, and when and where he was born. The correctness of his statement may be tested on cross-examination by asking whence he derived his information and likewise the time and place of his birth; but on such subjects hearsay evidence is admissible from the necessity of the case.</p> <p>5. Where one was injured by an accident on a railroad, after having shown the nature and character of the injury received and the reduction of his wages growing out of infirmities consequent thereon, he could testify as to the extent to which his capacity to labor was diminished in consequence of the injury he had received.</p> <p>6. Taken in connection with other facts to which he deposed, it was not error to permit the plaintiff to testify that “ as the engineer slacked np for the switchman to get on the train, he seemed to • shut off his engine, and the car ran up on the engine, and he opened his engine right suddenly, I suppose.” The supposition related only to the sudden opening of the engine, and amounted to nothing more than an opinion that such was the case. And where the subject under investigation is a proper one to be illustrated by the opinions of experts, unskilled persons may give their opinions, provided they accompany them with the facts from which. such opinions are deduced.</p>

<p>Dabney & Company sold and delivered to Larey a stock o£ goods under the following bill of sale:</p> <p>“Dabney & Company agree to turn over to said Larey upon a conditional sale their stock of drugs and fixtures, as per invoice agreed upon by them, amounting to nine hundred and thirty dollars, said Larey agreeing to pay down cash three hundred dollars, and to give bankable notes for the balance, as follows (stating the amount of each note and the date when the deferred payments fell due). Said Larey agrees to meet each one of these notes as they become due, and should he fail to meet any one of them at maturity, said Dabney & Company shall have the right to enter and recover their interest in said stock of drugs at the time of such default, by going in possession of said stock by virtue of this conditional sale without process of law; this transaction being a sale of conditions; said Dabney & Company retaining an interest in said stock, and said Larey being in possession of the same, subject to within described conditions; said Dabney & Company agreeing to lift the mortgage held upon said stock by Judge Joel Branham and to protect Larey from any trouble from the same. Said Larey assumes the lease,” etc.:</p> <p>Held, that the sale and delivery of the goods under this contract vested a defeasible title in the purchaser, subject to be divested upon his failure to perform any of the stipulated conditions which, by the terms of the contract, he w'as bound to perform; and a judgment subsequently obtained against the vendors could not subject the property.</p> <p>(a.) It is only in cases where the title is expressly reserved by tne seller until the performance of some condition by the buyer that a third party subsequently acquiring a lien against the seller can enforce it upon the property thus sold; and this he cannot do, if he had notice of the transaction; for as between the parties, it is legal and valid.</p>

<p>Sales. Contracts. Debtor and Creditor. Vendor and Purchaser. Title Jens. Registration. Record. Equitable Pleadings. Before R. M. Hodge, Esq., Judge pro Jiao vice. Pulaski Superior Court. May Term, 1884. .</p> <p>Reported in the decision</p>

Railroads. Damages. Negligence. Evidence. Witness. Charge of Court. Before Judge Willis. Muscogee Superior Court. November Adjourned Term, 1883.

<p>Jury and Jurors. Practice in Superior Court. Waiver. Before Judge Hammond. DeKalb Superior Court. March Term, 1884.</p> <p>Reported in the decision.</p>

<p>Where an insolvent debtor made a voluntary conveyance to his wife and daughters, who conveyed to certain purchasers with notice, and upon the agreement that such purchasers would pay the debts of the husband and father, — if one of his creditors reduced his claim to judgment and levied on the land so conveyed, it was subject thereto.</p> <p>(a.) Such transactions between husband and wife and children should be closely scanned, and where the purchasers under the wife and daughters interposed a claim to such levy, it was incumbent on them to have shown the bonafides of the transaction.</p> <p>(6.) Recitals in the deed from the debtor to his wife and daughters, stating the consideration thereof to be a debt duo by him to them, were not evidence against a creditor, and it was incumbent on the claimants to have shown them to be true.</p>

Amendment. Evidence. Bes Adjudicata. Non-suit. Before Judge Carswell. Screven Superior Court. May-Term, 1884.

<p>Railroads. Common Carriers. Contracts. Live Stock. Before Judge Fort. Sumter Superior Court. April Adjourned Term. 1884</p> <p>Reported in the decision</p>

Arbitration and Award. Evidence. Deeds. Before Judge Pottle. Oglethorpe Super ior Court. April Term, 1884. George H. Lester, guardian of Jesse K. Baker, a minor, William R. Oallaway, executor of Jabez P. Smith, deceased, and Lula L. Bridges, former guardian of Jesse K. Baker, who had been discharged, agreed to submit their differences to arbitration.

<p>1. It has been held by a majority decision of this court in this case (6S Ga., 790) that, while a chancellor at chambers, on. ful 1 notice to all parties, may order a salo of tru-st property, he has no power to grant authority to a trustee to mortgage a trust estate, and a mortgage so given will not bind the cestuis que trust. Although the present bench disapprove of the majority decision stated, it is binding in this case.</p> <p>2. Where a debt was created in 1866, and in 1884 it was sought by cross-bill to subject a trust estate, on the ground that the debt was created for the benefit thereof, the demand was stale and barred by the statute of limitations.</p>

<p>1. A summons of garnishment was sued out, directed “ To D. F. Wilcox, agent for Merchants’Insurance Company, of Newark, Insurance Company of North America, Western Assurance Company, Crescent Insurance Company,” in which itwa3 stated that, “ You are hereby required personally to appear at the superior court . . to answer upon' oath . . what said insurance companies named above are indebted to the said (defendant), Or what property or effects you have in your hands belonging to the defendant,” etc.: /</p> <p>Held, that the summons of garnishment was sufficient, although it embraced several foreign insurance companies, being directed to one personytyho is agent for them all. It is not joint as to these companies', but several, and they are not sued jointly because embraced ii>/ the same process. (Blandford, J.).</p> <p>2. After siimmons of garnishment has been issued and served, and the garnishee has appeared and filed an answer, admitting indebtness to the defendant, and tendered the money in court in discharge of its liability under the garnishment, it is too late to tender an issue and traverse as to the legality of the summons of 'garnishment or return of the sheriff. Appearance and pleading waives ail objection to the process and return of the officer.</p>

<p>Contracts. Debtor and Creditor. Statute of Frauds. Guaranty. Justice Courts. Practice in Superior Court. Certiorari. Before Judge Clarke. Terrell Superior Court. May Term, 1884.</p> <p>L. S. Baldwin brought suit against Charles Hiers, and John A. Hiers as guarantor, in a justice’s court, on March 22,1S81. The account attached to the summons was in the name of Charles Hiers. The justice entered judgment for the plaintiff, an appeal was entered, the jury found for the plaintiff, and a certiorari was sued out by the defendant, John A. Hiers. The evidence for the plaintiff on the trial in the justice’s court was that Charles Hiers was the minor son of John A. Hiers; that the latter told plaintiff to' let Charles and another son have goods and charge them to the one who purchased them; to let them have goods, and he (John A.) would see that plaintiff got the money for them ; and the goods were furnished accordingly.</p> <p>Defendant, John A., denied any such agreement, or that he owed the account, and testified that the son worked for himself during the year. The son denied the correctness of the account, and asserted that he purchased most of the goods charged, but that some of the account was really for whiskey, though charged under other names.</p> <p>The court sustained the certiorari and ordered a new trial. Plaintiff excepted.</p>

<p>Year’s Support. Administrators and Executors. ES' tales. Before Judge Carswell. Jefferson Superior Court. May Term, 1884.</p> <p>McBride, administrator, filed his bill for injunction, interpleader and direction. Among the claims against the estate was a physician’s bill for services rendered during the last sickness of the deceased, and also a claim for year’s support by his widow and minor children. The administrator, believing the latter to be the superior claim, paid it, and this was the real point of contest. The case was submitted to the presiding judge without a jury. He held that the administrator acted properly in paying the .year?s support before the physician’s bill, and to this judgment exception was taken.</p>

Railroads. Damages. Negligence. Master and Servant. Before Judge Simmons Bibb Superior Court. October Term, 1883. To the report contained in the decision, it is omy necessary to add that the deceased was alleged to have been eighteen years and four months old at the time of his death ; and that the jury found for the plaintiff $500.00. Defendant moved for a new trial, which was refused, and it excepted.

<p>Municipal Corporations. Damages. Negligence. Actions. Before Judge Dorsey. City Court of Atlanta. December Term, 1883.</p> <p>Reported in the decision.</p>

<p>1. The indictment in this case for harboring seamen in the city of Savannah was sufficient, being such that the nature of the offense charged cannot be easily understood.</p> <p>2. Whether §§4964, 4965 of the Code, providing for taking testimony in writing in certain criminal cases, in which a shipmaster, supercargo, seaman, etc., may be a witness, are not unconstitutional. Queers?</p> <p>3. The notice of the taking of such testimony required by those sections must be personal. The leaving of a written notice at the residence of a party is not sufficient, and the evidence taken thereunder is not admissible.</p>

<p>[Jackson, C. J., being disqualified, Judge Ciarte, of the Pataula circuit, was designated to preside in his stead.]</p> <p>]. Where one who made a deed to land continued to manage and control the property, creating tenancy and collecting rents, it was admissible to show that he stated that he was collecting for his vendee, that the property belonged to the latter, and referred persons to him for the purpose of effecting leases. Such statements tended to show that the acts so done were, in effect, those of the vendee.</p> <p>(a.) If the person making such statements never had legal title himself, but was a continuing trustee for children, his admissions, while actually engaged in handling the subject-matter of the trust, in such acts as collecting the rents, would be good against the cestuis que trust. They were part of the res gestx.</p> <p>2. The weight of the evidence is that the possession of the tenant on the land was the possession of the vendee thereof, and so far as the verdict found this fact, it was not contrary to law or the evidence.</p> <p>3. If, at the time a conveyance was made, there was a tenant on the land, placed there by the grantor, if that tenant continued to reside on the land, treating and dealing with the grantor, but the latter was acting for his grantee, then the tenant became the tenant of the grantee, and his possession was that of the grantee.</p> <p>4. By such possession under written evidence of title for seven years, the title of the grantee, though defective originally, would become perfect by prescription.</p> <p>5. If the grantee, through such a tenant, was in possession of only a part of the tract, the law would construe the possession to extend to the entire tract covered by the deed.</p> <p>6. If the grantee had such adverse possession of the land for seven years, upon dispossession he would be entitled to recover it; and there was no error in so charging, unless the presiding judge erred in assuming that the defendants were in a position to be affected by the statutory bar.</p> <p>*!. The abstract principles laid down in the 11th, 12th, 13th, 14th, ■ 16th and 21st grounds of the motion for new trial were the familiar rules of law as to what constitutes possession, its continuousness, its adverseness, and what is color of title; and those charges were correct, unless it was error to assume that, in this case, the only question of fact was whether the plaintiff had had the seven years’ possession.</p> <p>8. Timo runs against the equitable estate of minors, if the legal estate resides in one competent to assert their rights.</p> <p>9. Children provided for in a marriage settlernent, wnere mere are not words to indicate affirmatively a different import, are presumed to be the children of the marriage which gives occasion to the settlement. In the present case, there are no contrary words, or, if any, so weak as to be easily overcome; and the children intended to take in remainder were such as'might be the offspring of that marriage. Children who might be the offspring of a second marriage of the wife, after the death of her then husband, were not ■ contemplated.</p> <p>(a.) Upon the expiration of such marriage settlement by the death of tho husband without children having been born to them, the entire beneficial interest would have reverted to his estate, were it not for the peculiarities of this agreement. Under it, when the marriage' settlement became functus officio, the legal title in fee simple and the entire equitable interest reverted to the wife', and, upon her re-marriage prior to 1866, the marital rights of her husband attached.</p> <p>10. The admission of illegal evidence, in support of what is conclusively proved by evidence which the objecting party has already introduced, is no ground for a new trial.</p> <p>(a.) Where the wife and her second husband filed a bill to compel tho transfer of stock which had been purchased with funds falling • under tho marriage settlement, and which had been sold by them, and the trustee under the settlement was a party, he represented the children, who claim under him, and the record construing the settlement was admissible in evidence to bind them.</p> <p><&.) After the re-marriage of the wife, a conveyance by her second husband, whose marital rights had attached, carried the title; and a charge to that effect was not error.</p> <p>11. In the case of Wetter, trustee,'vs. Walker, 62 Qa:, 142, it was held that under the second item of the will of Margaret Telfair, ihe present defendants became entitled to the entire beneficial remainder after their mother’s death.</p> <p>(a.) The statute of uses (27 Henry VIII, ch. 10) is in force in Georgia, but this is true only in a qualified sense.</p> <p>(b.) Executed and executory trusts at common law and under the Code defined and discussed.</p> <p>(c.) To ascertain the meaning of contracts, wills, etc., they should be construed or interpreted by the Law in force at the timo of their making; but whether or not a trust is executed and tho legal title passes to the beneficiary does not depend upon tho law of force when the trust was created, hut depends upon the law of force at the time when tho trust is claimed to be terminated.</p> <p>(d.) When tho minor beneficiary of such a trust becomes of age, the legal title vests in him.</p> <p>(e.) The legal title <o trust property for the benefit of minors being in a trustee for them, time would run against the eestuis que trust during possession adverse to him.</p> <p>12. Where one, who held the title to realty as trustee for certain minors, made a deed thereto as an individual, this did-not estop him as trustee from bringing suit against the purchaser, and prescription was not thereby prevented from running in favor of the purchaser, if in possession.</p> <p>13. Where one, holding land as a trustee, made a deed thereto individually, in which tho land was described as “ formerly owned by Barak and William Gibbons,” and, on the same day, made, with the grantee in tho deed, a written agreement in which the promises were described as ‘‘now owned by mo, and formerly belonging to the family of my deceased wife,” and where the grants, deed and wills, by which the title is traced through the Gibbonses and through the family of the grantor’s wife, were on record at the time the deed was made by him, this did not amount to actual notice of tho trust to tho purchaser. A charge that constructive notice would prevent the purchaser from getting title by his deed, but would not defeat prescription, and that notice to affect that result must he such actual notice as to make it a moral fraud in the purchaser to buy and set up title, contained no error as against the defendants.</p> <p>(a.) If there were any evidence of actual notice, a charge that there was none would fcavo been error; but where there is no such evidence, such a charge will not require a new trial.</p> <p>(ft.) Tho court below was authorized to make the assumption that the only question of fact in the case was, whether plaintiffs had bad seven years’ continnons, adverse possession before they were ousted. The charge on this point was right; the verdict follows it, and was sustained by the evidence,</p>

<p>Where a note is given in the name of a firm by one of the members, after dissolution, to one who extends credit to the firm and who has had no notice of such dissolution, and where no notice of any kind has been given, such note binds the firm, notwithstanding the dissolution.</p> <p>(a ) The notice which a creditor must have is actual. The world would be bound by such notice as a publication in a public gazette.</p> <p>(6.) The retirement of a dormant partner must be made known to all who had knowledge of his connection with the firm.</p> <p>(c.) The verdict was demanded by the evidence, and the grant of a •new trial was error.</p>

Homestead. Debtor and Creditor. Before Judge Simmons. Houston Superior Court. April Term, 1884. A fi-fa. in favor of William Kupferman against Joseph Buckholts was levied on one mule, 2,000 pounds of fodder, 200 bushels of corn, 400 bushels of cotton seed and one bale of cotton.

<p>Debtor and Creditor. Vendor and Purchaser. Husband and Wife. Married Women. Promissory Notes. Before Judge Simmons. Bibb Superior - Court. April Term, 1884'</p> <p>Reported in the decision.</p>

<p>It is essential to the validity of a marriage in this state that the parties should bo of sound mind; and marriages of persons unable to contract are void. Where, therefore, a claim or defense depends upon the question whether a person was of sound or unsound mind at the timo of the marriage, it is not necessary that there should have been a decree of nullification or divorce in the lifetime of such person. The question may be made and decided in a proceeding to obtain year’s support by his widow after his death; and an objection to t'h.e granting o£ such year’s support, on the ground that the deceased was of unsound mind and incapable of contracting marriage before the pretended marriage, at the time thereof, and until bis death, arid .that the marriage was, therefore, null and void, was not demurrable.</p>

<p>[Jackson, C. J., did not preside, on account ol providential canse.]</p> <p>1. The verdict is supported, if not required, by the evidence.</p> <p>2. The presiding judge has a discretion in ordering the business of his court and determining whether it is proper to postpone a case or not; and it is only in instances o£ flagrant abuse in the exercise of such discretion that this court will interfere.</p> <p>(a.) Where one of counsel for plaintiff moved for a postponement of the case until the afternoon train, on which he expected his client, should arrive, on the ground that he had been absent on professional business, having understood that another judge would preside during the first week of court for the trial of cases in 'which the resident judge was disqualified; that he did not return until Saturday evening, and then learning that the judge of the circuit would preside, immediately telegraphed his client, and received an answer that she would arrive on the train that evenning, there was no error in refusing' to postpone the case, where the presiding judge certifies that it was called at the regular term of court and passed over to the adjourned term; that another attorney, who appeared as leading counsel, and who brought the suit and signed the declaration, knew of the facts, had applied for leave of absence and had been refused, and had asked that the case be set for a day late in the week, which had also been refused, without the consent of adverse counsel, and that such attorney had ample time to procure the attendance of the plaintiff.</p> <p>3. Whether a case will be re-opened after the close of the testimony and the commencement of the argument, is a matter of discretion of the court. No party can claim it as a matter of right, and the indulgence should be sparingly and cautiously granted by the judge. Therefore, where the testimony of a plaintiff had been taken by interrogatories, which had been for some time in court, and in the hands of her counsel, and-no attempt had been made to obtain further testimony from her, there was no error in refusing to re-open the case after the evidence had been closed, and all the arguments, except the concluding one, made, in order to allow the plaintiff to testify to facts which would, in part at least, have made a case different from the one on trial.</p> <p>4. The refusals to charge, and the charges excepted to, if erroneous at all, did not injure the plaintiff.</p> <p>5. The defendant’s evidence objected to should have been admitted. It went to sustain her title, and was pertinent to the issue. It was shown to be genuine by one or two parties to the transaction.</p>

<p>1. The Code, §3836, dispenses with proof of the execution of deeds, when drawn by notice from the other side. There was no error in so ruling, and admitting the deeds over objections to the proof of execution.</p> <p>2. There need not be a demise laid on each deed before admitted in evidence.</p> <p>3. There must be written color of title to entitle a party to prescribe for land and make his prescription of seven years avail. Therefore his prescription only runs from the date of his written color. Code, §2683.</p> <p>4. The better practice is to let the jury retire, and not to direct a verdict ; but if the case be perfectly clear on facts, the plaintiff in error is not hurt, and the case will not be sent back, because it could not change the verdict.</p> <p>(Head-notes by tbe court.)</p>

<p>In a suit by a wife for the homicide of her husband, contributory negligence was urged as one ground of defence. The evidence showed that the deceased was twenty-six years of age, and was making a little over $100.00 per month. The jury found for the plaintiff $6,000.00. The presiding judge granted a new trial, and this court declined to interfere with his discretion. On a second trial, the evidence taken on the former trial was read to the jury, and they found for the plaintiff the same amount as in the first verdict. On motion, the presiding judge granted a second new trial, on the ground that the verdict was excessive:</p> <p>Held, that this was error. Questions of contributory negligence are matters for the jury, and after two verdicts for the same amount and based on the same facts, the judge should not have interfered with the finding, there being enough evidence to justify it, and no error of law being complained of in the rulings of the court on the trial.</p>

<p>1. As a general rule, there is no necessity for a defendant in an execution, who claims to have paid or settled it, to resort to a court of equity to enjoin a levy made after such settlement or payment; but he may set up such defence by affidavit of illegality. Nor does ihe fact that the execution was in favor of a guardian for an insane person, and that the payment was made after a judgment was awarded, revoking the letters of guardianship and restoring the ward to his rights, make it necessary to go into equity. Code, §§3664., 3665, 1860.</p> <p>(a..) An affidavit of illegality lies to an execution issuing from a decree in chancery. Code, §4215.</p> <p>2. Where a defendant in execution filed an affidavit of illegality, but subsequently abandoned and voluntarily withdrew it, and an order was taken reciting that fact and ordering the execution to proceed, and no additional facts appear which would entitle the defendant to a second affidavit of illegality, a resort cannot be had to equity merely to avoid the legal requirements in this respect. Rule 31 (Code, p. 13-19) and citations.</p>

<p>The bill in this case is meagre and deficient in its allegations, and no reason is shown why a court of law has not jurisdiction, or why the remedy at law is not as complete and adequate as in equity.</p>

<p>1. On an indictment for burglary, it appeared that the owner of a store left the defendant and two other persons lying on the piazza thereof w'hen he went home ; that he tried to get them to go to their dinner, but they declined; that, on his return an hour or two later, he found the store broken open and goods stolen; that he caused the three to be followed, and found them that night, seven or eight miles away, with the stolen goods in their possession, the defendant having some of the stolen snuff:</p> <p>Held, that this was sufficient to authorize a conviction of burglary.</p> <p>2. The facts that the three were there together, that they would not leave, that they were followed and the goods found on them, make such a case of conspiracy as to authorize a charge that if one breaks in and another stands by and helps and receives the goods, all are guilty.</p> <p>3. The conspiracy being established, the sayings of either conspirator are admissible.</p> <p>4. There was no error in allowing the solicitor general, in order to impeach a witness who had been on trial for the same offense, to ask him whether he had not on the former trial made a statement inconsistent with what he swore before the jury on this trial. The statement need not be read to the witness in order to put him on notice; it is sufficient to repeat it to him and question him concerning it.</p> <p>5. It is within the court’s discretion to open the case and allow further evidence after the testimony has been closed.</p> <p>6. A ground of a motion for new trial that the court refused to let the defendant prove what explanation he gave of his possession of stolen property, when found in his possession, is too general. It should appear what was the explanation sought to be proved, in order to show that the defendant was hurt by its exclusion.</p>

<p>[Jackson, C. J., not presiding, on account ot providential cause.]</p> <p>On a bill to subject a trust estate for mill machinery sold to the trustee for the use and benefit of the trust estate, it was incumbent on the complainants to prove the existence of a trust estate, of what it consisted, and the specific facts which rendered it liable for the debt. Where the trust deed was not set out in the bill or annexed thereto, and no evidence was introduced showing the trust, its nature or character, or what power the trustee had to make the purchase, or how or in what manner the trust estate was liable, after a verdict for the complainants, a new trial should have been granted. 56 Ga., 640.</p>

<p>A defendant, indicted for carrying concealed weapons, moved for a continuance, and made a showing, to the effect that he had subpoenaed one Mrs. Hale; that she was not absent by his consent or procurement; that she lived in the county, was at home sick, and unable to attend court; that he expected to procure her at-: tendance at the next term of court; that the showing was not made for delay; and that he could prove by her that she was present at the time he was charged in the indiciment with carrying the pistol concealed; that it was not concealed, but was in the little watch-pocket on the outside of his coat, and that the handle and a portion of the barrel were fully exposed to view, when he dropped it and put it back in his pocket at the table. There was no counter-showing:</p> <p>.Held, that the continuance should have been granted, and its refusal was error. Code,' §§3522, 4647.</p> <p>da.) From the certificate of the presiding judge to the motion lor new trial, it appears that he acted under a misapprehension of the facts when he refused the motion</p> <p>■(6.) The testimony was conflicting and quite evenly balanced, and it is impossible to say what influence the evidence of the absent witness might have had.</p> <p>•Jackson, C. J., concurred specially, on the ground that the certificate of the presiding judge showed thathe had misunderstood the facts, and that this was not the ordinary case of the exercise of discretion.</p>

<p>It is within the power of all courts of general jurisdiction to complete and amend their records, so as to make them speak the truth. Therefore, where an administrator applied for leave to resign, and on an appeal from the court of ordinary, the jury found in his favor, but no judgment was entered on the verdict until after his death, the judgment could then be entered nunc pro time on motion of his administrator. Code, §206; 18 Oa., 287; 1 Kelly, 95; 10 Qa., 187; 58 Id., 365; 54 Id., 541; 2 Tidd’s Prac., 932.</p> <p>(a.) The legal effect of the judgment when entered is not now before the court.</p>

<p>'This case is controlled by the decision in 70 Ga., 752, where it was held that if a defendant was tried and acquitted under an indictment charging him with larceny from the house, and alleging the ownership of the house and of the goods stolen to be in one person, and was subsequently arraigned under another indictment for larceny from the house, alleging a different ownership of the house and of the goods stolen, and a different day on which the offense was committed, a plea of orntrefois acquit, setting out fully the first indictment and the proceedings had thereunder, and averring that the transactions embraced in both indictments were one and the same, was good, and should not have been stricken on demurrer.</p>

<p>When this case was before the Supreme Court before (72 Ga., 257), it was held that the court below erred in discharging the rule against the sheriff; that if the illegality received by the sheriff was based on his wrongful conduct, it could not protect him; or, if he colluded with the defendant, he was liable to the extent that such collusion hurt the plaintiff; and it was directed that the case be heard de novo, with liberty to amend the answer and traverse the same, in order to ascertain the facts. On the return of the case to the court below, the sheriff amended his answer, alleging that one ground of the affidavit of illegality received by him was that the plaintiff was not entitled, by judgment or otherwise, to an execution against the defendant, and denying all collusion. No traverse was filed to this answer:</p> <p>Held, that it was error to make the rule absolute. If the affidavit was received by the sheriff in good faith, and was in no wise connected with his default, and there was no collusion between the sheriff and defendant in execution, the rule should have been discharged and not made absolute; but these issues should have been submitted to the jury.</p> <p>(a.) The ground of illegality, that there was no judgment authorizing the execution in favor of the plaintiff, would authorize the sheriff to receive it, if he did so in good faith. This was easily determined by an inspection of the record; and if the sheriff, in collusion with defendant, knowing that this ground was wholly untenable, in order to cover up and protect himself on account of some neglected duty in not levying or properly advertising the property levied on, received the affidavit of illegality from the defendant, then he would be liable to plaintiff in execution to the same extent as if no illegality had been made or tendered to him. But this issue has not been made or tried by the court below.</p>

<p>It is not the duty of a coroner to bury any pauper bodies, except those on which an inquest has been held, and the limit of $1,500 for fees for holding inquests and burying dead bodies, imposed by §3701 of the Code, applies to cases in which it is the duty of the coroner to hold an inquest and bury the dead. But where a number of pauper bodies were found, and the coroner began to hold inquests, but discovering that the deaths were clearly the result of a storm, and that the cases were not proper subjects for an inquest, desisted, made no charge for the inquests held, and not officially but as an indvidual, caused the dead to be buried decently, he was en-: titled to be reimbursed by the county. Code, §766.</p> <p>(a.) Acts providing for costs and salaries are to be strictly construed, and neither can be increased by construction and in any indirect manner beyond the amounts specified by law, but the acts charged for in this case did not pertain to the office of coroner, nor were charged for as costs.</p>

<p>[Jackson, C. J., not presiding, on account of providential cause.]</p> <p>A county court has no jurisdiction to try and determine an issue made upon the foreclosure of a chattel mortgage and a counter-affidavit filed thereto, where the amount involved is less than fifty dollars. In such cases, the justice’s court of the district of the defendant’s residence has jurisdiction. Where the principal sum secured does not exceed one hundred dollars, but is more than fifty dollars, the two courts have concurrent jurisdiction. Code, §§5156, 282, 3974 (a), (b).</p>

<p>In an action of ejectment, where the plaintiff claimed title under one who had a deed from the defendant, but who was dead at the time of the trial, the defendant was incompetent to show that such deed was not delivered to the deceased. Code, §3854, sub-section 1; 71 Oa., 168, Elsinger vs. Beytagh (present term).</p>

<p>[Jackson, C J., did not preside, on account of providential cause.]</p> <p>Where a draft was drawn and endorsed by the drawer and placed in the hands of the payee, who held it but never accepted it, it was, in legal effect, a promissory note, and the payee could bring suit on it as such against the drawer. 70 Oa., 715.</p>

<p>[Jackson, C. J., not presiding, on account of providential cause.]</p> <p>There was no abuse of discretion in granting a first new trial in thi& case.</p>

<p>A bill for specific performance must be brought in some county in which one or more of the defendants may reside, if they are residents of the state. Where it appeared that such a bill was brought in a county in which none of the defendants resided, though all of them were residents of the state, it was properly dismissed for want of jurisdiction.</p>

<p>[Jackson, C. J., not presiding, from providential cause.]</p> <p>1. Where an indictment for larceny after trust followed the statute, and was so full and plain as to be fully understood by the defendant and the jury who tried the case, it was sufficient, and a demurrer thereto was properly overruled.</p> <p>2. Where two justices preside in this court, and they differ in opinion as to whether the evidence sustains the verdict, the judgment will he affirmed.</p>

<p>1. There was sufficient evidence to sustain the verdict, and the pre-: siding judge did not abuse his discretion in refusing a hew irial, on the ground that the verdict Was without evidence to support it.</p> <p>2. Whether or not the charge excepted to was incorrect, it is unnecessary to decide. If it was, it was fully cured by the entire charge of the court, in which he repeatedly told the jury that if the plaintiff, an injured employé of a railroad, was at all at fault, he could not recover.</p>

<p>1. The facts that more than two persons, with common intent to force another to divide fish, caught by all, in a certain way, ran him off into his yard, pursuing him with brick-bats or rocks tumultuously to his home, make a riot. Code, §4514.</p> <p>2. Where the court asked the defendants in a criminal case if they wished counsel, offering to furnish such counsel, which they declined, and none was appointed, there was no violation of the constitutional right to have the benefit of counsel and to defend in person or by counsel, or both. Code, §§4996, 4997; par. 4, 5, sec. 1, art. 1, const, of 1877.</p>