Volume 74 — Georgia Reports

<p>1. Where an affidavit to obtain an attachment against the firm o£ D. & H. set out the names of the persons composing the defendants’ firm, and stated that the said D. & H. “ conceal themselves,” it was not demurrable, on the ground that it did not allege that the individual members composing the firm concealed .themselves.</p> <p>2. The statute allows an agent or attorney to sue out an attachment, and consequently authorizes him to do whatever is necessary to - perfect the process, including the execution of the bond required to accomplish this.</p> <p>(a.) A declaration upon an account fqr the amount specified in an. attachment, which alleged that the plaintiffs in the declaration, were plaintiffs .in attachment then pending in the superior court, and. that the attachment had been levied on a lot of groceries as the property of defendants, fully described in the sheriff’s levy on the attachment, which was then in the clerk’s office of the superior court of the county, and which prayed judgment against the property attached, and also a general judgment, sufficiently identified the attachment upon which it was based.</p> <p>(6.) A plaintiff in attachment has the right to amend the attachment, declaration or bond, as in other cases at common law.</p> <p>3. Even if the levy was informal, because not sufficiently specific, it could be put in form by allowing the officer making it to amend it, and authority, is given to the court before which the attachment is returned to order the amendment.</p> <p>(a.) Semble, that an entry of the levy of an attachment in these words, “ I have this day levied the within attachment on all the goods in the store of Day & Higgs, as the property of Day & Higgs, at twenty minutes after nine o’clock a. m., this 17th day of March, 1882,” was sufficient.</p>

Garnishment. Promissory Notes. Collateral Security. Vendor and Purchaser. Tender. Interest. Principal and Surety. Before Judge Simmons. Houston Superior Court. April Term, 1884. To the report contained in the-decision, it is only neces-' sary to add that the note sued on was payable to Cicero. Johnson, or bearer, and was signed by T. J. Long and 0.

<p>1. Attorneys who were employed to resist the liens claimed by mechanics and contractors on real estate, amounting to fivq or six hundred dollars, and who succeeded in reducing the recovery to about sixty dollars, had a lien for their fees upon such property as against the owner who employed them. The reduction of the claims against the property was equivalent to a recovery to that extent.</p> <p>2. Property recovered by attorneys remains subject to their lien for ■fees, unless transferred to bona fide purchasers without notice. Where, pending the litigation in regard to the lien, the defendant sold the property to pay a debt, and in the contract with his vendee the liens were recited, and it was agreed “that a credit shall be entered in- his (defendant’s) favor on account of his indebtedness for as much of said sum of five thousand dollars as shall remain after fully satisfying such of said claims as shall be ascertained to be legally chargeable as liens upon said property,” the purchasers were put upon notice, and were not bona fide purchasers without notice, so as to defeat the liens of the attorneys of the defendant.</p> <p>(a.) If the earlier decisions of this court seem to militate against this view, they were made prior to the act of 1873 (Code, §1989), and are not now applicable.</p>

<p>Since the abolition of slavery, it is not necessary for an indictment, charging a white man and colored woman with living in a state of adultery or fornication, to set forth the race of each.</p> <p>(a.) The distinction between offenders of different races, as set forth in sections 4534, 4572 of the Code, is obsolete.</p>

Laws. Criminal Law. Kidnapping. Indictment. Evidence. Practice in Superior Court. Before Judge Hammond. DeKalb Superior Court. March Term, 1884. Dowda was indicted for kidnapping. The body of the indictment was as follows : “Said Dowda .... did maliciously and fraudulently lead, take, carry away, decoy, entice away one Sarah Frances Ragsdale, she being a child under eighteen years of age, from her parents, J. 0.

<p>The property of .a railroad company in this state, used in carrying on its usual and ordinary business, is not subject to be taxed by municipal corporations or to be sold for non-payment of taxes so laid.</p>

<p>Criminal Law. Evidence. Forgery. Before Judge Stewart. Fulton Superior Court. April Term, 1884.</p> <p>Morel was indicted for forgery. The indictment alleged that he falsely and fraudulently made and forged, and was concerned in “ making and forging a certain order, draft and acceptance for money.” Then it set out a draft at thirty days, drawn by Traynham & Ray on Johnson D. Campbell for $302.66, and alleged that it was endorsed by Johnson D. Campbell and Traynham Ray, “said endorsements being, falsely and fraudulently forged.” On. the trial, a draft was offered in evidence similar to the ■ above, except that the name of Campbell was written. across the face of the draft, instead of being endorsed on it. This 'was admitted in evidence' over objection. After verdict of guilty, defendant excepted.</p>

<p>1. Service of a bill of exceptions by the plaintiff in error or his attor. ney, or by any other person, if properly shown by affidavit, is valid.</p> <p>.2. While state courts can exercise no jurisdiction in cases peculiarly cognizable in admiralty, yet the statute of the United States which confers upon the district courts authority to hear and determine “all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it, and of all seizures on land and on-waters not within the admiralty and maritime jurisdiction; and such jurisdiction is declared to be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit court,” does not preclude a suitor from proceeding by attachment in a state court for an injury done to a dredge, although the remedy by attachment did not exist at common law, but has been conferred by statute. The intention of the statute was to confer exclusive admiralty and maritime jurisdiction upon the district courts, at the same time leaving to the suitor his option of seeking redress at common law, when it could be so obtained.</p> <p>3. IVhere, in an affidavit to obtain an attachment against a vessel for damages to a dredge resulting from a tort, it was alleged that the defendant named was the master and part owner of the vessel, and the declaration alleged that the other owners were unknown, this was sufficient to sustain the attachment.</p> <p>4. Part owners of a ship are tenants in common, not joint tenants or co-partners; and, therefore, the defendant named in the affidavit had an interest in the property on which an attachment might be levied.</p> <p>5. The remaining ground of demurrer presents no specific defect in the proceedings in which it is made, and is altogether too vague and general to require the judgment of this court on it.</p> <p>(a.) The defendanthaving replevied the barque attached, by executing a bond with security, conditioned to pay the amount of the judgment recovered by the plaintiff, and this having been duly returned into court-with the attachment, the property attached was released from the lien of the attachment, the attachment itself was dissolved, and thereafter the action progressed as an ordinary suit at common law.</p> <p>(6.) The declaration contained every necessary allegation to keep it in court. The attachment, so far as the purpose of that suit was concerned, was at an end, and the judgment dismissing it was unnecessary; but the judgment dismissing the declaration founded on it was error.</p> <p>(c.) Although the attachment may have been irregular or erroneous, it was not void. Had it been so, the defendant might have moved to dismiss it, notwithstanding the property levied on had been replevied.</p>

Criminal Law. Murder. Charge of Court. Practice in Superior Court. Practice in Supreme Court. Sentence. Before Judge Brown. Cherokee Superior Court. February Term, 1884. Jerry Marshall was indicted for the murder of James L>. Cheney, a negro child between two and three years of age.

<p>Administrators and Executors. Legacies. Title. Before Judge Fort. Stewart Superior Court. April Term, 1884.</p> <p>Reported in the decision;</p>

<p>1. Where a bill of exceptions refers to amotion for new trial and the grounds thereof as being in the transcript of the record, but no such motion appears there, and without it the case cannot be intelligently ruled, if no suggestion of a diminution of the record he made or time he asked to perfect it, the writ of error will be dismissed.</p> <p>2. A debt created prior to the adoption of the constitution of 1868, and the provision for the homestead thereunder, was not affected thereby.</p> <p>(a.) The transaction in this case was not a novation, but a mere renewal of the old note.</p> <p>3. Section 2028 of ihe Code has no application to a debt created prior to the adoption of the constitution of 1868, which could be levied on a homestead set apart under that constitution without regard to the classes of debts for which it was liable thereunder. Hence an affirmance would result if the case were decided on its merits.</p>

<p>Equity. Practice in Superior Court. Decrees. Judgments. Statute of Limitations. Parties. Attorney and Client. Homestead. Before Judge Carswell. Jefferson Superior Court. May Term, 1884.</p> <p>On a bill filed by Farmer, as administrator of Hannah, deceased, against Owens et al., in respect to certain land, which Owens had contracted to buy,- and for an account, etc., the following decree was rendered:</p> <p>“We, the jury, find and decree that execution issue in favor of Henry J. Farmer, administrator of the estate of James F. Hannah, against Enoch H. Owens, for the purchase money of the land setforth in complainant’s bill; to-wit, the sum of twenty-four hundred and ninety-one dollars, and that said land be held subject to the payment in full of said execution; that, upon recovering said sum, the said administrator pay as follows, to-wit: To Wilkins & Cain three hundred dollars for their services as attorneys to said estate; to Joseph H. Polhill the sum of one hundred dollars for acting as auditor in this case; to E. H. Pottle one hundred dollars for counsel fees; and to Joseph H. Polhill the further sum of one hundred and fifty dollars for counsel fees; that he pay any legal costs of administration since his last returns and the costs of this litigation, and that he pay the balance of said sum to Enoch H. Owens, trustee of Elizabeth Owens, Caroline Farmer and Edward C. Farmer; and that, upon payment by said Owens to said Farmer of a sufficient amount of money to cover the payments to be made by said Farmer, as above stated, and tendering a receipt by said Owens, as trustee, as above set forth, for the balance of said sum; that said Henry J. Farmer, administrator, as above set forth, make to him titles to said land, and that, upon a failure to pay by said Owens the amount required as before stated, that said land be resold by the execution to issue as allowed by this decree, and that from the proceeds of said sale, said payments be made, as set forth in this decree, and the balance paid to said Owens, as trustee, as before set forth.”</p> <p>Owens failed to make tbe payments, and surrendered the land to Farmer, administrator, in settlement of the claim; but immediately took out a homestead therein, as next friend of the minor children of Hannah, deceased. On a rule brought in 1871, to require the administrator to execute the decree, these facts were set up as a defence, and the rule was discharged.</p> <p>In 1882, the beneficiaries of the homestead had become of age, and the present rule was brought at the May-term of court, 1883, to compel the execution of the decree by the administrator. To this rule Owens, who was one of the defendants, set up, among other things, that the decree was dormant and could not be enforced by rule; and that, the rule nisi was proceeding to enforce the decree in favor of Wilkins &-Cain and J. H. Polhill, who were not parties to the bill, whose claims are not set up therein, and in favor of whom no execution was provided to be issued.</p> <p>The court held the decree to be dormant, and on demurrer dismissed the rule. Movants therein excepted. A cross-bill of exceptions was also filed, which need not be stated in detail.</p>

. Richmond County. Education. Tax. Laws. Constitutional Law. Before Judge Roney. Richmond Superior Court. October Term, 1884. The plaintiffs filed their bill to enjoin the collection of the tax of two and three-tenths mills on each dollar of property in Richmond county as a school tax, under an assessment made by the board.of education of that county.

<p>A judgment of a court of competent jurisdiction is conclusive between parties and privies, as to the facts which it decides, until reversed or set aside.</p> <p>(a.) The issue made by aplea of former recovery should be submitted to the jmy, under proper instructions from the court as to the . effect of the adjudication pleaded in bar; but where the record so pleaded showed that the matter in controversy had been fully determined in the former suit, and the adverse party controverted none of the facts involved in the issue, the fact that the court dismissed the case 'on motion, instead of submitting it to the jury with instructions to Arid for the defendant, will not require a reversal.</p> <p>(b.) The Supreme Court is authorized to make final disposition of a case and to give it such direction as is consistent with the law and justice applicable to it, and as will prevent the unnecessary protraction of litigation.</p>

<p>Insurance. Contracts. Damages. Policy. Collateral Security. Title. Assignment. Gold. Currency. Practice in Supreme Court. Before Judge Adams Chatham, Superior Court. June Term, 1884.</p> <p>The defendant in error, Garmany, was insured by the Alabama Gold Life Insurance Company, under a policy, which made the premiums payable on August 27th of each year, without specifying any particular hour. Garmany had paid the premiums on that day, at any hour of the day, indifferently, and the payments were so always received by the company, without regard to hours For some years after the issuance of the policy, the company had a local agent in the city of Savannah, in this state, but removed all its agencies out of the state about 1879.</p> <p>In May,-1880, Garmany assigned the policy to W. W. Chisholm to secure a debt, which he subsequently paid, and Chisholm returned the policy. The notices of maturity of policies, which were sent by the company, called upon him to pay by 12 (noon) of the day of maturity.</p> <p>On the 27th of August, 1881, Garmany, failing to find any one in Savannah authorized to receive the payment, paid the amount to the Western Union Telegraph Company, to be paid in Mobile to .the insurance company.</p> <p>There is some discrepancy in the evidence as to the time when this was done. The manager of the telegraph office swore that he tendered the money in cash, between two and three o’clock in the afternoon of that day, at the office of the insurance company, while the secretary of the company testified that no regular tender was made until August 30, but he was notified at 6.10 P. M. on the 27th that there was money at the office for him. It was refused.</p> <p>Plaintiff brought suit for the amount of premiums which he had paid. Under the charge of the court, he recovered a verdict for $1,247.13, principal, with interest. Defendant moved for a new trial, which was refused, and it excepted.</p> <p>The other facts are stated in the decision.</p>

<p>1. Grounds of exception abandoned here will not be considered.</p> <p>2. Where the order in which a case was argued resulted from an arrangement entered into between counsel for both parties and the court, it furnishes no ground for exception.</p> <p>3. There was no error in refusing to charge that, “ if there is a theory of the defendant which is supported by evidence and is not contradicted by other evidence in the case, then the jury would be authorized to adopt the same, unless they should believe that the witnesses who supported it were unworthy of credit.” Whether such request was correct law or not, it was too general and vague, and might have misled the jury.</p> <p>4. Newly discovered evidence, which is merely cumulative and which might have been procured in time for the tidal by the exercise of proper diligence, will not require a new trial.</p> <p>5. It is the duty of a railroad company to furnish its employés with reasonably safe material and tools for their use while working in its service; but if the employé is aware of the dangerous character of any particular tool or instrument, and continues to use it, he cannot have redress for any damage he may sustain by its use; nor would it alter the rule if an employé knowingly used a dangerously defective tool under the immediate orders of a superior employ é.</p> <p>(a.) The evidence in this case does not show affirmatively thátthe' injured etnployé had knowledge of the defect in the machinery which caused his injury, nor is it clear that it was any part of his duty either to inspect the piece of machinery in question or to report its defects. The testimony as to the manner in which he used ■ it and his care in applying it was conflicting, and the presiding judge having approved the finding of the jury, this court will not interfere.</p> <p>(6.) In the absence of other evidence upon the point, it does not follow that a hand, whose duty it is to apply the brakes on a train, has sufficient skill to determine their fitness for use by an inspection,</p> <p>(c.) Cases in 58 Go,., 485; 64 Id., 100, do not conflict with these views.</p>

Liens. Contractors. Record. Administrators and Ex-excutors. Husband and Wife. Trusts. Before Judge Stewart. Spalding Superior Court. February Term, 1884. To the report contained in the decision, it is necessary to add only the following: Westbrook filed his petition to the superior court, alleging, in brief, as follows: He was a mechanic and contractor, and as such built a house for Banks, commencing the work in 1869, and doing the last work on the building on April 2, 1880.

<p>Deeds. Estates. Title. Fixtures. Trespass. Ejectment. Entry. Parties. Damages. Words and Phrases. Before Judge Fort. Clarke Superior Court. May Term, 1884.</p> <p>On April 20, 1883, Florida C. Carr et al., as heirs at law of William A. Carr, brought their action against the' Georgia Railroad to recover damages for the removal of a brick depot building, which they claimed had become their property under the deed set out in the decision, by reason of the fact that the company had violated the conditions therein contained. Defendant pleaded the general issue, and that it removed the depot while it was in' lawful possession of the premises and was the owner of the same.</p> <p>On the trial, the deed from Carr to the company was introduced in evidence, and it was shown that the company had extended its line beyond the depot in dispute} had ceased to use it as a freight and passenger depot, and had torn it down and removed it. The evidence for the. plaintiffs fixed the date of the tearing down in March, while that for the defendant was to the effect that the company removed from the depot on February 17, 1883, which was Saturday, and returned and began tearing down the building on the following Monday (February 39).</p> <p>On February 21, 1883, these same plaintiffs filed a declaration in ejectment against the company. Service was perfected on April 21, and subsequently the defendant filed a plea disclaiming title and possession “ at the time of the commencement of said action.”</p> <p>It having appeared from the evidence that William A. Carr died testate, the plaintiffs amended by alleging that they were legatees under the residuary clause .in the will.</p> <p>The jury found for the defendant. Plaintiffs moved for a new trial on the grounds set out in the decision. It was refused, and they excepted.</p>

<p>Keeping open a tippling-house on the Sabbath day is classed in the statute along with open lewdness and notorious acts of public indecency, tending to debauch the morals of the people; it is not only itself a crime against decency, but is also the generator of other crimes; and in administering the statute against it, courts will not be astute in shielding violators of the law by resorting to niceties of verbal criticism, which would be destructive of the objects and aims of the statute</p> <p>(a.) Whenever it is shown that the house complained of is a tippling-house ; that defendant is its owner; and that it ha» been kept open on the Sabbath day or Sabbath night, the charge is completely made out, and without inore, the jury ought to convict. If the house was opened and kept open against the owner’s consent, express or implied, either by his clerk or some other person, or if it was opened for any cause or purpose which the law would justify or excuse, and if any of these facts be shown, the defendant would be entitled to be acquitted; but such a defence must be established, and it will not be assumed or its existence inferred from the bare fact that the proprietor was not visible to those resorting to the house on Sunday for the purpose of tippling.</p>

<p>1. H. & S. being partners, S. sold and assigned liis interest to M. The contract recited that M. agreed to assume with H. the debts' of the firm of H. & S., and to protect S. from all responsibility therefor. This agreement was signed by IT., who was no party to it, and by M., but not by S. H. gave a note signed in the firm name of II. & M. for a debt which had been due by H. & S.:</p> <p>Held, that in a suit thereon against H. & M., the agreement was ■ admissible in evidence as a part of the transaction between the parties.</p> <p>(a.) In order to render an incoming partner liable for the debts due on account of the business to which he succeeded with his co-partner, some agreement must be shown upon the part of the incoming partner, founded upon a sufficient consideration, to assume such liabilities and pay sue h debts before he can be bound through the new firm to pay the old indebtedness.</p> <p>(6.) The jury might have inferred that the plaintiffs’ agen't had notice of all that occurred in the formation of the new partnership.</p> <p>2. Evidence tending to show that the new partner was grossly defrauded in assuming the liabilities of the old firm threw light on the conduct of the parties, and was admissible.</p> <p>3. The jury should not have been instructed that the effect of the agreement between II. & M. was an assumption of the debts of H. & S. by H. & M. They should have been instructed to consider . it as evidence to show an agreement by M. to assume the debts in connection with H. and to indemnify S. against their payment; hut they should also have been instructed that it would not have that effect if the attendant circumstances were such as to show that it was founded upon none but a fraudulent consideration; that if M. derived no benefit from it, and the facts wore such as to convey notice of the fraud to plaintiffs or their agent, then M. would not be bound to the plaintiffs for the debt due them by IT. & S.</p> <p>4. Nor was it right to charge unqualifiedly that the giving of the new note by H. in the name of IT. & M. for the debt of IT. & S., under • this agreement, was a transaction within the scope of the partnership business of H. & M. Such a charge withheld from the jury the consideration of the defence, and was fragmentary and one-sided.</p> <p>(a.) It was error to charge that, if the plaintiffs abandoned the legal steps they intended to take against H. & S. in consequence of the delivery of their goods to H. & M. and the giving of the note in the name of that firm by H., in order to prevent this resort to ' law, that would be within the scope of the partnership business, and would bind M. This charge should have been qualified by a reference to the facts on which the defence rested.</p> <p>5. The case of Morris vs. Sahlein & Company falls within the principles set forth in Morris vs. Marqueze & Yarney, above determined, and is controlled by it in all its essential features</p>

<p>1. If, in entering judgments against an executor, the name of his testator was erroneously stated, generally this would be cured by amendment. (Hall, J.)</p> <p>2. None of the objections urged by the defendant, to allowing the amendment should have been considered, except, perhaps, that relating to process. They may have been good against the enforcement of the judgment, but were not admissible on a motion to amend it. (Hall, J.)</p> <p>3. Where the process attached to a declaration- was not directed, it was not entirely void or equivalent to no process, hut was amendable ;-and a judgment rendered in such case, while it may have been irregular or erroneous, was not void. (Hall, J.)</p> <p>(a.) The provision in the judjciar}' act of 1799, that a process issuing in any other manner than therein directed should be nullyand void, was properly omitted from the Code under more recent legislation.' (Hall, J.)</p> <p>(6.) Section 3490 of the Code, which declares that “ void process, or where there is no process or waiver thereof, cannot he amended ” must be construed with others in pari materia. (Hall, J.)</p> <p>4. The Chief Justice being absent, on account of providential cause, and Justice.Hall being of the opinion stated'in the foregoing head-notes, while Justice Blandford is of the opinion that the failure to direct the process, and the non-appearance of the defendant and his failure to answer or defend the suit, renders the entire proceeding void, the judgment is affirmed by a divided court.</p>

Criminal Law. Evidence. Dying Declarations. Before Judge Simmons. Crawford Superior Court. March Term, 1884. Bob Battle was indicted for the mui’der of Nelson Jackson, was convicted, and was sentenced to the penitentiary for life.

<p>Summonses of garnishment were sued out and served, under an order for temporary alimony granted to a wife against her husband, pending an action for divorce. He claimed that the amounts due him from the garnishees were exempt, because they were due him for his daily, weekly and monthly wages as a schoolteacher; that he was employed at nine cents per day for first-class pupils, fifteen cents per day for second-class pupils, and eighteen cents per day for third-class pupils. It did not appear when or at what time the indebtedness of the garnishee was to be paid, whether daily, weekly or monthly:</p> <p>Held, that there was no error in holding that the amounts due were subject to garnishment The fact that defendant was a schoolteacher, and that these sums were due him as such, does not exempt these debts from garnishment.</p> <p>(a.) A decree for alimony stands upon a different basis from an ordinary debt.</p>

County Matters. Damages. Negligence Charge of Court. Before Judge Fort. Macon Superior Court.

Mortgages. Contracts. Liens. Vendor and Purchaser. Before S. C. McDaniel,' Esq., Judge pro hae vice. Spalding Superior Court. February Term, 1884.

New Trial. Charge of Court. Before Judge Dorsey. City Court of Atlanta. June Term, 1884. Smith brought his action against the Central Railroad on account of personal injuries received in the mashing of his hand, which resulted in the loss of a finger, while acting as coupler for the defendant, and recovered a verdict for $500.00.

Practice in Supreme Court. Parties. State. Service. Before Judge Branham. Floyd County. At Chambers. December 1, 1884. The governor of the state issued an execution against the Bank of Rome and the sureties on its bond as a state depository.

Title. Prescription. Fraud. Notice. Before Judge Brown. Pickens Superior Court. May Term. 18S4. Hunt et al. brought ejectment against Dunn et al., demises being laid in the name of Hunt, the drawer of the lot, down to Lyle et al., the real plaintiffs. Both the plaintiffs and defendants claimed by chain of title under the drawer of the lot, the title of plaintiffs being the older. Defendants set up prescription by adverse possession for more than seven years.

<p>1. Where it is sought to subject a trust estate at law for necessaries furnished tne oestuis que trust, the declaration should not only set out the names of such oestuis que trust and describe the property of which the estate consists, but should also set Crth the terms of the trust, so as to disclose what were its scope and purpose, or what, if any, restrictions wereimposed upon the trustee’s power, and the value of the property, whether it yields any income, or whether an encroachment on the corpus will be necessary and proper; and also the condition in life and circumstances of the oestuis que trust. Failing in this, the declaration is demurrable.</p> <p>2. The plaintiff having failed to introduce the instrument creating the trust, or to account for its absence and make out his case by secondary proof, a non-suit should have been granted on motion.</p> <p>3. Where a motion for non-suit has been made and sustained, and an entry to that effect has been made on the judge’s docket, but before the judgment of non-suit has been put in writing and placed upon the minutes, the plaintiff has a right to dismiss his suit voluntarily, and a refusal to permit him to do so was error.</p> <p>(a.) While defective pleadings may authorize the dismissal of a suit, they afford no ground of a non-suit.</p> <p>(6.) The effect of the dismissal of a case on demurrer because no case has been made out by the allegations in the petition, as res adjucbicata, discussed.</p> <p>(c.) This case distinguished from that in 55 Ga., 20.</p>

Deeds. Title. Estates. Husband and Wife. Fraud. Before Judge Fort. Sumter Superior Court. October Adjourned Term, 1883. A mortgage fi. fa. in favor of T. J. Dunbar & Company against William Mize was levied on a lot of land, which was claimed by Mrs. Mize, the defendant’s wife. Originally Mrs. Mize joined her husband in the mortgage, but on a proceeding to foreclose against her, she pleaded that it was the debt of her husband, and the issue was found in her favor.

<p>1. A testator by the first item of this will provided for his burial. By the second item, he provided for the payment of his debts. By the third item, he provided for ahorne for his wife,, during her natural life, and at her death, said property to revert to said estate, to be disposed of by his will as a part of the residue. By the fourth item, he gave an annuity of $200 to his wife out of the income of his estate, and declared that the provisions for his wife should be in lieu of dower. By the fifth item, he gave to his mother $100. By the sixth, he gave to his brother, Michael, his watch and chain. By the seventh, he gave $50 to the Catholic church in Columbus. By the eighth, he gave the proceeds of a note of $270, which he held against his brother, Bernard, to his executor, to be expended in the education of the eldest son, or the eldest surviving son, the lawful child of his said brother, if any, and if not, then for like education of the eldest surviving daughter of said brother. By the twelfth item, he appointed his uncle, John McCarty, his executor. The ninth, tenth and eleventh items were as follows:</p> <p>“ Item 9. — It is my will and purpose, likewise by this, my will, to secure to my dear daughter, Mary Ann Dolan, for the sole and separate use, benefit, enjoyment and behoof of herself and her lawful issue during her life, and not in any wise to be at the control or disposal of any husband she may have, or to be at all subject or liable to his debts, or for his debts, contracts or liabilities, all of my other property, of whatever kind or nature soever. And with this view, I give and bequeath all the residue of my estate, real and personal, including six tenements and the ground on which they stand (describing them, and also another tenement), including also all my other real estate not hereinbefore disposed of, and all my other personal property, bonds, notes, accounts, choses in action, claims or demands of any description whatever, I give and bequeath said residue to my said executor, and to his successors, as my legal representativesi in trust nevertheless, and with the special confidence to have and to hold the same, and the proceeds of the same, when realized in money, to and for the sole and separate use, benefit, enjoyment and behoof of my said beloved daughter and her lawful issue; said property and proceeds not in anywise to be controlled, or to be at the disposal of any husband she may have, or ever be or become subject to or liable for his debts, contracts or habilites. I will and desire my executor, and his successors in said trust, to retain in his and their own hands the possession of said residue and its proceeds, at least until my said daughter shall arrive at full age, and control and manage the same, its rents, issues and profits according to their best judgment and discretion, for the best interest of my said daughter, and the preservation and enhancement of my estate; and whenever he shall deem it advisable for those purposes, before she arrives at age or after-wards, and she thereto gives her consent in writing, I hereby authorize and empower him or them, confirming said trust arid confidence, to purchase other real property, or sell said residue or any portion thereof, and invest the proceeds thereof, as well as its rents, profits and issues, in other real estate, personal property or moneyed securities, taking titles thereto to himself, or themselves, as trustees aforesaid, with the like provisions for the sole and separate use, benefit, enjoyment and behoof of my said daughter and her issue, and not to be in the control or disposal of any husband she may have, or be subject to or liable for his debts, contracts or liabilities. It is also, further confirming said trust, my will and desire that, out of the income of said residue, my said executor defray the reasonable and proper charges and expenses for board, plothing, maintenance and education of my said daughter until she arrive at full age, and that said income, or a sufficiency thereof, shall afterwards be devoted to the support and comfort of herself and her issue during her life, and I do hereby appoint my said executor her guardian, with the trusts and confidences hereinbefore expressed, and with the request that he will place her, when she shall have arrived at a suitable age, at some respectable Catholic seminary to be educated.</p> <p>“ Item 10. — It is my desire that my executor will, from time to time, with as little delay as possible, and as they shall be realized by him, proceed to invest, and continue to invest, all of the cash means of my estate, and the income accruing therefrom for rents, interest, issues, profits, etc., — all that shall not be needed to meet the exigencies of the bequests hereinbefore made and the current disbursements herein directed — in other real property, such as stores on Broad street, in said Columbus, yielding reasonable rents and profits, or in some moneyed securities bearing interest, taking titles thereto in trust as aforesaid, and with the like limitations for the sole, separate and independent use and enjoyment of my said daughter and her issue, and not to be at the disposal or control of any future husband of hers, or liable for his debts, contracts or liabilities.</p> <p>“ Item 11. — Upon the event of the death of my said daughter without child or children, or the issue thereof surviving her, I desire my said executor, or legal representatives, to sell all said residue upon the best terms they can reduce the same to cash means, and from the proceeds thereof I give and bequeath to my dearly remembered mother, Bridget Dolan, one hundred dollars; to my brother, Bernard Dolan, three hundred dollars ($300)," (and to other brothers and sisters in proportions named) :</p> <p>Held, 1st, that the words, “ lawful issue,” when taken in connection with the explanatory superadded words used in this will, are words of purchase, and not of limitation.</p> <p>2. That no estate tail was created by this will.</p> <p>3. That a trust estate was vested in the executor, and hence in his executor, for the use, benefit and behoof of testator’s daughter during her life.</p> <p>4. That this estate to her was subject to be opened upon the birth of a child to her, to let in such child for a use, enjoyment, main- ' tenance and support with its mother, during her life.</p> <p>5. That upon the death of the mother without a child, or tbe issue thereof, living at her death, the whole estate would have gone over to testator’s mother, brothers and sisters.</p> <p>6. That having left a child living at her death, the limitation over was defeated, and the absolute, fee simple estate vested in the child.</p> <p>7. That the trust in the executor of testator’s executor became executed upon the death of testator’s daughter leaving a living child.</p> <p>8. That the son of testator’s daughter takes the whole estate, not by inheritance from his mother, but by purchase, under the will of his grandfather, and a right of action having accrued to him at the death of his mother, he is entitled to the relief he seeks.</p>

Promissory Notes. Endorsement. Principal and Surety. Protest. Waiver. ■ Contracts. Before Judge Hammond. Fulton Superior Court. March Term, 1884. The question in this case was whether one who endorsed notes of the following form thereby waived notice of demand and protest: “$80.00.

<p>A deed of record described the lot conveyed as follows: “ Situated on the corner of Pine and Peachtree streets, commencing on Pine and running north ninety-three feet on Peachtree street; thence west two hundred feet tb a ten-foot alley; thence south ninety-three feet to Pine street; thefice along the north of Pine street to the beginning, containing one-half acre.” On a bill to prevent the closing, by subsequent purchasers of adjoining lands, of a portion of the alley claimed to lie beyond the lot of complainant, the evidence was conflicting as to whether or not complainant bought the lot with reference to a map on which the alley was marked as running through from Pine street to a, certain avenue seventy feet in width:</p> <p>Held, that the deed of complainant did not give notice of any right. to an easement in an alley through the entire tract, but only to the use of an alley running along her lot from Pine street north, the width of her lot. Nor was there any other evidence of notice, and the injunction was properly refused.</p>

Evidence. Title. Notice. Fraud. Before Judge Hammond. Fulton Superior Court. March Term, 1884. Alexander Ratteree, as administrator of Julia Ann Ratteree, deceased, obtained an order allowing him to sell certain real estate, at the April term, 1882, of the court of ordinary of Fulton county, and proceeded to advertise thereunder. A claim was interposed to certain property so advertised by Morris J. Conley.

<p>In cases of malicious prosecution on the criminal side of the court, the right of action doe3 not accrue until the prosecution terminates; and so, by analogy, the rule should be the same in malicious prosecutions on the civil side of the court, in respect to the time when the right of action accrues and the statute begins to run, except in cases of seizure of personalty under execution, where the litigation is protracted by a claim interposed by the person whose property is seized. In that case, the right of action would accrue whenever the personalty was seized, and the statute would then begin to run, and four years after that time would bar the action.</p> <p>(a.) This case differs in its facts from those in 58 Ga., 195, and 12 Ga., 371.</p>

Municipal Corporations. Streets and Sidewalks. Damages. Yerdict. Attorney and Client. Practice in Superior Court. Charge of Court. Before Judge Dorsey. City Court of Atlanta. December Term, 18S3.

Promissory Notes. Partnership. Principax and Agent. Principal and Surety. Verdict. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1884. Tumlin and Hudgins were partners, the former being a silent one. They borrowed money from Mrs. Nelson, and gave a joint and several note, payable to bearer, and signed by Tumlin first and Hudgins second. Mrs. Nelson brought suit on it.

<p>1. Where two defendants, after verdict against them, moved for a new trial, which'was granted as to one and refused as to the other, and the terms of the order granting it as to the one show that such grant rested on a question of law as to the striking of a plea, and not upon the fact that the verdict was contrary to or unsupported by evidence, the general rule as to the discretion of the presiding judge in granting a first new trial does not prevail.</p> <p>(a.) What is necessary to make a tender effectual as a performance, stated.</p> <p>(b.) A surety is not released because an incomplete tender, made by his principal, was rejected by the creditor.</p> <p>2. Even if it wore error to strike the plea in this case, it was not an error that inj ured the defendant, he having been allowed to introduce, under another plea, all the evidence which could have been introduced under that which was stricken; and the verdict should not have been disturbed on that ground.</p> <p>3. Pleas which set up a defence under a written contract, in so far as they seek to contradict such writing, are demurrable.</p>

<p>Statute of Limitations. Judgments. Wills. Administrators and Executors. New Trial. Yerdict. Before Judge Harris Troup Superior Court. April Term, 1884.</p> <p>Mrs. Eliza Speer, as widow and sole heir-at-law of John A. Speer, deceased, filed her petition, on February 4,1884, to set aside the probate in solemn form of the will of her deceased husband, alleging, in brief, as follows: On November 8,1879, John A. Speer died, leaving a considerable estate. On the 19th of that month, shortly after the loss of her husband, and while she was in great affliction, greatly fatigued from travel, and worn down and sick from having nursed him, and not in a condition to transact business understandingly, D. N. Speer, one of the persons who propounded the will as executor, knowing her condition, presented to her, in the city of Atlanta, a paper, saying it was something which the heirs of said deceased must sign, but not telling her the contents of it, or explaining what it was or what would be its effect, or giving her time to read it. - She supposed that the signing was some trifling affair of mere form, and thereupon signed the acknowledgment of service ; and she did not learn what its force and effect was until a few days before the filing of this petition. D. N Speer was largely interested under the will, and was a brother-in-law of the movant; and having promised his brother, shortly before the death of the latter, to be the protector of the movant, a confidential relationship existed between them, devolving on him the duty of fully explaining to her the effect of the acknowledgment; and his not doing so was a fraud on the movaiff, especially as he was an attorney at law. At the time of the execution of the will and for a long time before and after that period, John A. Speer was mentally incompetent to make a valid will, and its making and his failure to revoke it, he being greatly dissatisfied therewith, were both owing to the undue influence exercised over him by D. N. Speer. All these facts were known to D. N. Speer at the time he obtained (he acknowledgment of service ; but by reason of the procurement of this acknowledgment and her ignorance of its effect, she was not present at court to interpose a caveat to the probate of the will. Other legatees in the will were made parties, and it was prayed that the probate be declared null and void, and that the executors again propound the will, or, at least, that the probate already made be declared to be a probate only in common form.</p> <p>Respondents demurred to the petition on the following grounds:</p> <p>(1.) No copy of the will is exhibited.</p> <p>(2.) It is not alleged that the petitioner has renounced her legacies and declined to take under the will.</p> <p>(3.) It appears on the face of the petition that these proceedings were not instituted within three years from the date of the judgment of, probate, and no sufficient excuse is alleged for the delay.</p> <p>(A.) If aggrieved, the petitioner had an ample remedy by appeal, and no good reason is shown why she failed to avail herself of it.</p> <p>(5.) It is not alleged who are the legatees named in the will, or how or to what extent petitioner’s interests conflict with theirs.</p> <p>(6.) Because the legatees named in the will are not all made parties or brought before the court.</p> <p>(7.) Because the allegations of mental incapacity in the testator and undue influence on the part of D. N. Speer are too vague and indefinite, and no ground of defence against the will is alleged, even if the probate should be set aside and a caveat allowed.</p> <p>(8.) Because the petition is insufficient in law.</p> <p>(9.) Because the petition does not show that the movant was free from negligence in signing the acknowledgment of service, or how she discovered the probate in solemn form, and why she did not discover it sooner, or why she did not move before to set aside the probate.</p> <p>Respondents, D. N. Speer, George A. Speer and W. J. Speer, answered the petition, in brief, as follows: They deny that the movant was, in any manner, overreached or deceived in making the acknowledgment of service, or that she did not know what she was doing, and allege that the proceedings were read over to her at the time by D. N. Speer. She was a person of unusual cultivation and intelligence, in good health and in possession of all her faculties, and well understood the nature of the business in hand; no advantage of any kind was taken of her, and no deceit or fraud was practiced upon her in any manner, but she acted knowingly and intelligently, and did not resist the probate of the will, because she knew that it could not be successfully done and that the will was valid. Movant, with full knowledge of the facts, elected to take under, and not against, the will, litigated with the respondents on the question of dower, asserted the validity of the will, and has received from the executors the annuities given by said will, amounting to $2,901.10 up to January 1, 1884, receipting therefor as legatee, and this she holds and has neither returned nor offered to return it. On the faith of the validity of the judgment probating the will, and without objection from the movant, the executors have gone forward with the administration, have sold the real estate and have' paid debts and legacies as far as due, and the rights of third persons have attached. Movant is estopped by her conduct from disputing the validity of the probate; she knew of the return of service upon her at .the time, but made no objection thereto until now. The judgment of probate was taken at the December term, 1879, of the court of ordinary of Troup county, and the proceedings to set aside this judgment were not instituted until February 4,1884, more than three years after the date of the judgment, and are barred by th® statute of limitations. It is denied that John A. Speer was mentally incompetent to make a will, or that D. N. Speer exercised over him influence of any kind in respect thereto.</p> <p>The ordinary denied the application to set aside the probate, and movant appealed. The evidence was very voluminous, and need not be set out in detail. The jury found in favor of the movant. Respondents moved for a mew trial, on the following among other grounds :</p> <p>(1.) Because the verdict is contrary to the evidence, strongly and ’decidedly against the weight of the evidence, and without sufficient evidence to support it.</p> <p>(2.) Because the verdict is contrary to law and against the principles of law and justice.</p> <p>(3.) Because the court overruled the demurrer to the petition.</p> <p>(4.) Because the court refused to give the following charge: “If you believe that the plaintiff, at least ten days before the rendition of the judgment complained of, in writing acknowledged service on the original petition of propounders, and waived copy and all further service, she would be bound by the judgment rendered, unless she was debarred and deterred from knowledge of what she was signing by the fraud of the opposite party in procuring the acknowledgment, unmixed with negligence on her part; and if you believe that such fraud on the part of one of the propounders has been proved, yet if you also believe that the circumstances were such as to put a reasonable person, like circumstanced as she was, on inquiry, and she did not inquire nor ask the contents of what she was acknowledging service upon, nor read the same, nor have it read, or if you believe she did not inquire because she suspected she- would not understand the answers, then and in that event your verdict should be for the respondents.”</p> <p>(5.) Because the court refused the following charge: “ If you believe such fraud existed, and if you further believe no negligence on part of movant existed, then the statute of limitations would not run against movant until the discovery of the fraud, but -if notice in writing was at any time given to the movant, by one of the propounders, that the judgment probating the will in solemn form had been rendered, from the time of the reception of such notice, the statute would begin to operate; and if more than three years elapsed between the time of the reception of such notice and the filing of this petition, the movant would be barred, and your verdict should be for the respondents, nor would it avail anything if movant were afterwards misled by her own counsellors and agents.”</p> <p>(6.) Because the court refused to charge at all on the subject of the statute of limitations, holding that the issue was solely whether the judgment rendered by the court of ordinary was void or valid, and that the statute of limitations was not at issue in this case.</p> <p>(7.) Because the court refused to charge on the subject of estoppel</p> <p>(8.) Because the court charged as follows: “The sole and only question for you to determine by your verdict is this: Did D. N. Speer fraudulently procure Mrs. Eliza Speer to acknowledge service on the motion to probate the will of John A. Speer, and was she kept in the dark as 'to what was being done by his fraudulent acts, and th.us had no notice, and was she free from negligence or fault on her part?” — The objection was that this excluded from the consideration of the jury the questions as to any acquiescence of movant, as to delay or limitation in moving against the judgment, and as to estoppel of movant in attacking the same.</p> <p>(9.) Because the court admitted evidence of movant that, in 1874, John A. Speer had paralysis of the vocal chords, which made it difficult for him to speak, and that he was addicted to the use of opium in his last years; also all other evidence regarding the mental incompetency of the testator. — The objection was that the evidence was irrelevant.</p> <p>(10.) Because the court refused to continue the case on the application of respondents, on the ground that they were surprised at the evidence mentioned in the ground nest preceding, and could meet and overcome it by the evidence of the physician who attended the testator at the time the occurrences were alleged to have taken place, if time were given to procure the attendance of the witness.</p> <p>(11.) Because the court admitted in evidence a prior will of John A. Speer, which had been revoked. — The objection was that it was irrelevant.</p> <p>(12.) Because the court, having charged as follows, “You are not to determine, by your verdict, whether the paper admitted to probate was, in fact, the last will and testament of John A. Speer or not, nor whether it was a just will or not, nor whether John A. Speer had mental capacity to make a will or not, nor whether D. N. Speer, by undue influence, procured John A. Speer to make this will or not, nor whether John A. Speer was satisfied with his will or not,”— added the following charge: “ The court has admitted evidence on these questions solely for your consideration on the question whether D. N. Speer may have had any motive or not in practicing a fraud upon Mrs. Eliza Speer, the movant in this case; and I now submit to you the legal principles controlling these particular questions only to enable you to properly consider these facts just referred to, as they bear upon the sole and only issue your verdict will determine, namely, whether or not Mrs. Eliza Speer had legal notice of the motion to probate this will in solemn form.” — The objection was that the latter charge was an expression of opinion on the evidences and confined the jury to consideration of the motives of D. N. Speer only, without réference to those of movant also.</p> <p>The motion was overruled, and respondents excepted.</p>

<p>Trusts. .Wills. Statute of Limitations. Presumptions. Guardian and Ward. Before Judge Branham. Polk Superior Court. February Term, 1884.</p> <p>Reported in the decision.</p>

Criminal Law. Laws. Construction Practice in Superior Court. Charge of Court Evidence. Infants. Witness. Kidnapping. Before Judge Harris. Carroll Superior Court. October Adjourned Term, 1883. To the report contained in the decision, it is only necessary to add the following: YY. C. Gravett was indicted for kidnapping Euphrasia S. Noles, a child of E. M. Noles, under eighteen years of age.

<p>1. A demurrer to a bill could not be made and disposed of in vacation and before the term of court to which the bill was returned had arrived; and although it could then be used as cause shown against the grant of an injunction or ne exeat, or the appointment of a receiver, it stood over for a hearing at the term to which the bill was returned. Under the law, it could only be heard then, or thereafter upon notice or order that it be heard in vacation</p> <p>(o.) Although a demurrer for want of equity may have been urged as cause against the grant of an injunction, and although the injunction may have been granted, and that judgment may have been affirmed by this court, yet this does not preclude the defendants from insisting on its demurrer in term, and does not estop the court from passing on it.</p> <p>(6.) Where the order dismissing the bill was general, and the judgment was not put on any particular ground, if any one or more of the grounds taken requires the decision, it will be affirmed.</p> <p>(c.) The allegations of this bill are not sufficient to show the necessity for the interposition of a court of equity.</p> <p>(d.) It would have been proper, if not necessary, to make the creditors preferred by the assignment parties to the bill, where the preference given to them was alleged to have been fraudulent.</p> <p>(e.) On the hearing of a bill which prayed both for an injunction and the grant of the writ of ne exeat, an order, refusing the latter writ, provided the defendant would give a bond, with security, to make good any judgment found in favor of the complainant, was error.</p> <p>(/.) That an assignment is void because no sworn schedule of the effects of the assignor is attached was equally available to set it aside by legal proceedings as by those in equity.</p> <p>(p.) The bill, being dismissed on demurrer, carried with it the interlocutory orders made thereon and the bond given in compliance with such orders; and an order directing the writ of ne exeat to be discharged and the bond to be cancelled, if not superfluous, merely embodied the inevitable legal conclusion from the dismissal.</p> <p>(ft.) The writ of ne exeat will only issue where the defendant is removing or about to remove himself or his property or the specific property to which complainant claims title or in which he claims an interest; it must appear that no adequate remedy is afforded at law, and the bill must be verified by one or more of the com. plainants. An affidavit by an agent or attorney, or by complainants themselves, that the allegations are true to the best of affiant’s knowledge and belief, is insufficient.</p>

<p>1. A woman being entitled to a distributive share of an estate located in Georgia and South Carolina, entered into an antenuptial contract in 1847, in order to secure herself the sole right to dispose of her separate property, so as to take effect after the death of either herself or her intended husband, notwithstanding her coverture, and to relinquish any claim she might have to dower or other provision from his estate, in case she survived him. Both herself and her intended husband wore then and afterwards residents and citizens of South Carolina. The marriage settlement recited that she was entitled to a distributive share of the estate, and gave to the husband during the coverture the right to enjoy, for his use, all the interests and profits of the estate, but should he survive his wife, then the property was to go to ,such persons as she, ‘‘by her last will and testament in writing duly executed, should direct, limit or appoint, to the intent that the same may not be at the disposal or subject to the control, debts, forfeiture or engagements of the said (intended husband), but in default of su h direction, limitation or appointment, then to the heirs of said (intended wife).” Her distributive share of the undivided estate being set apart, it was conveyed in 1850 to her trustee “for the uses and purposes and subject to the agreements, provisions and limitations in all respects ” of her marriage settlement, “and for no other uses, purposes or limitations whatever.” The wife died in 1S57, intestate :</p> <p>Held, that the he irs of the wife should be determined according to the laws of South Carolina then of force as to the persons then answering that description.</p> <p>(a.) Marriage contracts in writing are to be liberally construed, to carry into effect the intention of the parties; and no want of form or technical expression will invalidate them The intention of the parties is the cardinal rule of construction. Attendant and surrounding circumstances may always be resorted to, and proof of the local usage or understanding of words is admissible to arrive at the meaning intended by the parties.</p> <p>(6.) A partition having been had under the law of South Carolina, giving the husband one-third and the children two-thirds of the wife’s estate, the children held title to the share received by them in Georgia, and it could not be subjected to the debts of the husband.</p> <p>2. If the settlement were construed under the laws of Georgia, the husband would take nothing under the designation of “heirs,” but the property would pass to the children, such being the evident intention of the parties</p>

<p>New Trial. Practice in Superior Court. Practice in Supreme Court. Judgments. Nullities Waiver. Before Judge Mershon. Decatur Superior Court. May Term. 1884.</p> <p>Exported in the decision.</p>

<p>1. The continuance of cases on account of the absence of counsel is not favored, and such absence is no cause for postponement, unless in cases of necessity or misconception. Absence without leave, to atteud trials of cases pending in other courts, is no ground for continuance.</p> <p>(a.) The judges of the superior courts are invested with discretion as to the continuance of cases-for the term, or their postponement during the term, and unless such discretion is flagrantly abused in overruling a showing for a continuance, this court will not interfere with its exercise.</p> <p>2. If no objection be made to the asking of leading questions or the proving by parol of the contents of writings, without showing them to be lost or inaccessible, the admission of such evidence and the allowance of such questions will furnish no ground for a new trial-Nor will this be changed by the fact that the moving party was not represented on the trial, if its counsel voluntarily absented themselves, and were not present to raise objections.</p> <p>(a.) Whether leading questions are to be allowed is largely in the discretion of the court, and ihis discretion will not be controlled except in extreme cases, although the witness called may be the opposite party in the case.</p> <p>(6.) It does not appear that parol evidence was improperly admitted, so as to injure the defendant.</p> <p>(c.) What an agent does within the scope of his authority binds his principal, and this applies not only to his acts, hut to all the r'eprosentations made by him in that business. A corporation can act only by its agent, and within the line of his business • if not the company itself, he is its alter ego.</p> <p>3. Where a policy of insurance contained a provision mat if it was terminated by the non-paj-ment of premiums, and for no other cause, after two full years’ premiums had been paid, then it should be valid for as many tenth parts of the sum insured as there should have been annual premiums paid; and where the policy was thus terminated, and the secretary endorsed thereon, “This policy is valid for two-tenths of the amount insured, subject to the terms and conditions of the policy,” semble that the policy had been fully executed, and the company had no further control over the actions of the insured in respect to his going into the torrid zone and other like conditions, and that his going thither thereafter furnished no ground for defence.</p> <p>(«.) If, after full knowledge of the fact that the insured had gone to the torrid zone in violation of one of the conditions of his policy, and that there was a discrepancy in regard to his age, it so appearing from the application for the policy and the proofs of death, the insuring company expressed satisfaction with the proofs, and promised payments, this amounted to a waiver of the forfeiture claimed to result from a failure to comply with such conditions,</p> <p>(b.) An error in stating the age of the deceased in the proof of the death is explainable.</p> <p>4. In §2850 of the Code, which provides that where a .oss occurs under a policy, and the company refuses to pay it within sixty days after demand by the holder of such policy, they shall be liable to pay him, in addition to the loss, not more than twenty-five per cent on their liability for such loss, and also all reasonable attorney’s fees for the prosecution of the suit to recover the same, unless it shall be made to appear to the jury trying the case that such refusal to pay was not in bad faith; the terms “ bad faith ” are not the equivalent of actual fraud, but they mean any frivolous or unfounded refusal inlaw or in fact to comply with the requisition of the policy- ■ holder to pay according to the terms of his contract and the conditions imposed by statute.</p> <p>5. Where a motion for new trial is made, the respondent is entitled to show cause against its grant; and in this case the cause shown made it evident that no other verdict could have been rendered than that which it was sought to set aside, and a new trial was properly refused.</p>

<p>1. In a trover case, the plaintiffs have a right to elect, whether they will accept an alternative verdict for the property or its value, or whether they will demand a verdict for the damages alone, or for the property alone and its hire, if any; and it is the duty of the court to instruct the jury to render a verdict in accordance with such election. That in such a case the court stated that he would allow no other verdict than one' for damages, and thereupon the plaintiffs in trover consented to this direction and adopted it as their election, furnished no ground for exception by the adverse party. This was the legal effect of what transpired in this case.</p> <p>■ 2. Where an agreement related to personal property and the application of skill and personal labor to it, in order to make it conform to the uses intended by the parties, and where the complainant had the property in possession, although he did not have title to it, this did not furnish a proper case for a decree for specific performs nee.</p> <p>(a.) Keither a court of equity nor any other court has power to compel a party to perform personal service for another, which he has contracted to perform, but is unwilling to render. A court of equity has no power to enforce such a decree, especially against non-resident defendants.</p> <p>(6.) Inconsequence of a failure of the defendants to perform their contract, the complainant could have filed his bill for its recission and to recover damages for its breach, but he could not have repudiated the contract and at the same time retained possession of the property. When the vendors elected to abandon the contract and brought trover for the property, the vendee could only enjoin the action, so as to keep the property in statu quo, to answer whatever either party might recover on the final hearing of the -suit.</p> <p>(c.) A money verdict for the plaintiffs in trover (defendants in the equity case) did not dispossess the other party of the property, but fixed a lien-on itsuperior to all other outstanding liens against the holder.</p> <p>3. Where the purchaser of a saw-mill and outfit sought to recover damages against the vendors thereof, resulting from the fact that the property received was inferior to that for which he bargained, losses sustained by the purchaser from abandoning iilanting operations in which he was engaged and going into the milling business, improvements made in order to carry on such business, alleged losses of profits by reason of having received an inferior outfit, additional purchases of timber, stock, vehicles, etc., to ran. a mill of the capacity of that bargained for, and personal services of himself and assistant while he was running the mill, or until its capacity had been fully tested, did not form elements of damage which could be recovered. Such damages were too remote and contingent, and evidence concerning them was properly rejected.</p> <p>(a.) The general rule is that in an action for the breach of a contract by delivering goods of a quality inferior to that contracted for, the proper measure of damages is the difference between the value of the goods of the quality contracted for at the time of the delivery, and the value of the goods then actually delivered, or their value as ascertained by a re-sale within a reasonable time.</p> <p>(6.) The charge was at least as favorable to the complainant as he could expect, and the defendants have not excepted.</p>

<p>. 1. A creditor who has been defrauded by misrepresentations of the real capital of a bank has his remedy in an action of tort against all who participated in the fraud, but the wrong done him cannot entitle the entire body of creditors, who have not suffered from'the alleged fraud, to recover of th^ entire body of stockholders whs have taken no part in it. Each case stands, in this respect, upon its own particular circumstances; and it is essential to an action on account of the wilful misrepresentation of a fact made to induce a party to act, that he should have acted on it to his inj ury.</p> <p>(a.) Even where the suit is prosecuted for creditors by a receiver, acting under appointment of the court, it is essential that the pleadings should set forth the facts entitling each of the creditors to maintain his action.</p> <p>(6.) Creditors are a favored class, and courts will always lend them aid, and will afford them every facility and remedy to detect, defeat and annul every effort to defraud them of their just rights.</p> <p>2. A bank has much the same rights to make an assignment that others have. Whenever it surrenders its charter, or the use thereof, it may make in good faith an assignment of all its effects for the payment of its debts, as natural persons may, but it cannot thereby prevent such preference among its creditors as the law gives; nor can a natural person do so.</p> <p>(a.) If such an assignment was valid when made, it will not fail for the want of an assignee; but the court, in vacation or term time, is authorized to appoint a receiver, who shall execute the assignment. When appointed, he has ail-the rights, privileges and powers of the assignee, but none others.</p> <p>S. A corporation can only act by and through its members and appointed agents. Their action is necessarily its action, and an attempt to separate the two and hold the bank to be the victim of the fraud of the members of the corporation and owners of the property, and to relieve it from responsibility for their actions, is impracticable.</p> <p>4. At common law, or without special statutory authority, a voluntary assignee cannot maintain suits for the benefit of creditors, for whom he holds in trust the effects assigned, which the as” signor could not have maintained; and there is no such authority in this state.</p> <p>(a,) If any such inference can be drawn from the act requiring a sworn schedule to be attached to the assignment, it was passed subsequently to tbe execution of this assignment, and therefore is not applicable to it.</p> <p>(6.) The assignee having no power to assert a right or title with which the assignor had parted prior to the execution of his deed, neither has his successor in the assignment such power, although appointed by the court.</p> <p>(c.) The sections of the Code regulating the collection and distribution of the assets of a bank by a receiver appointed upon a judgment forfeiting its charter, do not apply in the case of a voluntary assignment by the bank of its assets to pay its debts according to the requirements of law.</p> <p>5. Parties who have combined to defraud others cannot invoke the aid of a court to enable them either to enforce or to rescind such an arrangement, nor can a voluntary assignee to pay debts or the successor of such assignee do so.</p> <p>(a.) Suggestibns as to the powers which might properly be given to assignees, executors and administrators as to cases of fraud by their assignors or decedents.</p> <p>(b.) The verdict sought to be set aside could not have been other than it was.</p>

<p>1. A plaintiff in ejectment may in all cases make the true claimant of the title a defendant by serving a copy of the pending action upon him; and upon his being so notified, he shall be bound by the judgment both for the land and for mesne profits. Nor is he released from liability for mesne profits because he has rented the land to a tenant who has received the income arising therefrom.</p> <p>(a.) If the recovery were against the tenant alone for the land and mesne profits, while it would have bound the landlord as to the land itself, it would not have bound him as to the mesne profits.</p> <p>2. This case being without merit, and apparently brought here for delay only, ten per cent damages are awarded against the plaintiffs in error.</p>

Jurisdiction. Title. Venue. Equity. Before Judge Willis. Muscogee Superior Court. May Term, 1884.

<p>1 Where a widow renounced the provisions of her .husband’s will, and elected to take dower, which was assigned to her, she could not require the annual taxes on the dovrer lands to be apportioned between her and those to whom the reversion belonged.</p> <p>(a.) Permanent improvements placed on an estate by a life tenant, which remain at the termination of the estate, inure to the benefit of the reversioners or remaindermen, but they cannot be made to contribute thereto or to repairs, nor can they be set off against mesne profits, in ejectment by the reversioners to recover • possession at the death of the life tenant.</p> <p>2. The right to dower accrues upon the death of a husband leaving a widow, and carries with it the income which it yields from that date. Therefore, where a widow renounced the provisions made for her by the will of her late husband, and elected to take dower, which was accordingly assigned to her, she could recover the income derived from the property so assigned, from the death of her husband to the time when she entered on the estate.</p> <p>(a.) The provisions of the statute allowing the widow three months from her husband’s death to claim dower, and barring the right if not set up in seven 'years, .do not defeat her right to arrearages for the withholding of her dower.</p> <p>(6.) The judgment allowing dower is no bar to the proceeding for income from the date of the death of her husband, because that question could not be .involved in the proceeding for dower.</p> <p>(c.) That a widow must elect between the legacy bequeathed to her and dower does not destroy her claim for an account^ for the income, and if she elect between dower and a provision in lieu thereof or a child’s part of the realty in ignorance of the condition of the estate, she is not bound thereby, unless such election of dower would have the effect of prejudicing or disturbing rights acquired bona fide by third persons in consequence thereof.</p> <p><'¡d.) This court is strongly inclined to the opinion that the relief afforded in cases of this description rests upon principles quite independent of the statute of Merton; and so far as the rights recognized by that statute are concerned, they were covered by our adopting statute.</p> <p>(«.) Under the liberal system in this state, for every right it is declared there shall be a remedy; the distinctions between real, personal and mixed actions are abolished, and it is optional with a suitor to resort to a court of law or a court of equity to enforce an equitable cause of action.</p> <p>(/.) The right of a widow to mesne profits and income derived from lands assigned as dower, between the death of the husband and the entry of the widow on the lands so assigned, is not taken away by the various statutory provisions giving a year’s support to. the family of the deceased husband. Dower is a permanent provision for the widow for life, and in which no other member of the family has any interest; while the year’s support is a temporary provision for the benefit of the widow and children, or the children, if no widow.</p> <p>Jackson, C. J., concurred.</p> <p>Blandeokd, J., dissented.</p>

<p>Practice in Superior Court. Equity. Partnership. Before Judge Hammond. Fulton Superior Court. March Term, 1884.</p> <p>Reported in the decision,</p>

<p>Pleadings. Justice Courts. Infants. Minors. Contracts. Tender. Before Judge Branham. Walker Superior Court. February Term, 1884.</p> <p>Reported in the decision.</p>

<p>Evidence. Notice. Fraud. Deeds. Registration. Charge of Court. Contracts. Consideration. Principal and Agent. New Trial. Practice in Supreme Court. Before Judge Simmons. Bibb Superior Court. April Term, 1884.</p> <p>This case has been twice before the Supreme Court, and will be found reported in 59 Ga., 343, and 67 Id., 675. On the last trial, the jury found for the plaintiff $2,067.10, principal, with interest from May 1, 1872. Defendants moved for a new trial, on numerous grounds, all of which are sufficiently set out in the divisions of the decision where they are considered, except the following:</p> <p>(1.) Because the court erred in permitting S. N. Papot, when being examined as a witness in said case, to testify, over the objection' of defendants, that there, was about $60,000.00 (sixty thousand dollars) accumulated interest on the four thousand four hundred shares capital stock Vicksburg and Brunswick Railroad Company, transferred by Shorter, Papot & Company to Central Railroad, at the time of said transfer.</p> <p>(2.) The court erred in permitting said Papot to testify, ■ over the objection of defendants, as to the direction given by the board of directors of the Central Railroad and Banking Company of Georgia that General Lawton and Eli S. Shorter should look info the affairs of the road and report, etc.</p> <p>(3.) Because the court erred in ruling out the pencil memoranda made by Virgil Powers at the foot of the let • ter of Ketchum & Hartridge to S. W. Holt, president, of the 14th of May, 1872, to-wit:</p> <p>“ You can say I have matter under investigation, and will report amount due as soon as practicable. V. Powers, Supt.”</p> <p>“ Please return to me with my answer per K. & H. Have directed J. M. Waldren, road master, to make return to me of the cost of completing the work left unfinished; when he reports, I will give you statement of settlemént. Y. Powers, Supt.”</p> <p>(4.) Because the court erred in ruling out the deed from the marshal of the United States,' for the state of Alabama, to W. M. Wadley, for the Vicksburg and Brunswick Railroad, and all its appurtenances and property, on the 9th day of April, 1883, and not allowing it to be read in evidence, when offered'in evidence by defendants, the court ruling it on the ground that defendants had «lot proved its execution, and that its being recorded m the proper office, under the laws of the state of Alabama, did not dispense with proof of execution.</p> <p>The court granted a new trial, and the plaintiff excepted.</p> <p>The entire charge of the court was as follows :</p> <p>Gentlemen on the Jury : This is a bill filed by Shorter, Papot & Co. against the Southwestern Railroad Company, wherein they allege that, on the.28th of November, 1871, they made a contract with said Southwestern Railroad Company, whereby they agreed with said company to finish the work on the Vicksburg and Brunswick Railroad from Eufaula to Clayton, in the state of Alabama. They were to do certain work on said railroad in the way of covering bridges, fixing road-bed, building warehouse, and other things, and when they had finished the road in such manner as to meet the approval of Mr. Powers, superintendent, they would then transfer and deliver to the defendant, the Southwestern Railroad Company, four thousand four hundred shares of the preferred eight per cent stock of tíre Vicksburg and Brunswick Railroad Company of the par value of $100.00 per share, at the rate of one hundred and fifty shares per mile of road finished to Clayton.</p> <p>Complainants further allege that, in pursuance of the contract so made with the defendant, they constructed a fraction over twenty-one miles of railroad, completing said Vicksburg and Brunswick Rail' road to Clayton, and in every particular complied with the terms of their contract; and that all was approved by Mr. Powers, and that they transferred to the Southwestern Railroad Company four thousand four hundred shares of the stock of the Vicksburg and Brunswick Railroad Company, as required by their contract. They further allege that the number of shares that they were entitled to receive under said contract was three thousand one hundred and seventy, but that the defendant, the Southwestern Railroad Company, had only transferred to them three thousand one hundred and seventeen shares, valued at $311,700.00, and that said defendant is still due them, under their contract, fifty-three shares, of the value of $5,300.00. Since filing their bill, they have agreed to Mr. Powers' measurements -of the road, and only claim now forty-six (46) shares, of the value of $1,600.00. These are the allegations of the complainants in their bill.</p> <p>The defendant, the Southwestern Railroad Company, and the Central Railroad Company, having made itself a party, answer the bill filed by complainants, and admit the making the contract as set out in the bill, but deny that they are indebted to complainants in any manner or ip any amount. They say that it is true that Papot & Co. finished twenty-one miles and a fraction of the railroad; that they were entitled to, or would have been entitled to, three hundred and sixteen aiid ninety-eight one hundredths shares of the Southwestern Railroad stock, of the value of $316,298.00, had they waited till the completion of their contract, but that said Papot & Co., by reason of their embarrassments and necessities, induced them, the defendants, to advance to said firm of Papot & Co. a large portion of said stock long before the completion of the contract, on condition that said firm would allow said defendant interest at the rate of eight per cent per annum from the time the advances were made to the completion of the contract; that in pursuance of this last arrangement with Papot & Co., they advanced to divers persons, on the orders of Papot & Co., on the 1st day of February, 1872, two thousand nine hundred and five shares of their stock, of the par value of $290,500.00, and that on the 1st of April, 1872, they advanced two hundred shares, of the par value of $20,000.00, and on the 15th of May shares of the value of $1,200.00, making in all three thousand one hundred and seventeen shares, of the par value of $311,700.00, on which was due for interest, according to -agreement, $4,526.65, making in all $376,-226.20, leaving due said firm a balance of $71.47, which balance was allowed them by Papot & Co. for some unfinished work. Defendants therefore say that Papot & Co. have been fully paid all that they’ were entitled to receive under said contract.</p> <p>Defendants further claim, in their amended answer and cross-bill, that the agreement to pay Papot & Co. one hundred and fifty shares for each mile of the Vicksburg and Brunswick Railroad, when finished to Clayton, w;as made by them solely to secure control of said Vicksburg and Brunswick Railroad, and to run it at their will and discretion in connection with the Southwestern Railroad, which was then, and is now, connected, free from all incumbrances and debts whatsoever; ihat the four' thousand four hundred shares of the stock of the Vicksburg and Brunswick Railroad was a majority of the stock of said road, and its ownership enabled the defendants to control said road; that Papot & Co., to induce defendants to make said contract, assured them that said Vicksburg and Brunswick Railroad was absolutely free from all debts, and subject to no claims or liabilities, and on the faith of these-representations, the contract was made, and the stock of the Southwestern Railroad .delivered. Defendants allege said representations were false, and say that said Vicksburg and Brunswick Railroad had endorsed bonds issued by Barbour county, given for stock in said road, to the amount of $300,000.00, and delivered them to Papot <& Co., who put them in circulation; that Barbour county failed to pay interest on said bonds, and suits were brought thereon against the Vicksburg and Brunswick Railroad on its endorsement, and judgments obtained, the road levied on by the United States marshal and sold.</p> <p>Papot & Co. reply to this part of the answer and cross-bill, and say that, at the time of the agreement or contract, nothing was said about the endorsement of the Barbour county bonds, nor did he, to the best of his recollection, say the Vicksburg and Brunswick Railroad was free from all debts and liabilities.</p> <p>' These are the pleadings as set up in the bill and the answer of the parties, and they constitute the issue for the jury to pass upon under the law, as I will give it to you in charge, and the testimony in the case: The pleadings, I say, are not evidence before the jury. The allegations that Mr. Papot makes he must sustain by the evidence. The allegations in the answer, which the railroad makes, must be. sustained by proof, and the jury must find what is the truth from the testimony in the case. You will, therefore, see that the great con■tention in this case is about the shares of stock, — Papot & Co. claiming, on the one side, that they have fully carried out their contract which they made with the Railroad Company, in November, 1871, and that the Railroad Company refused to pa}' the balance which they owe, and which they claim to be forty-six shares.</p> <p>The Central Railroad denies that, and says that they have fully offered, or at least set up, two defenses. One is, that it was paid off by issuing so much stock, and the interest on that stock, which they claim by a subsequent agreement they made with Papot & Co.; and, secondly, that they bought the road solely in order to obtain control over a road, so that nobody else could have it, on the assurance of Papot & Co. that there were no debts or liabilities against the Vicksburg and Brunswick Railroad, and they say that assurance was false, that it was subsequently sold for debts owed at that time. The Central Railroad don’t claim, mind you, that they paid three thousand one hundred and seventy shares in stock. They claim that they have paid either in stock, money or interest, which amounts to that much. That is for you to find, under the law and the testimony, whether they owe Papot & Co. anything now or not, or whether it is fully paid.</p> <p>Well, upon the first theory of this defence, I charge you this, that the true construction of the contract made on the 28th of November, 18.71, by Papot & Co. and the Southwestern Railroad Company, is this: That Papot & Co. were to receive from the Southwestern Railroad Company one hundred and fifty shares of its stock for every mile completed between Eufaula and Clayton, and that stock to bo par value. For every mile completed they were entitled to one hundred and fifty shares of stock, at par value, at $15,000.00. That is the true moaning of that; and if you believe, from the evidence in the case, that subsequently to the time that this contract was made, in November, 1871, that, on account of the embarrassment or necessities of Papot & Co., they induced the Southwestern Railroad Company, or the Central Railroad Company j to make another contract, whereby they were to issue this stock sooner than the time contemplated in the first contract, and that Papot & Co. agreed to pay interest to the Southwestern Railroad Company on the advance thus made, and if that interest amounts to the stock already issued, to the full amount of $15,000.00 per mile, bn twenty-one miles and four hundred and fifty-seven feet, then they would not.be entitled to recover. The Railroad Company claims that they were not to issue this stock until the road was completed; but by this subsequent arrangement, they did agree to issue it in advance, and that they issued $290,500.00 worth of stock on the 1st of February, 1872, and that dividends had accrued upon that stock at the time they issued it. They, therefore, say that they are not entitled to that under the contract made with Papot & Co.</p> <p>If you believe, as I said, that they did make such a contract as that, that Papot & Co. agreed, in consideration that they advanced this stock to them, that they would allow them two months’ interest at eight per cent interest, of course that should be deducted fro,m the amount of money which they were entitled to under the contract of November, 1871; and if you find that to be the state of facts, then you would calculate the interest on that amount for two months, and add that to the amount of money or stock that the railroad had paid to Papot & Co. at that time, and see what the difference is between the interest and the stock advanced, and what was due under the original contract. I give you the same charge in relation to the stock advanced on the 1st of April; the same question will control that. See how much they advanced on the 1st of April. They claim it is $20,000.00 and the interest on it. If that is true about the interest, then they are entitled to that interest under the contract, if Papot & Co. agi'oed1 to pay them that interest in consideration of the advance.</p> <p>If, on the other hand, gentlemen of the jury, there was no such contract as that made by Papot & Co., that they did not agree to pay General Holt, or the Southwestern Railroad Company, eight per cent on the advance of this stock, but that the consideration for this advance was the turning over of the road from the Vicksburg and Brunswick Railroad Company to the Southwestern Railroad Company; I say, if that was the consideration, and there was no interest agreed to be paid by them, then I charge you that the interest would not be allowable to the Southwestern Railroad Company. If that was a different contract; for instance, if they said: “You will advance us this stock, and you want this road, and it is to your interest to have it; if you will advance us this stock, we will turn over this road and our stock;” and if that was the consideration whereby the Southwestern Railroad Company agreed to turn over this stock, then they would not be entitled to it.</p> <p>I charge you further, gentlemen of the jury, that whether there' was any contract made or not about the rate of interest by Papot & Co. with the Southwestern Railroad Company, the true construction, as I told you before, of the contract of November, 1871, is that they were to have fifteen thousand shares of stock at par value; and if there was nothing said about interest by one party or the other, and Papot & Co. got this stock, and the stock was advanced to Papot & Co. before the completion of the road, and at the time it was advanced, interest had accrued upon it and it was inadvertently paid by the Southwestern Railroad Company, or by mistake, and if there was nothing said about it-, then I charge you that in equity the Southwestern Railroad Company would be still entitled to it as a set-oil or to recover it back, or, at least, Papot & Co. must account for it to the Southwestern Railroad Company. If they have got par value, $15,-000.00 per mile for twenty-one miles, and the fraction, either instock or money, that is a full compliance with the contract on the part of the Southwestern Railroad Company.</p> <p>In this connection, I will charge, you that, if you believe from the evidence that Ketchum & Hartridge were the agents of Papot & Co. to receipt for this stock, and to settle with the Southwestern Railroad Company for Papot & Co., then whatever they did in and about the business of their agency, Papot and Co. are bound by it; because wherever a man says to his agent to do a certain thing and gives him power to do it, whatever that agent does within the scope of his appointment the principal is bound by it. But if, on the other hand, the agent transcends his authority, the principal is not bound by his acts. Therefore, if you shou'ld believe that Ketchum & Hartridge were only agents to receive this stock, and had nothing to do but receive it from the Southwestern Railroad Company, that is all they could do. But if they had a general agency to settle with these' people, representing Papot & Co. generally in reference to this stock, then Papot & Co. are hound by whatever they did.</p> <p>Upon this point, that is the first defence set up by the Southwestern Railroad. In order to determine the truth of this question, you must apply the evidence to these principles of law which I have laid down. Look to all the evidence in the case and determine from that, first, whether there was any agreement made between General Holt, president of the Southwestern Railroad Company, and Papot, that, in consideration of this early advance of the stock, Papot would pay eight per cent interest on the advance. If you fisid that was the contract, then, as I said before, the railroad would be entitled to that. Look to the evidence upon that point,- both for the complainant and for the defendant. You may look to the letters which have been read before you, the testimony of General Holt, testimony of Mr. Papot, and all the other testimony, and determine from all the evidence whether there was such a contract made or not. You may also look to the evidence, if there was any, on the contract to pay eight per cent interest, and whether General Holt had any consideration moving towards him to make this early advance, and if so, was that consideration the fact that Papot & Co. agreed to turn over their four thousand four hundred shares of the Yicksburg and Brunswick Bail-road ; was that the consideration which moved General Holt to make the early advance of this stock ? If that was the consideration, as I have said before, and there was no consideration about the eight per cent interest, and General I-Iolt agreed to that in order to get possession of the road, and that was the thing that moved him to do it, then, of course, he would not be entitled to eight per cent interest. If neither one of these theories are true, you may look to the other, which I have advanced to you; that is, that they were entitled to one hundred and fifty shares of stock for each mile finished, at par value, and there was nothing said about interest, or there was no consideration about turning over the road. Still, if the Bailroad Company, by mistake or inadvertence, or through a misapprehension, paid Papot this stock, with the accrued interest on it, they would still be entitled to have an account from Papot & Co. for their interest. I will charge you further upon that point, that if there was nothing said about that, whether they were to receive the accrued interest, or to account for it or not, but if General Plolt paid it with the understanding on his part that he was to get the interest back, although Papot may not have said anything about it, if he paid it through any misunderstanding of that sort, then, in equity, Papot & Co. must account for it. That brings us then to the next defence.</p> <p>Now, suppose the jury should find against the railroad on the interest question, and find they are still due the forty-six shares, as far as t.he interest question is concerned, then you would go to the next proposition. Or if you should find in favor of the railroad upon this question, then you need not consider the next proposition.</p> <p>That proposition is, that the Central Bailroad, being the lessor of the Southwestern Bailroad, that is to say, that they made the contract with Papot & Co. upon the distinct understanding that they were to get four thousand four hundred shares of the stock, and that it was to be a controlling interest, and that Papot & Co. assured them that there were no debts, liens or liabilities upon it, and they-bought it with that distinct understanding, that they would get a road free from all encumbrances and debts, and it turned out there were thirty-two thousand dollars endorsements of Barbour county bonds which were afterwards sued to judgment, and the railroad sold under them. They say, therefore, that the representations made by Papot & Co. deceived them and defrauded them, because they say they would not have made that contract with this amount of debts-hanging over the road. In other words, the road proved worthless to them. Well, if that defence is true, Papot would not be entitled to recover. I will read you certain sections of the Code. Section 2635.</p> <p>Either one of those four things amount, in' law, to a fraud; not moral, but legal fraud. Therefore, if you believe from the evidence-that the Central Railroad agreed to purchase the Vicksburg and Brunswick Railroad for the sole purpose of being able to control it, and run it in connection with the Southwestern Railroad, and that they thought at the time that they were buying it free from debts, upon the assurance which they say Papot had given them; and if you believe, further, that they asked Papot whether there were any debts • or liabilities on that road, and he told them that there were none, orif he evaded the truth when asked about that, of course Papot would not be entitled to recover, and you would be authorized to find for the railroad. Or if Papot knew at the time the purpose with which they were buying this road; that they thought they were getting it free of all debts, and kept his peace and said nothing about it, and did not inform them about it, why, then he would not be entitled to recover, and you would be authorized to find for the railroad on that ■ theory. For instance: If you go to buy a piece of property from -a man, and you want that property to be put to a certain use, and he knows you want it for that use, and you ask him about it, and he • fails to tell you whether there is any defect in it or not, or conceals from you any defect in it, and he knows that you think it is a perfect • piece of property, and you buy it, and it turns out to be worthless,then he cannot recover from you.</p> <p>Read sections 2654, 3173, 3175, 3177 of Code.</p> <p>Those are the rules of law which I give you upon this second theory • of the defence. If you believe, from the testimony in the case, that. at the time thiá contract was made with Papot & Co., he was asked as to the debts and liabilities of this road, and you believe that Papot & Co. assured Wadley or Holt, or tho officers of the Central Railroad . Company, that there were no debts or liabilities upon the road, arid, you believe, further, that they bought it for the purpose of controlling it and using it as their property, and you should find, from the ■ evidence, 'that at the time they made this contract, there were debts > and liabilities, and.those debts were sued, and that, subsequently, the road was sold under the judgments obtained on those debts, then. I charge you, you would be authorized' to find for the defendant. Or if you believe, further, that Papot knew that Wadley and Holt ■ were buying this road for the purpose of controlling it and running • it in connection with their railroad, and he knew that they were under the impression that there were no debts or liabilities against it,. and he failed to disclose that there were debts and liabilities, then I charge you that you would be authorized to find for the defendant, and against Papot. But if, on the othei5 hand, you believe, from the evidence, that at the time Wadley made the purchase (I say Wadley for the Central Railroad), he had been informed that there were debts and liabilities against the railroad; that they had endorsed these bonds for Barbour county, and he bought with that knowledge, then I charge you, you would be authorized to find for Papot, and against the railroad, on that issue. Or if you believe, from the evidence, that Wadley did not take Papot’s word for it, but he sent his ■ counsel there to look into the matter, and that counsel reported to him that there were debts or liabilities, and he bought with that understanding ; or if you believe that, not relying on Papot’s sayings, he relied cn the sayings of his counsel, leaving Papot entirely out, .and he bought, and there were debts, then you would be authorized to find for Papot, and against the railroad. If you believe, from the •evidence, that Wadley sent his counsel there, and that counsel made all the investigation that was possible to make, and he reported that there were no debts or liabilities to which the road was subject, and Wadley bought on that report, and Papot & Oo. knew at the time there were debts and liabilities to which the road wassubjeet: I say, if that is the truth of the case, then Papot cannot recover, and you would be authorized to find for the railroad.</p> <p>It is claimed, gentlemen of the jury, that one of the attorneys making this investigation was the attorney of the Central Railroad, to-wit, Eli Shorter, and that he knew that these endorsements of the Barbour county bonds had been made by the Vicksburg and Brunswick Railroad Company; therefore, his knowledge, it is claimed by Papot, was the knowledge of the Central Railroad. On that point, .1 charge you this to be the law: If you believe, from the evidence, that General Lawton and Eli Shorter were attorneys for the Central Railroad, and that they were appointed by Mr. Wadley, or the board ■of directors, to go and make this investigation, and you believe that Eli Shorter, being appointed specially for that purpose, knew of these endorsements on this road, then his knowledge became the knowledge of the Central Railroad. If he found it out by reason of the fact that he was the appointed lawyer for this special occasion, then whatever he ascertains, whatever came to his knowledge by reason of .his employment in that particular business, was the knowledge of the Central Railroad. But, on the other hand, if you should find (hat, although Eli Shorter was general counsel for the Central Railroad in Eufaula, and at the same time was president of the Vicksburg and Brunswick Railroad, Company, and as president of the Railroad Company, he had the knowledge that these bonds had been endorsed, and he did not gain that knowledge as attorney of the Central Railroad Company, then what knowledge he got as president of the company was not the knowledge of the Central Railroad Company, and the Central Railroad Company would not be bound by it, although he was their attorney and knew all about the endorsement of the bonds. I say it is claimed that Eli Shorter was general attorney of the Central Railroad in Eufaula, and it is claimed that he was president of the Vicksburg and Brunswick Railroad Company at the same time. Now, whatever knowledge he had as president of the Vicksburg and Brunswick Railroad Company did not bind the Central Railroad Company if he endorsed these bonds as president for that company; the Central Railroad Company was not bound by it by what he did as president; they are only bound when they employed him to look into it to see whether there were any debts or not, and if he learned, as a lawyer, of these endorsements, he is bound to disclose it to them, and he is bound by what he learned as a lawyer; but if he knew it as president, they are not bound by it. A man may find out a thing as a lawyer, and Mr. Ellis may subsequently employ him about the same thing, and he ain’t bound to tell you, and you are not chargeable with his knowledge that he got Mr. Ellis when acting as Mr. Ellis’ lawyer. Therefore, if Mr. Eli Shorter was president of this company, and endorsed these bonds, then, if he got his knowledge that way, the Central Railroad is not bound by it.</p> <p>Look to the evidence and ascertain, first, whether, at the time this trade was made, inquiry was made of Papot about these debts; and while upon the subject of debts, I will charge that, although Barbour county may have issued these bonds, yet if they were endorsed by the Vicksburg and Brunswick Railroad Company, it was a debt of the Railroad Company just as much as it is a debt of Barbour county. In other words, if I make a note and Mr. Ellis endorses it, it is as much a debt of his as mine, and in making up a schedule of his debts, he is bound to put that endorsed note in it, because be is liable just as much as I am. Therefore, if this Vicksburg and Brunswick Railroad Company endorsed these bonds, it was just as much their debt as it was Barbour county’s. If TVadley bought this railroad for the purpose which he claims that he bought it, and it was sold under those endorsed bonds, and he lost the use and control of it, then it don’t matter, in this litigation, whether he can make it out of Barbour county or not. It is not a question here as to whether he can reimburse himself, but whether the warranty, or implied warranty, of Papot & C04 failed, whether he has lost the use and control of the railroad. Examine the evidence to see whether inquiries were made of Papot about the debts and liabilities of this railroad, and ascertain whether he said there are any debts or not from the evidence.; or if you find that he made no representations at all, ascertain what purpose TVadley had in buying this road, and if Papot knew his purpose; find if he knew that TVadley thought it free from debts and encumbrance, and whether he was asked about it or not, and if he remained silent, he cannot recover, because he is bound to disclose it if he knew that was what Wadley was purchasing it for.</p> <p>Now, the rule of law, gentlemen of the jury, is, that if the evidence is conflicting on this or any other point; if one man swears that he made certain inquiries, and the other says he did not, and the evidence is conflicting, the law says you must reconcile it if you can, so as to make it harmonize, and make each witness speak the truth; but if you cannot do that, you must look to the witnesses, their manner of testifying on the stand, the interest they have in the case, the bias or prejudice which they exhibit, if they show any, the means of knowing what they are testifying about, their recollection, the time that elapses, and all that sort of things, and you will give credit to that witness, or those witnesses, whom you think best entitled to it under all the facts disclosed in the evidence. Therefore, if this testimony is conflicting, and you cannot reconcile it, then you can look to all these circumstances as to which witness you will believe, and believe that one who is entitled to it from all the circumstances. That is true not only of this issue, but of the next issue also.</p> <p>The complainant claims forty-six shares, at the par value of $4,600, and if you should And for complainant, then he would he entitled to interest on thos3 shares from the time they ought to have been paid at the completion of the road, and you will say what the interest of the stock was at that time, and what it has borne since, and if you find the forty-six shares, of par value of $4,600.00, you will calculate the interest on $4,600.00 from the time it ought to have been paid up to the present, and your verdict in that case would be: We, the jury, find for complainant $4,600.00, with interest at such a rate per cent from a certain time. But, on the other hand, if you should And that the railroad has fully paid them, either in stock, or interest on stock, under the rules of law I have given you, and you find that Papot & Co. have the full number of shares, by money or interest, then your verdict would be: We, the jury, find for the defendant; or if you should find against the railroad, on the interest question, examine the representations made by Papot, as to whether he disclosed certain things; and if you find in favor of the railroad on that question, your verdict would be: We, the jury, find for the defendant.</p> <p>You can retire to your room, gentlemen.</p>

<p>Wills. Charge of Court. Before Judge Pottle. Floyd Superior Court. March Term, 1884.</p> <p>Reported in the decision,</p>

<p>1. No form is prescribed for an application for an exemption of personalty under §2040 et seg. of the Code, and it is not necessary to «et out in the application that the applicant is a debtor.</p> <p>(a.) The exemption now found in §2040 et seg. of the Code originated m the act of 1822, and lias now become a part of the constitution of 1877. '</p> <p>2. While an exemption set apart under §2040 et seq. of the Code is for the use of the wife and children of the debtor, and for a conversion of such property, they might have brought an action, the husband and father might also sue.</p> <p>(a.) If it were necessary for him to bring the suit for their use, the defect was amendable and was cured by verdict.</p> <p>3. Where certain persons levied an attachment on corn, which had been set apart as an exemption under §2040 et seq. of the Code, without any oath to subject it as for purchase money, seized it, carried it into another county and put it into their crib; and where they afterwards obtained judgment, had execution issued and levied upon it, and bought it themselves, no demand and refusal was necessary in order to recover against them in trover.</p> <p>4. Where the applicant for an exemption is the husband and father, it is not necessary to allege that the property is his.</p> <p>5. The entire proceedings of the defendants in trover to possess themselves of the com were illegal and tortious, and a verdict against them for its value was right.</p> <p>(a.) It appearing that the verdict gave more than the value of the corn per bushel proved, the excess above that value (seventy cents per bushel) is directed to be written off. ■</p> <p>6. The judge of the superior court having notified counsel in writing that he would hear the motion for new trial on the 17th, instead of the 15th of the month, unless one or both of them answered that it was objectionable, and no answer having been received, and both being present on the 17th, a motion to dismiss the writ of 1 error on that ground will be denied.</p>

<p>Practice in Supreme Court. Evidence. Certiorari' Amendment. Partnership. Promissory Notes. Title. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1884.</p> <p>Reported in the decision.</p>

<p>Landlord and Tenant. Practice in Superior Court. Estoppel. Evidence. Mes Adjudicate/,. Before Judge Stewart. Pike Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. An assignment by an insolvent debtor for the benefit of creditors was void, under the act of 1881, and conveyed no title, where no schedule or inventory was attached to the deed of assignment. 70 Ga., 298.</p> <p>2. Where purchasers bought from an assignee of insolvent debtors for the benefit of creditors, and such assignment was void, they • could not set up the purchase as being from him as a mere agent for the debtors.</p> <p>3. When purchasers under such an assignment were shown the deed of assignment, by virtue of which the assignee offered to sell, and failed to read it, they were charged with notice of their title from such assignee and that it was void, and they would not be innocent purchasers without notice. Such conduct was not mere lack of prudence, but was gross negligence.</p> <p>4. If the debt held by one claiming to be a mortgage creditor is honest and her lien superior, that issue may he tried on the distribution of the fund; if not a party, she can then be made one, and if the complainants have already paid her, they can recover it from her. The present decree is simply that the money be deposited in court, because the assignee had no title, and neither could nor did convey any to the purchasers from him. On rule or other proceedings to distribute the fund, all creditors can come in and be heard and all priorities be adjudicated.</p> <p>5. The verdict was required by the evidence.</p>

<p>It has not been made to appear to this court wherein the proceedings were irregular or contrary to law, by which the commissioners of Dougherty county were proceeding to condemn certain property for a public road to Flint river for the purpose of erecting a free bridge across the same.</p> <p>(a.) The commissioners had the right to employ counsel to aid them, and they were justified in so doing; nor were they thereby disqualified from determining whether the road and bridge sought to be established would be of public utility. Besides the fact of being a citizen and tax-payer, the complainant is'only interested to have .just compensation for the property taken from Mm, and the damage done to him by such taking of property and by the erection of the bridge. This compensation is to be determined by a jury, and not by the commissioners. Code, §§(337, 644.</p> <p>(b.) There has been as yet no damage done or threatened to be done to complainant of which he can complain. There is no equity in the bill, and an injunction was properly refused.</p>

<p>The facts in this case demanded the grant of an injunction, and not tephave granted it would have been error.</p>

<p>There was no abuse of discretion in granting a first new trial in this case, the court having rejected evidence which should have .been admitted.</p> <p>(a.) There was enough in the circumstances under which the plaintiffs received the paper in suit in this case to put an ordinarily prudent person upon inquiry, which, if it had been instituted and fairly prosecuted, might have led to the discovery of equities between the original parties that would have relieved the defendants from the liability growing out of the acceptance of the paper; and evidence to show such facts was admissible.</p> <p>(6.) Where a written contract does not purport to contain all the stipulations between the parties, parol evidence is admissible to prove other portions thereof not inconsistent with the writing. Code, §3803, and citations.</p>

<p>1. Where, on a bill involving the estate of a decedent, one party holding a claim against it was named as a cestui que trust of another, but upon a reference of the case to an auditor, the usee appeared himself, and proved his claim, which was allowed, and a consent decree, to which the executors of the estate were parties, was rendered in his favor for the amount of his claim, and in their favor for certain sums, on which, or some of which, execution was sued out by them, and the money thereon collected and paid to them, they were estopped from denying that he was a party to the bill and had the right to collect his part of the decree so consented to, in the same manner as they collected theirs. Therefore, an affidavit of illegality to an execution issued in his favor, on the ground that he was not a party, was bad.</p> <p>2. Where, after the issuance of execution, the plaintiff therein obtained a rule against the executors, to show cause why they did not pay the money, and this was resisted, the executors asserting that they had not realized out of the land from which it was decreed that the complainant should be paid, and were unable to do so, if he caused his execution to be levied, the pendency of the rule was no ground for an affidavit of illegality. The rule was ancillary to the execution, and might be used to collect the balance of the debt, in case the levy should not pay it all.</p> <p>[a.) The executors, having obtained a decree by consent to distribute and settle the estate, are trustees for all who are interested in that decree, and it is their duty to help such beneficiaries to obtain their money, and not to delay them.</p>

<p>1. The verdict is supported by the evidence.</p> <p>2. Where an iron press was sent by the vendor to the purchasers by a drayman, and the purchasers, or one of them, told tho drayman where to deposit it in their yard, which was done, this would amount to a delivery and reception of the property.</p> <p>3. That there had been an outstanding judgment which was a lien on the property sold, but which was paid off before a suit was brought and judgment rendered for the vendor against tho vendees, was no injury to the latter; and, if the contract of sale was as testified to by the vendor and found by the jury, the vendees were bound to pay</p> <p>4. If an iron press was agreed to be sold by the pound, and had to be weighed, the contract was executory; but if the price of the safe was fixed, and the delivery was perfect, the contract was executed. The plaintiff testified to the latter state of facts, and the jury so found.</p> <p>5. Although a press may have been levied on under a judgment against the holder, yet if it was left in his possession, and he was allowed to use it and to deliver it free from the incumbrance of the ■ judgment, by the attorney who was pressing the execution, and if by this arrangement the vendees under the defendant obtained a good title and possession free from the lien, thus extinguished before suit and verdict, they have no legal right to complain.</p> <p>(a.) If the price was fixed and the delivery complete, the statute of fráuds did not apply.</p>

<p>1. Where a decedent leaves a widow or minor children, or both, snch family is entitled to a year’s support from his estate; and a widow is not deprived of her right of year’s support because there are no minor children. 70 Ga., 733.</p> <p>2. Where the appraisers, appointed to set apart a year’s support, find that the estate is worth less than $500.00, the statute makes it their duty to set apart the whole; and the order of the ordinary, appointing such appraisers and stating that if the estate did not exceed $500.00 in value, they were “ authorized and directed ” to set apart the whole of it, was not objectionable on the ground that it deprived the appraisers of discretion in setting apart the year’s support. Code, §2571.</p>

<p>'There was sufficient evidence in this case to authorize a verdict of assault with intent to rape, and the refusal of a new trial was right.</p>

<p>Where a widow had set apart to her as a year’s support the entire estate of her deceased husband, consisting in part of realty and in part of personalty, and having consumed the entire personal estate, died, the title to the land vested the minor children of the deceased husband, and was not subject to sale by the administrator of the widow. Code, §§2574, 2576; 70 Ga., 796.</p>

<p>In 41 Ga., 225, it was held by a majority of tlie court, and in 54 Ga., 25, it was held by a full bench, that an action did not lie against a county for damages caused by neglect of the proper authorities to repair a bridge, it not appearing that it was a toll-bridge, or such a one as was built by a contractor, and that there was a failure to take the proper bond of indemnity required by such sections as were applicable to the subject. This ruling could not be reversed by a majority of the court, but only by the unanimous opinion of a fullbenah upon leave granted to review it; and the present bench, not being unanimous, the former ruling must stand. Code, §217.</p> <p>(a.) The decisions in 59 Ga., 833; 64 Id., 69, seem to have been made without any review of, or reference to, the former ruling of the court in 54 Ga., 25, above cited. In each of them also there was a dissenting opinion.</p> <p>|b.) Jackson, C. J., and Hall, J., are of the opinion that counties are liable for damages resulting from defective public bridges, wherever the proper authorities neglect the duties enjoined by law in reference to the building of public bridges or keeping them in repair; and they are not prepared to hold that there is anything in the constitution and laws which would prevent the enforcement of a judgment obtained on account of an injury resulting from such a failure of duty. Blandford, J., adheres to the ruling in 41 Ga., 225, and 54 Id., 25, and is of the opinion that, under the present constitution, there is no mode-of enforcing any judgment obtained against a county for damages.*</p>

<p>1. The original affidavit of illegality in this case to the foreclosure of the mortgage on a mule had nothing of substance in it on the proof. It had a plea of set-off of two dollars, which was allowed; and the affidavit that the defendants did not owe the amount foreclosed for simply meant that they did not owe that much of the fifty dollars foreclosed for.</p> <p>(«■ ) A mortgage is good it executed before the debt, to secure which it is given, is due.</p> <p>2. "Where a mortgage on a mule, signed by a husband and wife, was foreclosed, and an affidavit of illegality filed thereto, an amendment alleging that the wife of the debtor was the surety of her husband was valueless, unless it was also alleged that the mule was hers.</p> <p>(a.) The debt was fixed in amount by the note, and foreclosed for that sum. It was right that the parties to the note should pay it, and failing to do so, that the mortgaged property pay it under execution. There was no need to go back of the note and set out in the proceedings to foreclose what the account was on which it was founded.</p> <p>(6.) Besides, the writ of error was filed in the clerk’s office sixteen days after the judge’s certificate, and should have been dismissed, but that the rule of notice has not been complied with.</p> <p>(c.) The jurisdiction of this court is doubtful in such a case, and e judgment ought to be affirmed in any event, which is the effect of a dismissal.</p>

<p>Where the testimony on the trial o£ a possessory warrant case was conflicting, and on certiorari, the presiding judge refused to reverse the judgment of the justice, this 'court will not interfere, unless the judge abused his discretion.</p> <p>(a.) In this case, the presiding judge properly gave final direction to the case, leaving the property in possession of the party to whom the justice awarded it, on giving the bond required by law. Code, §§4040, 4035.</p>

<p>A bill alleged as follows: Complainant sold a horse to one who cultivated land as a tenant, and took a note payable in lint cotton on or before the 15th day of the succeeding October. The note stated that it was “ due next to land rent, agreed to by ” the landlord. This was witnessed by the landlord. The tenant made more on the land than the rent, and paid all of the cotton so raised to the landlord. The tenant is insolvent:</p> <p>Held, that there is equity in the bill, and a demurrer thereto was properly overruled.</p> <p>Blandfobd, J., dissenting.</p>

<p>If tlie relation of landlord and tenant existed at the date when an obligation for rent was incurred, the fact that such relation ceased before the landlord proceeded to enforce his claim by distress warrant, would not affect his right so to do, or render such proceeding illegal.</p>

<p>Chancery takes no part in the administration of the criminal law. It neither aids the criminal courts in the exercise of jurisdiction nor restrains or obstructs them, 53 Ga., 675; 61 Id., 386, 388; 71 Id., 106.</p>

<p>1. The Port Royal and Augusta Railway Company is a domestic corporation, created by the laws of this state. 72 Ga., 423.</p> <p>2. Service of garnishment on a domestic corporation, whose president resides in this state, must be upon the president, and cannot be effected upon a subordinate officer or agent, though the president be temporarily absent. 60 Ga., 552.</p>

<p>1. Where, to a suit in a justice’s court, the defendant pleaded a set-off, plaintiff could defend against such plea by showing that the claim on which it was based had been settled, without further pleadings for that purpose.</p> <p>(aO There are no pleadings in a justice’s court, except the, summons and a copy of the account, note or cause of action sued on; the defendant may plead any matter of defence which would be allowed to suits in the superior court, and there no special pleadings are admitted.</p> <p>2. The relief of a crop which was about to be levied on, and in which a person other than the debtor was interested, from the lien which he apprehended would be placed upon it, was a sufficient consideration for his promise to settle therefor.</p> <p>3. This writ of error being destitute of merit, and appearing to have been brought for delay only, ten per cent damages are awarded against the plaintiff in error.</p>

<p>1. Allhough, when the term commenced at which the rule nisi to foreclose a mortgage was taken, the debt, to secure which the mortgage was given, was not due, yet if, when the petition and rule nisi were presented, the debt had matured, and the rule nisi was served on the defendant more than three months before the next term, at which the money due on the mortgage was required to he paid; this is all that the mortgagee was entitled to. Code, §§3962, 3964; 20 Ga., 342; 18 Id., 277; 59 Id., 392.</p> <p>(a.) This question has never been referred to or decided by the court below, and for this reason can not he reviewed by this court. Code, §4251.</p> <p>3. This is a fair question to be brought before this court, and damages for frivolous exceptions should not he awarded.</p>

<p>There being no allegation of the insolvency of persons sought to be enjoined from committing a trespass, or other facts requiring equitable interference, an injunction should not have been granted,</p> <p>(a.) The./!. fa. sought to be enjoined was not for taxes, but was illegally issued against the husband of complainant, contrary to law and the ordinances of the city of Americus, because he had retailed spirituous liquors without license therein. Therefore the levy-was a trespass, a sale under it would be a trespass and void, the purchaser would acquire no title, and the municipal corporation would be liable to the true owner o,f the property for such trespass. Buj; the complainant has an ample common law rem- ,. edy.</p>

<p>It makes no difference who attests the certiorari bond, but it must be accepted and approved by the justice who tried the case. If the bond itself shows on its face its acceptance and approval by the justice who tried the case, it is sufficient, though there may be no certificate thereof; but the record must show somewhere that such justice did accept and approve the bond; otherwise the certiorari will he dismissed. Code, §4055; 64 Qa., 599; 70 Id., 523; 67 Id., 274.</p>

<p>1. Whether or not a mortgage executed in Alabama conveyed title, and whether or not it would be enforced in this state as title, the fact that such a mortgage was recorded in Alabama was no proof of its execution, on a trial in Georgia, and in the absence of other proof of execution, it was properly rejected from evidence 27 6a., 96</p> <p>2. Trover having been brought to recover a mule, and the plaintiff having shown no title in writing, and no possession by him, a non-suit was properly awarded.</p>

<p>The general superintendent of the Georgia Lumber and Turpentine - Company is the agent thereof; and where, in a proceeding to fore- - close a laborer’s lien under §1991, par. 1, of the Code, the affiant - averred that he demanded payment of the debt due him as a laborer of “ J. M. Stevens, general superintendent of the Georgia-Lumber and Turpentine Company, a corporation, and whose duty it was to settle with laborers in and around said saw-mill and tur- ' pentine works, and who, at the time of said demand, refused, and still'refuscs, to pay the same,” this was a sufficient allegation of demand “on the owner, agent or lessee” of the property, and a dimissal on demurrer was error. 58 Ga., 411.</p>

<p>Where, before the felonious taking of money by one person from another, the latter make's resistance, and the taking is not only without his consent, but against it, the crime is robbery, not larceny from the person. Code, §§4389, 4410, 4412; 12 Ga., 294; 66 2d., 167.</p>

<p>1. The verdict is supported by the evidence. Had death ensued, the offense would have been murder; death not resulting, it was assault with intent to murder.</p> <p>2. A ground of a motion for new trial which is not certified will not be considered by this court.</p> <p>(a.) Sayings of a person, made some days after being shot, detailing what he had done to defendant several days before the rencounter, and with no foundation laid to introduce them for purposes of impeachment, were inadmissible.</p> <p>0.) They were no part of the res gestee.</p>

<p>1. Under an indictment for stabbing, evidence of a distinct transaction between the prosecutor and the accused, sometime before the stabbing, was inadmissible to justify the offense.</p> <p>2. On an indictment for stabbing, the jury may find the defendant guilty of assault and battery.</p> <p>(a.) Decision in 25 Ga., 396, considered and approved.</p>

<p>The defendant being charged with adultery and fornication, the evidence submitted by the state was consistent with his innocence. There was no evidence of any improper conduct between the parties, nor were they shown to have been in such suspicious circumstances and under such conditions as to lead to the conclusion that the accused was guilty. A verdict of guilty was therefore not sustained by the evidence.</p>

<p>Where, a verdict having been found for the plaintiff, the presiding judge granted a new trial, and on exception thereto, this court refused to control his discretion and pronounced the case “ exceedingly weak,” and where, upon a second trial, the jury found, on the same facts, a verdict for the plaintiff larger by seven hundred dollars than it was before, the presiding judge did not abuse his discretion in granting a second new trial.</p> <p>(a.) It is the judgment granting a new trial to which exception is taken, and a reversal will not be granted, because the presiding .judge stated that, in his judgment, under the facts, there could be no recovery.</p>

<p>Where the municipal authorities of the city oí Americus were proceeding, under their charter, to try the question whether a certain mill-pond was a nuisance, it was error to grant an injunction restraining them from carrying their judgment into effect, in the event that they should determine that the pond was a nuisance.</p> <p>(a.) That a party fears a court will not obey the laws would hardly justify an injunction in the nature of a writ of prohibition to stop it from carrying its judgment into effect. Code, §3209 and citations.</p>

<p>Section 4438 of the Code, which provides a penalty for obstructing a railroad, includes a street railroad operated by horse-power, as well as a railroad on which the cars are drawn by a steam locomotive.</p>

<p>1. A judgment in ejectment is conclusive as to the title between the parties thereto, unless the jury find for the plaintiff less than the fe,e. In this case, the identical title now involved having been passed on in an ejectment case, a subsequent bill filed to enforce the rights of the plaintiff, which alleged all the former proceedings and other immaterial'facts, was without equity, and was properly dismissed on demurrer. Code, §3362.</p> <p>2. The matter involved in this caséis res adjudicate between the parties. Where plaintiffs were not ignorant of the facts now relied on Avhen the case was formerly before the court, but failed to make use of them, and were not prevented from doing so by accident or mistake, or by the fraud or act of their adversaries, a court of equity will not relieve them from a judgment which could have been prevented with proper diligence on their part.</p>

<p>1. Where, on a proceeding to foreclose a mortgage, the rule nisi, the rule absolute and execution set out that the debt was for purchase money, the defendant was concluded thereby.</p> <p>2. Where the mortgage, the rule nisi and the rule absolute all showed that the debt was within the exceptional class which could subject a homestead, and was for purchase money, an affidavit to that effect, under §2028 of the Code, was unnecessary.</p>

<p>An indictment was found at the-October term, 1883, of Sumter superior court, and was transferred to the county court. The defendant objected to being tried by the county judge, because the latter was interested in the costs due the clerk of the superior court, on account of the finding of said indictment, he having been an assist- . ant of such clerk, and, under an arrangement between them, being entitled to one-half the costs due the clerk thereon. An agreement was then produced, to the effect that, in all indictments found at said term of court and transferred to the county court, the county judge should have no interest in any manner, shape or form, but the costs thereon should belong to the clerk alone. This was dated February 5, 1884:</p> <p>Held, that although the county judge may not have had such an interest as would disqualify him, and may have been free from any corrupt conduct, yet the general countenance of the case is bad? and a new trial might be granted by this court, if the testimony was not clear and satisfactory that the accused was guilty.</p>

<p>Incases °£ foreclosure of mortgages,, the service must be personal, or by publication under Code, section 3962. Service by leaving a copy at the residence ot the defendant is not sufficient. Code, §§3962, 3339.</p> <p>2. Whore it appears on the face of the record that the mortgage foreclosed was made by a wife to pay the debt of her husband out of her property, and the rule nisi and rule absolute show the same facts, such a judgment may be set aside within three years, on motion. (Jackson, C. J., alone.*</p>

<p>The time when the motion for new trial in this case was made, and the reasons why it was not made in term, were considered when this case was before the Supreme Court at the September term. 1883, and it was held that the motion should be dismissed. This is now res adjudicata.</p> <p>(a.) The fact that counsel thought that the mode of moving for a new trial, when the motion could not be prepared at length and the brief of evidence be fully made out at the trial term, was different from what the law required, furnishes no ground for an extraordinary motion for new trial; nor does the fact that the judge who presided agreed with* counsel in this erroneous opinion, furnish ground for such a motion.</p> <p>(6.) It is unnecessary to consider the point made in regard to the presiding of the judge of the city court, as the two cases are practically the same, and both are covered by the former ruling of this court in this case.</p>

<p>In a suit by an employé against a railroad company for injuries inflicted by the negligence of a co-employé, it is incumbent upon the plaintiff to show that the injury was not the result of fault or negligence on his part. The question of negligence belongs peculiarly to the jury, and except in a clear case, Avhere there is no conflicting evidence as to whether the employé Avas in fault or was negligent, the court should not withhold the case from the jury by aAvarding a non-suit. Where the evidence upon this point was doubtful, it should have been submitted to the jury, and to grant a non-suit was error. 66 (?«., 170, 174, and citations.</p>

<p>This case, involving a claim to recover damages on account of the overflowing of lands lying on a stream below the city water-works, is similar, both in its facts and the law hearing on thém, to the case of Brown vs. The City of Atlanta, 66 Ga., 71, and is controlled by it.</p>

<p>A bill for the settlement of accounts and.to obtain specific performance of a contract respecting a lot with the building, thereon, is not a suit respecting the title to land. The proper venue of such a bill is the county of the residence of the substantial defendant; and the joining, as defendant, of two tenants of the real defendant, but without seeldng any relief against them, will not give jurisdiction in the county where the land lies. Code, §§4183, 5169; 34 Ga., 53; 50 Id., 288, 290; 37 Id., 346.</p> <p>(a.) "Want of jurisdiction in the county where the bill was filed appearing on its face, it should have been dismissed on demurrer.</p>

<p>1. The motion for a new trial should not have been dismissed. The facts show that the trouble arose out of sickness of the presiding judge. The movant and his counsel were not in laches.</p> <p>2. The first grant of a new trial on evidence not sufficient to sustain the amount of the verdict in the opinion of the court below, will, not be scrutinized by this court, or interfered with, unless there-be manifest abuse of discretion.</p> <p>(Head-notes by the court.)</p>

<p>1. There was no party defendant in Sumter county, where this suit was brought, against whom substantial relief was prayed; and on. this ground, the court properly dismissed the bill.</p> <p>2. Besides, the bill was wanting in equity, especially on the score of diligence in the complainant. Such laches equity does not favor.</p> <p>(Head-notes by the court.)</p>

<p>1. The judge of the superior court has discretion to grant or refuse a certiorari in all cases of conflicting evidence, as in a motion for a new trial, and where there has been no abuse of discretion, this court will not interfere.</p> <p>2. Evidence offered to show that there might have been a possibility of a worthless article, purchased by the plaintiff, entering into and depreciating the commodity for the price of which he sues, but which does not show that it formed a part of such commodity, and affords no reasonable or proper inference that such was the fact, was properly rejected.</p> <p>(Head-notesby the court.)</p>

<p>Held, that the service was too late.</p>

' Tax. Municipal Corporations. Constitutional Law. Contracts. Before Judge Cobb. City Court of Clarke County. January Term, 1885.

Officers. Notaries Public. ■ Assignments. Before Judge Hammond. Fulton Superior Court. September Term, 1884. Smith <fe Bondurant sued Rushing, Keller & Company and garnished Meador.

Contracts. Damages. Sales. Before Judge Eve. City Court of Richmond County. November Term, 1884. Wrenn, Whitehurst & Company sued Deveney, Hood & Company for a breach of contract, alleging, in brief, as follows : Plaintiffs contracted and sold to Thorne, Deveney & Company twelve Monarch baling presses, as shown by the following order: “Augusta, Ga., June 23, 1883. Messrs.

<p>Railroads. Damages. Negligence. Yerdict. New Trial. Before Judge Bower. Dougherty Superior Court-October Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. Where an indictment charged an assault with intent to murder hy using a weapon'likely to produce death, hut did not charge any heating or wounding, and the jury found the defendant guilty of assault and battery, if no objection was made to the verdict when it was returned into court, for want of allegations in the indictment to support it, and no motion was made to arrest the judgment for this reason, -and a new trial was not applied for on this specific ground, a reversal will not be granted by this court, on the general ground that the verdict is contrary to law.</p> <p>(a.) If the point had been raised at the proper time and in the proper manner, semble that it would not have been sustained, hut that the verdict would have been good, on ifae ground that the greater offense includes the less.</p> <p>2. Where two defendants, jointly indicted, elected to he tried jointly, and made no reservation of the right to testify for each other, as though they had severed and were tried separately, there was no error in refusing to allow the wife of one of the defendants to testify in favor of the other defendant then on trial. 1</p> <p>S. After haying been elected to he tried jointly, and after evidence had been heard on the trial, it was then too late for either of the ' defendants to demand a severance, and to insist upon the right to be tried severally.</p> <p>4. The evidence being conflicting as to the weapon used, the jury could believe the prosecutor in preference to the witness for the defendants.</p> <p>(a.) It is not indispensable to-prove the precise weapon set forth in the indictment. It is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injur)u</p> <p>5. There was no error in the charges excepted to, and the finding of the jury was extremely merciful to these defendants.</p>

<p>Corporations. Fraud. Equity. Stock and Stockholders. Parties. Jurisdiction. Venue. Before Judge Brown. Lumpkin Superior Court. October Term, 1884.</p> <p>Reported in the decision.</p>

<p>Hail, J., dissenting from the views of a majority of the court:</p> <p>1. Suit was brought against one railroad for an injury occurring on the line of another; service was perfected by serving the agent of the first road, at the station on the line of the second where the accident occurred, and the defendant appeared and pleaded to the merits; afterwards an amendment to the declaration was filed, alleging that the road on which the injury occurred was held and operated under lease by the defendant; no surprise was claimed, no continuance asked, and no plea to the sufficiency of the service of the declaration, as amended, filed, but at the trial objection was made to the amendment and the service :</p> <p>Held, that appearance and pleading to the merits waived service, and estopped the defendant from denying it; and as defendant has received notice and come into court, the object of service has been accomplished.</p> <p>(a.) Independently of this, the service was sufficient.</p> <p>2. An amendment alleging that the railroad, on the line of which an injury was received, was held under a lease, and operated by another railroad company, against which suit was brought, was properly allowed. »</p> <p>3. While it might have been sufficient to have alleged that the defendant controlled and operated the road where the injury occur- , red, without specifying the particular character of the agreement under which this was done, yet where the plaintiff alleged with needless particularity or unnecessary circumstances what was material and necessary, and what might have been stated more generally, plaintiff was required to prove the fact as alleged; and therefore, having alleged that one railroad operated another under a lease, it was necessary to prove the same.</p> <p>(a.) If incompetent testimony was admitted over objection, and without it the plaintiff could not recover, a non-suit should bo granted on motion, and if improperly refused, and a verdict was rende; ed for the plaintiff, a new trial should have been granted.</p> <p>(b.) Where it was alleged that one railroad was leased by another, and the evidence showed that the contract between them was in writing, it was not competent to show by parol that it was a lease.</p> <p>4. It was error to charge that, if one purchased a ticket from one point on the line of a railroad to another, “when the company issued that ticket, it undertook to safely transport the plaintiff to this point of destination, and it was incumbent upon it to exercise ordinary care and diligence, and that duty did not end until the plaintiff was safely landed on the ground at McBean ” (the point of destination,’. Such a charge was calculated to mislead the jury, and to lead them to think that, in addition to having called the station in the usual manner, and having stopped a sufficient length of time to enable the passenger to leave the train w’ith safety, it would also be incumbent on the conductor to assist her in landing.</p> <p>(a.) Ordinary care is not the measure of diligence required of a railroad company towards passengers, but extraordinary care.</p> <p>5. The court should have charged, as requested, that “ if the conductor went through the car and called the name of the station at the usual time and in the usual way, he had the right to expect that the passengers would act with the judgment and intelligence of human beings in moving out and taking care of themselves,” and should not have added the qualification, “ provided the agents of the company were in full discharge of their duty.” The request stated the law correctly, but the qualification greatly impaired, if it did not destroy, its effect.</p> <p>(a.) The newly discovered evidence in this case renders the propriety of a new trial more apparent.</p> <p>(6.) The majority of the court differ from these views.</p> <p>Jackson, C. J., concurring, and stating the views of a majority of the court:</p> <p>1. The fact of the lease could be proved without producing the writing. Nothing in the writing could prevent the liability of the actual carrier, holding itself out to the public as such, if it were negligent, whatever might be its effect as to ultimate liability between the parties thereto.</p> <p>2. Suit having been brought for an injury which occurred at a railroad station, alleged to have been caused by the sudden jerking of the train while a passenger was in the act of landing, without giving her a reasonable opportunity to do so in safety, there was no error in charging to the efiect that the liability of the carrier begins at the starting point, and does not end until the passenger lands in safety.</p> <p>(a.) The court did not charge or intimate that it was the duty of the conductor to help the woman injured in this case from the car.</p> <p>3. There was no error in adding the qualification to the effect that the servants or agents of the company must not be at fault, though the conductor was not bound to help women from the cars.</p> <p>4 The newly discovered evidence in this case being only cumulative and impeaching in its character, and the presiding judge having refused a new trial, this court will not grant a reversal.</p> <p>5. Conflict of evidence is for the jury, and when they have settled it, and the presiding judge approves the finding, this court will not interfere.</p>

<p>1. One question in the case being whether goods,had been furnished to a third party on the credit of the defendant, or whether the defendant was a mere surety of the third party, without any written contract, there was'no error in allowing the vendors to testify to whom the credit was given, they having stated at the same time all the circumstances attending the transaction.</p> <p>2. If the effect of an arrangement between the defendant and the vendors of goods was an agreement that the defendant would be responsible or would pay for goods to be sold by the vendors to a third person, and for which such third person also was to be responsible, then the defendant would be a surety for him, and the contract not being in writing, would be void and not binding on the defendant.</p> <p>(a.) The finding of the jury on this question was supported, if not required, by the evidence.</p> <p>B. Where a banking corporation acquires possession of property, either by a lien .thereon or by the purchase of the same, for the payment of a debt due to it, and expends money on it, or furnishes supplies either for its preservation or to carry on the business in which such property is employed, with a view to rendering it productive, in order to satisfy the debt the bank holds against the former owner of the property, it is not chargeable with exceeding its corporate powers by engaging in a business beyond the scope and purpose of its creation.</p> <p>(a.) Whether the bank' used its power of collecting its debts as a pretext for embarking in a business foreign to that for which it was created and which it was authorized to conduct, or whether it made a proper use of it in furtherance of its legitimate business, was fairly submitted to the jury, and their verdict is upheld by the evidence.</p> <p>4. Ho who alleges error must show error. He must plainly specify, not only the decision complained of, but must, with like particularity, allege the error claimed to exist therein. A general and uncertain suggestion in argument of errors in calculation will not cause a reversal.</p>

Motion in Arrest of Judgment. Motion to set aside Judgment. Judgments. Pleadings. Before-Judge Simmons. Bibb Superior Court. October Term, 1884.

<p>Interest and Usury. Judgments, Estoppel Debtor and Creditor. Deeds. Before Judge Willis. Talbot Superior Court.' September Term, 1884.</p> <p>Reported in the decision.</p>

Deeds. Estates. Title. Tenants in Common. Words1 and Phrases. Before Judge Hammond. Fulton Superior. Court. October Term, 1884. To the report contained in the decision, it is only neces-sary to add that the form of action was complaint for land; that the case was submitted to the presiding judge upon an agreed statement of facts; and that from his decision, exception was taken by defendant.

<p>Evidence. Witness. ' Roads and Bridges. Negligence. Notice. Charge of Court. Before Judge Bower. Dougherty Superior Court. October Term, 1884.</p> <p>On November 8th, 1870, Taliaferro Jones brought an action against Nelson Tift for $50,000, resulting, as he claimed, from his falling from Tift’s toll-bridge, a distance of twenty-eight feet, while the bridge was torn up for repairs, he having paid toll to cross while the bridge was in that condition, and exercising ordinary care, and his fall resulting from a want of proper care on the part of Tift.</p> <p>To this action Tift pleaded: (1.) That at the time of the injury complained of, his bridge was torn up, undergoing repairs ; that the collection of tolls had been suspended, and it was not at that time a toll-bridge. (2.) That the injuries were caused by the gross negligence of Jones, and not by a want of proper care on the part of Tift, because the bridge was torn up for about thirty feet in length, and a distance of about twenty-eight feet in height, for repairs, leaving for the use of the hands doing the repairs, a narrow gangway on which to pass, and over which Jones undertook to cross. (3.) That it was negligence for Jones to undertake to cross said bridge in the condition in which he was.</p> <p>It is unnecessary to detail tho evidence in full. The testimony of the plaintiff and defendant will serve to sho^ their respective contentions.</p> <p>The plaintiff, sworn as a witness for himself, in substance, said: On the morning of the 24th of March, 1870, I came over the bridge, and paid fifty cents in fractional currency for coming over and returning in the evening: I got back to the bridge with my daughter and her little child between 12 and 1 o’clock. Joiner, the bridge-keeper, tóld me I could not cross then in my buggy, in which I came over, but that I could cross in about two hours. He invited my daughter to spend the time with his wife. I came back at the time indicated, and Joiner told me I could not cross until about sunset. I came back about'the last time appointed, or a little before. Joiner told me he had put my daughter and her child over, and they would wait for me on the other side. This was done without my knowledge. He told me I must leave my horse and buggy and walk over. When I returned to the bridge again, it was after sunset. F. A. Tharp was with me. On my first visits-down there, I did not go further than the bridge-house, one hundred yards from entrance to the bridge. The last time, Tharp and myself went on down to the chasm. I saw it, and it was .a fearful looking place. I was unwilling to risk myself on the plank laid to cross over it, and knowing I had paid my money to cross the bridge, 1 demanded of Tift to have more planks put down-He did nothing, and five or ten minutes later, I called louder and more earnestly for more planks to be put down. I waited again, and he did nothing, and I called the third time. Tharp then said he would go and press; my claim personally. He went and approached Tift. After Tharp spoke to him, he said, come on, that young man will assist you. I suppose Tift referred to a young man by the name of Smith near me. I looked and reflected a moment, and ■ thought that was the best I could get, which made it obligatory for me to go on. I walked slowly and carefully on the plank to cross the chasm. East end of the plank was raised three or four feet high, and three planks lying across the elevated ends. Before I reached this elevated end, I saw in front of me the flooring of the bridge intact. I thought when I reached the platform it was a place of safety. Tift was near by, and I addressed him, remonstrating against his manner. I think I said, “You care but little what becomes of the people, so you get their money.” He replied, “When you saw nobody would stop, assist or sympathize with jtou, you came over all right.” That was about what he stated. Seeing the flooring, as before stated,' Tift standing on it, I felt perfectly at ease on the elevated platform; but in descending from there, the timbers moved, or my foot slipped, and I fell back on my haunches, and that was the last I remember. I did not fall back of the three planks. My opinion is, I fell under the elevated ends of the timbers, under which there must have been an opening. I did not see any hole under-me while on the elevated place — nothing obstructed the view under the three planks that I saw. I could not see through or under the three planks. I saw some sleepers or timbers under them. I saw no one crossing there but Tharp and myself. We lived on the other side of the river. It was two or three weeks after I fell before I was conscious of anything that passed, and then I was utterly helpless, suffering intensely from the .injuries. (He then described the nature and extent of his injury and the amount of loss entailed thereby.) If my daughter and her child had not been put over, I guess I would have staid in town all night. I should not have gone across the bridge. I wanted to take care of my daughter and her helpless child. She had no way to get home except to walk. She had no one to protect her. No one warned .me of the hole I fell through; if they had, I could have leaped or stepped over it. It was between sundown and dark A person going out of a light place into a dark one, the darkness is increased. I presume Tift, as he was working there, knew of the hole. Plank six feet long, laid from the elevated sleepers to the bridge floor, would have made it a safe descent, which Tift could have done in a short time, as he had plenty of plank there. If he had. said, “Jones, you are not safe yet,” I could easily have leaped over the holes. He told me, as no one sympa-. thized with me, I came over safe, but said nothing of my being in danger, or that there was a hole under me, or it would not have occurred. I fell about thirty feet. I was not looking for or expecting any danger when I fell, as I had passed what I thought the danger, to the platform, and could see the flooring ahead of me. Tharp crossed the chasm as I did. The planks had been torn up from the sleepers, and one plank laid across that chasm. 1 had been drinking some that day, and was well aware of it at the time I got to the bridge, but it did not keep me from seeing threatening danger or being cautious. I saw'the danger of walking one 'plank, and thought I had better not take the risk.’ That is why I called so earnestly and demanded more plank, I did not wish to take any risk. The drinking I had done did not make me stagger or deprive me of reason. It made me more cautious. I revolved in my mind that I had been drinking freely, and had better take no risk. Ho not think my drinking affected me one way or the other as to crossing, and had nothing to do with my falling. Nelson Tift owned the bridge, and it has been a toll-bridge since 1858. No other way to cross the river there. No one told me or warned me not to cross. Tift and Joiner both told me to come on. If I had been notified not to cross, I would not have done so.</p> <p>Gross-examined: I paid toll early in the morning, while the bridge was apparently safe, for my buggy to come over and return. It was torn up when I went to go back,' and one plank run across the torn up place, supported by an occasional plank across the sleepers. The torn-up place was 20 feet high at one end and 30 at the other. I saw it was a very dangerous place. I suppose I was six feet from the end of the elevated sleepers, when I saw the floor of (he bHdge intact, up to the edge of the platform. • Don’t know, but didn't think any of the flooring east of the elevated sleepers was torn up. I do not think I stepped down without looking where I was going. I looked, down when I stepped. In answer to the question, “Didn’t you step down at the time you were looking at Tift and talking to him?” he answered, “We had been talking.” I don’t know that when I went to get down that my face was turned towards Tift. I was looking to see where I was going. I had a bottle of whisky. It was a fearful, dangerous looking place. My daughter had come and gone to school the same route she was on without being harmed. I know of no pressing danger that required me to go on. It was my anxiety for herself and her child. Joiner may have told me she would wait forme at John R. Hill’s or go on home. Think I swore on a former trial that I would have staid in Albany if my daughter had not been put over. Deny that I swore so on the direct examination now, and want to qualify it if I did. After she was put over, I wanted to go too. If I had been warned not to go before my daughter went over, I would not have gone. Do not know what I would haveMone after she had gone, if warned not to go.</p> <p>Nelson Tift, sworn, in substance, said: On 24th of March, 1870, Joiner, my bridge-keeper, notified me that the sill on which rested the east ends of the sleepers of the first trestle west of the covered bridge was giving way. I at once went, hired hands, a young man named Smith working with me, and went to work. The sill had to be replaced with a new one. In order to do this, we had to remove the flooring from the sleepers and raise the ends of the sleepers almost two feet off the sill, — they were very heavy, and 28 or 30 feet long, and 14 by 6 inches, and flooring 2 inches thick, — and keep them there by a piece run under them, which we rested in the lattice of the bridge. We had also to take up part of the flooring on'the covered side and slip the sleepers off said sill. A few plank were laid across the sleepers of the trestle — a plank across them running parallel with the sleepers for the hands to cross on. All this had to be done in order to do the work. We then took the old sill out and let it down to the ground, and raised the new one up from the ground below, which was about 28 feet. This sill was fitted into the lattice part. I worked at it until Jones fell, and was on the north side at the time, fitting the sill in. Persons were standing on either side the chasm ail day, asking questions as to when they could cross. I told them I did not know, that I was working as fast as I could, and hoped to be done by night. I heard Jones, sometime before he.fell, talking quite loud at the west end of 1he trestle. I paid no attention to him or any one else, except as to when they would cross. I was trying to get the bridge fixed so the people could cross. I told them we W'ould get through as soon as we could. While at work fixing the sill in, I saw Jones about half way the chasm, on the gang-plank, coming. From his previously loud talking, I was afraid he was not in a condition to walk it. I watched him until he got to what ought to have been a place of safety1-. He came to the edge of the trestle and stepped on one of the planks placed for the workmen to stand on and work. He turned around to the crowd he had left, who, it seems, had been warning him not to come, and made some boasting x’emark about’crossing. I made some coxigratulatory remark. I felt for him. Any man with ordinary care could have crossed it. He turned and stepped in the hole between the planks. I was very much shocked. A negro was near him. Smith was nearer than I. We raxx around to him, and by rubbing and putting water'ixx his face, finally got him to breathe. We carried him to the hotel. As soon as we began to take up the bridge, I told Joiner to put xxp the toll-book, and that we would not collect any toll until the bridge was fixed, and to help us fix it. There was xxo toll charged to, nor collected of, anybody while the repairs were going on. If any such thing was done, it was against my orders. ’ PexJsons did cross over the chasm as the workmen did, axxd men with ordinary care could do so . safely. I crossed it, and I suppose fifty or a hundred others did, without injury. Any one with ordinary care could have passed over where Jones fell, without injury. It was impossible to do the work to be done without tearing up as we did, as the whole trestle rested on the sill, besides the timbers from the covered bridge, from which we had to remove the flooring from four to six planks in order to get to the sill, and some plank laid over that for the workmen to stand on. The bridge sleepers were not as large as the trestle sleepers, and we slipped them back off the sill. I think Jones fell a little before sunset. Nothing to prevent Jones from seeing the hole he fell through. It was a perfectly plain, open place. No concealment of it whatever. It could not have been concealed, if he had looked to see. One or two planks were on the sleepers for the workmen to get timber to work on the bridge. Buggies were charged 25 cents for crossing the bridge. None crossed or were authorized to do so while it was torn up. No one passed it by my consent when torn up, except the hands. I think Jones fell within one step of the solid flooring. I made no provision for the public to cross while the bridge was torn up, and warned' all that approached that there would be no crossing until the repairs were finished.</p> <p>Cross-examined: The sleepers must have been elevated clear of the floor about two feet. Jones could have stepped down from the sleepers to the piece they rested on, and from there to the plank on the sleepers. I do not remember Tharp coming to me. He was on the same side with me when Jones fell. I could see under the elevated sleepers. A man on the plank, on top of them, could not. There was a hole where the sill was taken out. Do not remember who passed over. It was 10 or 11 o’clock in the morning when I went to work on it. I suppose Joiner could have collected toll without my knowing it. When Jones got down off the raised sleepers, he turned around and addressed the crowd, as before stated, and the hole he fell through was still in front of'him, oast about four feet from raised sleepers, on the south side of the bridge. Do not remember that Jones spoke to me. I congratulated him after he spoke to the crowd. Do not remember how many planks were laid over the torn-up part east of the raised sleepers — enough for the hands to pass on. Plank twenty feet long would have reached from raised sleepers away off on the bridge floor, and they could have been put there in a minute or two and made it safe to get down on, but they would have made me quit my work. If a man had fallen back under the raised sleepers, he would have struck the timbers, and I doubt his being able to fall under there. I did not tell Jones to look .out, therb was a hole in front of him. I had no conversation with him, and did not tell him not to cross. I did not tell Jenkins not to cross. I only stated generally there would be no crossing until the bridge was finished. Cannot remember the names of the crowd Jones addressed, except Smith.</p> <p>Be-direet: It was necessary to tear up the bridge and put in a new sill for my own and the public safety. Any one could easily step down -off the elevated end of the sleepers by stepping down on the pieece that supported them, and from there to the plank on the covered bridge sleepers. Jones fell before sundown,-and there was nothing to conceal the hole he fell through from him. I know from observation that plank torn up in the bridge showed plainly. *</p> <p>Be-erossed: There were two or three planks scattered over the torn up place in the bridge for the use of the hands that worked on it, and I think from one to two feet apart. Can’t remember exact distance. They may have been sometimes more, sometimes less. Jones fell on the south side.</p> <p>The plaintiff as re-introduced, and, in substance, said: As I stepped down from the elevated plank to the flooring, my foot or the timbers or something slipped, and I fell back on my haunches. I could not have fallen from where Tiffc says I did. I don’t think it was possible. I fell through with a looseness. Tift did not tell me to wait, he would put more plank. He paid no attention to it. I remember seeing nobody but Tharp and Smith.' I have no recollection that I turned around and addressed any one. I addressed my remarks to Tift and no one else.</p> <p>The jury found for the plaintiff $ 10,000.00. The defendant moved for a new trial, on numerous grounds, the substance of which is sufficiently stated in the decision. The motion was overruled, and defendant excepted.</p>

<p>1. An equitable plea to an action of ejectment alleged that the plaintiff had purchased the lands at sheriff’s sale, and contracted in writing to make a deed to part of it to the defendants upon the making of certain payments; that the amount had been more than paid by sale of part of the land; and that the plaintiff should pay them the balance, and make them a title to the remainder of the land. The contract under which defendants claimed provided that, upon the payment of a certain promissory note in four installments, the last “ on the first of January-, 1877, the balance due on said note, with any other indebtedness to me or to T. C. & D. L. Tur- ' ner,” in consideration of ten dollars paid by the wife of the defendant in the execution under which the plaintiff in ejectment bought,' he^would make to her, for the use and benefit of herself and children, titles to the land, or so much of it as should be unsold at that time and not necessary to be sold to pay “the above considera tion.” On this contract, bearing the same date with it, and signed by the obligor therein, was an entry stating that he held certain executions against the husband and father of the beneficiaries under the contract, which he would not enforce against him, but would hold for the protection of the wife. Subsequently there was another entry, stating the sale of four hundred acres for $2,400.00, and that, after paying a debt to one Deveraux and other indebtedness to himself, as appeared from his book accounts, a balance of $1,788.53 was left as a credit on the note:</p> <p>Held, that, under an equitable construction of the words in the contract, “ all other indebtedness to me or to T. C. & D. L. Turner,” they included the indebtedness of the wife and children made after the death of the husband and father, and whatever was incurred by them to the maker of the obligation or to T. C. & D. L. Turner for things necessary for the family, might well be included therein.</p> <p>(a.) At least paról evidence was admissible to explain any ambiguity on this subject; and it was error to reject testimony to show debts for necessaries for the family, incurred after the death of the husband, to the parties named in the contract.</p> <p>2. If the Devereaux debt was such a one as could subject the land, and as could not be defeated by the executions in the hands of obligor, it ought to have been paid; but not being in the agreement, it could not be brought within it by the consent of the wife; nor could a new contract be made by her, binding upon her cestuis que trust, equally interested with herself, to pay it.</p> <p>(a.) The entry in respect to the Devereaux debt was admissible as an admission of the wife, being on the paper in her possession and on which she relies; but it would be useless, unless that debt were shown to be superior in dignity to the sheriff’s deed and the judgment under which it was made.</p> <p>3. The entry made on the same day with the obligation, and signed by the obligor at the same time, must have been made before delivery of the obligation on which it was made, and was admissible.</p>

<p>Witness. Administrators and Executors. Contracts. Before Judge Bower. Dougherty Superior Court. October Term, 1884.</p> <p>Reported in the decision.</p>

'Injunction and Receiver. Equity. Practice in Superior Court. Laws. Insolvency. Debtor and Creditor. Before Judge Hammond. Fulton County. At Chambers. February 10,1885. The Knoxville Iron Company brought their bill for injunction and receiver against Wilkins, Post & Company et al., alleging that the copartnership was a firm of insolvent traders. The bill was sworn to on January 23, 3 8S5, and was marked filed in office on that day.

<p>1. There was no error in refusing to dismiss the motion for new trial in this case. The facts do not show laches in the movant to such a degree as to demand its dismissal.</p> <p>(a.) Even if the motion for new trial should have been dismissed for laches in the movant, yet here the new trial was refused on terms, and the respondents in the motion acted on the judgment, and ratified it by voluntarily writing off the interest, as required by the terms imposed.</p> <p>2. Where a buyer agrees to purchase personal property from a seller and pay a certain price for it, and then refuses to take it and pay for it, the seller may keep it as his own, and recover the difference between the market price at the time and place of delivery and the contract price, as the measure of damages.</p> <p>3. The case is not within the statute of frauds. The contract is recognized in many letters of the defendant, and was partly performed.</p> <p>4. The jury having found for the plaintiff in respect to the quality of the oil involved in controversy — that it came up to the standard agreed upon by the parties, there being evidence io sustain the finding, and the court below having approved it, this court will not interfere.</p> <p>5. There was no error in refusing to force plaintiff to elect one or the other of the counts or to grant a non-suit.</p> <p>6. There was no error in putting the burden on the buyer to show that the oil did not come up to the standard fixed in the contract, of being prime oil, after its acceptance by the buyer.</p> <p>7. If the buyer, after testin'? the oil, made no immediate objection to it, but continued to exercise acts of ownership over it, such as insuring it or offering to mortgage it, such acts would, after examination, amount to an acceptance at the contract price.</p> <p>8. There was no error in charging that, after the goods had been delivered and a portion sold by the buyer, he could not rescind the contract, but would be liable for the value of the goods. And this principle was applicable to a case where the buyer agreed to take all the oil manufactured during the season and receive it at the seller’s warehouse in parcels, and did receive some parcels, and then refused to receive the balance, when tendered in good quality and quantity according to the contract.</p> <p>9. The requests to charge, so far as they are applicable to the facts and bear upon the law of this case, appear to be embraced in the general charge; and the law of the entire case was submitted in that charge fairly and fully to the jury.</p>

Practice in Supreme Court. Railroads. Corporations. Actions. Partnership. Torts. Laws. Before . Judge Clarke. Olay Superior Court. September Term, 1884. Gunn brought his action of trespass on the case in Clay superior court, for a personal injury caused by the careless running of a boat on which he was a passenger, whereby the boat was wrecked and he was injured.

<p>A. scire facias to revive a judgment is not an original suit, but is a continuation of another suit, and is to be brought in the court where the judgment was rendered. All the parties to the original judgment must be parties to the proceeding to renew or revive it, and if one of them has removed from the state, he should be made a party and served by publication. The whole judgment must be revived, and not a part of it.</p>

Criminal Law. ' Evidence. Municipal Corporations. Lewdness. Night-walking. Before Judge Lawson. Baldwin County. At Chambers. December 29, 1884. To the report contained in the decision, it is only necessary to add that the grounds of error alleged in the certiorari were as follows: (1), (2.) Because the finding of the council was contrary to .law and evidence.

<p>Ejectment. Title. Actions. Damages. Water Courses. Before Judge Brown. Lumpkin Superior Court. October Term, 1884.</p> <p>Reported in the decision.</p>

Wills. Estates. Life Estate. Trusts and Trustees. Levy and Sale. Before Judge Carswell. Washington Superior Court. September Term, 1884. To the report contained in the decision, it is only necessary to add that a fi. fa. against Almira J. Paradise was levied on her life estate in certain lands.

<p>Attachment. Levy and Sale. Justice Courts. Before Judge Bower. Mitchell Superior Court. November Term, 1884.</p> <p>Reported in the decision.</p>

<p>Estoppel. Title. Wills. Trusts and Trustees. Before Judge Pottle. Towns Superior Court. September Term, 1884.</p> <p>Reported in the decision.</p>

<p>Receivers. Master in Chancery. New Trial. Before Judge Hammond. Fulton Superior Court. March Term, 1884.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. Evidence. Yer-dict. Before Judge Roney. Richmond ^Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

Practice in Superior Court. Equity. Cross-bills. Administrators and Executors. Statute of Limitations. Admissions. Before W. I. Pike, Esq., Judge pro hac vice. Habersham Superior Court.

<p>Guardian and Ward. Jurisdiction. Courts. Comity of States. Before Judge Fort. Sumter Superior Court. April Term, 1884.</p> <p>Reported in the decision.</p>

<p>Homestead. Evidence. Sales. Vendor and Purchaser. Estoppel. Set-off. Before Judge Mershon. Clinch Superior Court. October Term, 1884.</p> <p>Reported in the decision.</p>

<p>Assignments. Fraud. Debtor and Creditor. Injunction and Receiver. Before Judge Simmons. Bibb County. At Chambers. December 22, 1884.</p> <p>Reported in the decision.</p>

<p>Vendor and Purchaser. Debtor and Creditor. Homestead. Before Judge Pottle. Hancock Superior Court.' October Term, 1884.</p> <p>Reported in the decision.</p>

<p>Where an action was brought against a railroad company, alleging that an infant had been seriously injured through the negligence of the defendant’s servants in not locking or securing a turn-table, a plea which admitted that the child was injured by a turn-table belonging to and used by defendant at the time and place alleged in the declaration, but denied that the defendant was at fault or negligent, was not a plea of justification. To constitute a plea of justification, tho facts alleged must be such as are not admissible-under the plea of the general issue.</p> <p>(a.) The right to open apd conclude to the jury is an important right, and an improper denial of it will work a reversal.</p>

<p>An attachment was issued against a non-resident debtor, and a summons of garnishment served on the East Tennessee, Virginia and Georgia Bailroad Company by serving a station agent in this state. The answer to tho summons showed that the corporation acted under charters from each of the states through which its road passes and in which it transacts business, and that it was indebted to the defendant in attachment for wages as a day laborer, working for it in the state of Tennessee, whore he resided and where it conducted its operations ; that by the laws of that state, the amount of wages duo to him was exempt from the payment of his debts; that ho had sued it for this amount in the state of Tennessee, and though the garnishment was pleaded as a defence, had recovered judgment against it. Tho answer denied any indebtedness in this state to the defendant, or that he had over rendered any service to the corporation here, or that it had any effects of his, etc.:</p> <p>Held, that, under this answer, the debtor has neither effects nor a debt due to him from the garnishee in this state; nor has he any effects on which an attachment could be levied or to which the jurisdiction of the courts of this state could attach.</p> <p>(a.) This case differs from that of Kyle & Go. vs. Montgomery etal. 73 Ga., 337.</p>

<p>1. Where one borrowed money from bank, purchased land therewith, sold the same, giving bond for titles and taking the note of his vendee payable to his order, and subsequently deposited with the bank, as collateral security for his debt, this note (without endorsement) and the deed which he had taken to himself, the bank stood in the position cf a purchaser of the noto, and its equity to hold the land subject for the loan was superior to the lien of any judgment rendered against its debtor after the deposit of the note and deed as collateral.</p> <p>It makes no difference whether the subsequent judgment creditor had notice of this equity or not. His lien did not attach until the rendition of the judgment, and at that time the equitable title to the note and deed was in the bank, although the dry legal title remained in the debtor until, by subsequent decree, it was vested in the bank.</p>

<p>Statute of Limitations. Mutual Accounts. Before Judge Simmons. Houston Superior Court. April Term, 1834.</p> <p>Reported in the decision.</p>

Municipal Corporations. Sewers. Nuisance. Damages. Injunction. Eminent Domain. Constitutional Law. Tliomasville. Before Judge Hansell. Thomas County. At Chambers. February 5, 1885. Butler filed his bill to enjoin the municipal authorities of Tliomasville from laying a sewer, from which it was proposed to discharge and empty into a branch on his land the sewage of two large hotels and other buildings.

<p>Administrators and Executors. Evidence.' Banks. Corporations. Witness. Before Judge Pain. Bartow Superior Court. July Term, 1884.</p> <p>To the report Contained in the decision, it is only necessary to add the' grounds of the motion for new trial, which were as follows:</p> <p>(1.) Because the court refused to permit the defendant to prove that, while Gray was Tumlin’s administrator, he admitted that the defendant owed nothing to the estate on the subject matter of this suit, defendant also offering to-prove the naked fact of such admission. [The court added’ to this ground the following note: “ Gray stated that, upon or after investigation, his mind came to a conclusion as to-the validity of this debt. Plaintiff’s counsel objected to his stating what conclusion his mind came to, and the' court held that he could not give his conclusion or opinion,, but that he could state any facts from which he formed his opinion, and excluded no admission independently.”]'</p> <p>(2.) Because the court refused to permit a witness to testify that, as cashier of defendant, the witness (Peacock) and' Tumlin made a trade by which the draft mentioned in the-receipt of the cashier, attached to the declaration as an-exhibit, was purchased from Tumlin by the defendant and paid for, — Tumlin’s death, and the witness’s acting for the-bank in the trade being proved, and it being also proved that-the witness had no stock in the bank, and was not interested in it in any way at the time of the trial, nor did he-ever have any interest in the result of this suit; that this trade occurred in 1873, after the date of his letter to Tumlinsetoutinthe declaration; that the bank suspended inl876,. and had done no business since; that Peacock was, when the trade was made, and has been continuously from the organization of the bank until Tümlin’s death, the latter’s confidential agent and adviser and the custodian of his choses in action,-and in this trade made the figures for' Tumlin; and Tumlin acted on his advice, and with his assistance, in making this trade, — the bank’s officers, when-Peacock was employed by it, and ever since, knowing of his - agency for Tumlin. Defendant offered also to prove by said Peacock that the terms of this trade were, that the-bank paid Tumlin $2,500 cash for this draft, and was to pay him the sum of $1,547.80 as soon as collected from Stiles, and that this should be in full payment for the draft, which then belonged to the bank. This also was excluded by the court. [The court added the following note: “Peacock (the witness) testified that he had no interest at the time of the trial; did not say he had none when he made contract with Tumlin.”]</p> <p>(3.) Because the court admitted in evidence a letter from Tumlin to the cashier of the bank. — The objection was that the paper admitted did not correspond with the copy annexed to the declaration, and that its execution was not proved. [The paper offered in evidence was dated August 25,1873. It stated, “ I have received your draft,” etc. It was not signed, as was the paper sued on, but on its back was endorsed, “ Acknowledged. D. W. Peacock, cashier.” The copy paper sued on was dated Aug. 25. 1876, though it was described in the declaration as dated Aug. 25,1873.] It stated “I have renewed your draft,” etc.</p> <p>(4.) Because the court refused to allow the defendant to -prove that a deposit check, made by the cashier of the bank at the time of the trade with Tumlin, and shown to be lost, showed $2,500 paid to Tumlin at the time of the trade.</p> <p>- (5.) Because the court refused to allow the defendant to prove that Gray, the former administrator, abandoned the suit because he concluded that the debt claimed was paid. [The court added the following note: “A. P. Wofford swore, and it was not objected to, that after they talked with Peacock (the cashier), Gray told Peacock he would not ■prosecute the case any further.”]</p> <p>(6.) Because the court refused to permit defendant to prove that Lewis Tumlin was a good business man, close and active in managing his business, a close collector, and looked carefully after his business.</p> <p>(7.) Because the court refused to allow Peacock to testify that the $2,500 paid Tumlin was not charged on the bank books, because at the time it was paid another customer paid into the bank $2,500, wh'ich balanced the $2,500 paid Tumlin, and thus made no difference in the daily cash balances, nor in the loans and discounts balances.</p> <p>(8.) Because the verdict is contrary to law and evidence, and without evidence to support it.</p> <p>The motion was overruled, and the defendant excepted.</p>

Contracts. Bond for ■ Titles. Vendor and Purchaser. Damages. Words and Phrases. Before Judge Hammond. Clayton Superior Court. September Term, 1884. To the report contained in the decision, it is only necessary to add the following: The contract of sale on which this suit was based stated that Irwin had contracted to sell to Askew certain described land for $700.00, of which $350.00 was to be paid January 1,1883, and $350.00 January 1,1884.

Ne.w Trial. Practice in Superior Court. Laches. Witness. Evidence. Before Judge Willis. Talbot Superior Court. September Term, 1884. Gamble brought suit against the Central Railroad to recover damages for a personal injury resulting from one of its trains, on which he was a passenger, running off the track. He recovered a verdict for $7,750.00. Defendant moved for a new trial, on several grounds, and subsequently amended his motion by adding others.

<p>1. A tax collector is authorized to issue an execution, for an unpaid liquor tax</p> <p>2. Although, on a money rule, a tax fi. fa. claiming to share in the distribution was issued against a person other than the defendant from whose property the fund in court was raised, yet where it appeared that the person against whom the tax fi. fa. was issued was the agent of the person from whose property the fund was raised, and that the fi. fa. issued for the ‘ taxes of the identical property sold to raise the fund, the fi. fa. was properly ordered to be paid.</p> <p>3. Where a distress warrant was issued and levied before any lien for labor attached, the work for which the lien was claimed not having been completed, the distress warrant took precedence in the distribution of a fund arising from a sale of the debtor’s property.</p>

<p>Interest and Usury. Factors. Before Judge Willis. Taylor Superior Court. August Term, 1884.</p> <p>To the report contained in the decision, it is only neces-' sary to add that the note sued on, and which was claimed to be usurious, was as follows :</p> <p>“ By the first day of October next, we, or either of us, promise to pay Geo. P. Swift & Son fifty-four dollars, at their office in Columbus, Georgia, advanced on crops, with interest at and after maturity at the rate of twelve per cent per annum until paid, for value received. Five dollars of the above amount may be discharged upon the delivery to said Geo. P. Swift & Son [of] five bales of cotton, on which they are to have their usual storage, commissions, etc. And we waive or renounce our right to the benefit of the exemption provided for under sections 1 and 4, article 9, of the constitution of Georgia, 1877.”</p> <p>This note was dated January 4, 1879.</p>

Practice in Supreme Court. Charge of Court. Equity. Cross-bills. Before Judge Willis. Harris Superior Court. October Term, 1884. W. P. Rogers- filed his bill against George W. Rogers, alleging,' in brief, as follows : Complainant was the owner of a tract of land, and had caused it to be set apart to him as a homestead. He agreed to sell it to the defendant, who was his son, for $600.00, and take his notes due at the rate of $100.00 per year for six years.

Practice in Superior Court. Courts. Before Judge Mershon. Glynn Superior Court. May Term, 18S4. Certain motions for new trial were made, and objection was urged to them, on the ground that the court was not legally in session, but had been adjourned by operation of law when they were made. The facts on which this objection was predicated were as follows: At the May term, 1884, on July 19, the judge adjourned the court until Saturday, July 26.

<p>Railroads. Negligence. Damages. Before Judge Hammond. Fulton Superior Court. April Term, 1884. ■</p> <p>Reported in the decision.</p>

<p>Deeds. Wills. Title. Administrators and Executors. Estoppel. Before Judge Pate. Dooly Superior Court. September Term, 1884.</p> <p>To the report contained in the decision it is necessary to add only the following: The instrument under consideration was in the general form of a deed, was attested by two witnesses, one of whom was a justice of the peace, and had, as its expressed consideration, the love and affection of the maker to his wife, and $5.00 in hand paid. The body of this instrument was as follows :</p> <p>“ Said Nathan Youngblood hath bargained, sold, granted and conveyed, and by these presents doth bargain, sell, grant and convey unto the said James N. Youngblood, for their use, benefit and advantage, in trust for said Mary Youngblood for' life (exempt from, the marital rights of Sallie Youngblood, wife of James Young-blood, or any future wife James N. Youngblood may have) for her sole and separate use, and at her decease to James N. Youngblood and his children . . . (certain real estate), .... also stock of all kinds, household and kitchen furniture, apd every other species or kindof property in the possession of said Nathan Youngblood at the time of his demise, with all the rights, members and appurtenances to said property belonging or in anywise appfcrtaining. To have and to hold the above described property to him, the said James N. Youngblood, in trust for said Mary Youngblood, and at her demise for James N. Youngblood and his children, as above specified, forever, free from the debts, liabilities, obligations’and contracts of the said James N. Youngblood or his children.”</p>

Officers. Treasurer. State. Principal and Surety. Bonds. Forfeitures. Before Judge Hammond. Fulton Superior Court. September Term, 1884. Alfred H. Colquitt, governor, for the use of the state of Georgia, brought suit against J. W. Renfroe and the sureties on his bond as treasurer of the state.

<p>1. Where a judge of the superior court approved a bond tendered for the purpose of removing a cause to the circuit court of the United States, and thereby virtually gave judgment for the removal, this was a final order disposing of the case in the superior court, and is reviewable in this court.</p> <p>2. To divest the courts of this state of jurisdiction, a petition must be filed, which, taken in connection with the record, makes a case for removal; and upon this petition and record the state court must pass.</p> <p>3. Where the charter of a Georgia railroad corporation conferred the power to sell its road, charter, franchises and privileges to any person or corporation, Within or without the state, and a foreign railroad company purchased the rights, titles, properties, franchises, powers and privileges of every description of such Georgia corporation, and “assumed all its debts or obligations of every sort,” the two becoming merged and consolidated under the name of the foreign corporation, under its charter and the charter granted by the state of Georgia, the purchaser became a domestic corporation, occupying the place of the vendor.</p> <p>(a.) Such facts appearing in the record, the purchaser was not entitled to remove a cause against it from the state to the federal court, on the ground that it was a foreign corporation.</p> <p>(5.) The permission to purchase the domestic railroad company, with all its rights and franchises, was an original and direct grant by the legislature to the appointee of that company, and that appointee or purchaser, as soon as made, became eo instanti the offspring of the legislative will of this state; nor does it matter that the purchaser was not called by name. It was nota mere license to carry out a power already potential, nor did it take the place of the vendee company by mere implication, but by direct grant of power.</p> <p>4. Although a corporation of New York was joined with the East Tennessee, Virginia and Georgia Railroad Company (the purchaser) in this suit as a defendant, no decree could be made in regard to it independently of the railroad company; and therefore that corporation cannot remove the case to the circuit court.</p>

Insurance. Fraud. Policy. Bad Faith. Attorney and Client. Damages. Before Judge Adams. Chatham Superior Court. June Term, 1884. Grehan brought suit against the Watertown Fire Insurance Company on a policy of insurance for $2,100.00. The declaration, as amended, alleged the making of proofs of loss and demand for payment, which was refused, in bad faith. In addition to the loss, plaintiff claimed twenty-five per cent damages 'and $500.00 attorneys’ fees.

<p>1. A charter which authorized a railroad company to run its road from the boundary between the states of South Carolina and Georgia to the city of Augusta, and, with the assent of the railroads in this state, to join its track to theirs, did not confer upon it the power to subsequently run its road through the city of Augusta, so as to connect with another railroad. In order to do this, express authority must be granted by the legislature.</p> <p>2. The actof Í8S1 (Code §1689 (j)), which allows railroads to connect with each other, does not confer express authority on á railroad company to run its road through an incorporated city.</p> <p>(a) Where an act was entitled “An act to provide a general law for the incorporation of railroads, and to regulate the same,” its object was single, being to provide a general law for the incorporation of railroads, and the words, “and to regulate the same,” mean only to regulate the railroads incorporated under the act. Therefore, where it is provided in the body of the act that its provisions shall apply to railroads already incorporated, to that extent it embraces more than one subject-matter, and one not indicated by the title.</p> <p>3. Where the charter of the Augusta and Knoxville Railroad Company authorized it to build a railroad from Augusta, in the county of Richmond, to Clayton, in Rabun county, and to consolidate or connect with any other railroad company in or out of the state, the intention of the act was to give this company the power to connect with those railroads with which its road might come in contact along the line of its route, but not within the city of Augusta, which is mentioned as the initial point of the line of the road.</p> <p>4. The act of 1S74 (Code, (§§719 (r), 719 (t)), which gives the rights to railroads to join each other by proper switches, and provides for enforcing the right, if one of the roads should refuse it, makes no provision for taking or condemning the property of any other person than the railroad refusing the connection, and-does not confer power on the railroad to run through an incorporated city for the purpose of reaching and joining another railroad.</p> <p>5. The act of 1856, which permits the city council of Augusta to authorize the connection by common depots, tracks, or otherwise, of all railroads in the city, or of any of them, upon such terms and conditions as may be fixed and agreed on between the city council and them, conferred a discretionary power upon the municipal authorities, but did not compel them to allow s.uch connections.</p> <p>(a.) An expenditure of money after agreement'made with the municipal authorities might estop them from interfering with the work; but a mere unauthorized expenditure would not have such an effect.</p>

Evidence. Interrogatories. Railroads. Witness. Before Judge Simmons. Bibb Superior Court. April Term, 1884. Mrs. Bertha Wolff brought suit against the Central Railroad to recover for a spoliation of baggage. Defendant pleaded the general issue. On the trial, the evidence for the plaintiff was, in brief, as follows: She packed her trunks in New York and purchased a coupon ticken to Macon, Georgia, via the Piedmont Air-Line, checking her baggage through to her destination.

Practice in Supreme Court. Practice in Superior Court. Equitable Pleadings. Set-off. Dismissal. Before Judge Hammond. Fulton Superior Court’. September Term, 1884.

<p>Insurance. Husband and Wife. Contracts. Gifts. Equity. Consideration. Before Judge Hammond. Fulton Superior Court. September Term, 1884.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors. Sales.' Parties. Yendor and Purchaser. Before Judge Branham. Floyd Superior Court. September Term, 1884.</p> <p>C. W. Sproull, as administrator of R. W. Sproull, deceased, brought an action against J. J. Seay, alleging that, on the first Tuesday in November, 1882, the administrator exposed to sale certain property of the deceased, and Seay was the purchaser at the price of $960.00; that defendant refused to pay for the land, and it was afterwards re-sold at his risk, and brought only $375.00. Plaintiff thereupon brought this suit for $585.00, the difference between the amounts which the land brought.</p> <p>On the trial, the following evidence was introduced:</p> <p>C. IF. Sproull, sworn: As administrator of R.W. Sproull, I advertised lot 249 in the 23d district and 3d section of Floyd county, for' sale at Rome on the first Tuesday in November, 1882. At this sale, J. J. Seay bid off the southeast quarter of the lot at $960.00. I called on him for the money soon after the sale; he said he did'not have it, but promised to pay it. He offered to pay me in notes on other persons, and I told him I .could not take them. I re-advertised the land for sale on the first Tuesday in February, 18S3, and he said he would have a man there to buy it.. On the day of the second sale, the land was bid off by a man named Palmer, who had previously been an employé of Seay, Bowie & Company,' but Seay, the defendant, had ceased to be a member of the firm. Defendant was present at this second sale. Palmer’s bid was $910.00. Mr. Seay came to me afterwards and asked me to indulge Palmer, saying that the latter would get a large sum of money for a patent, and would pay me; and, in consequence of this request, I did indulge Palmer, but he did not pay. and I said to Seay that I would not wait longer, and would have to re-sell at his risk, at which he became excited and said, “ I will seo that you do not get the money.”' I re-advertised and re-sold the' land on the first Tuesday in August, 1883, and it brought $375.00. All these sales were at the court-house door in Rome, Georgia, during the legal hours, i did not make the second sale until February, because of defendant’s request for indulgence and his promise to pay for the land, and I did not re-sell again until August, because of defendant’s request for indulgence to-Palmer.</p> <p>The terms of the sale, as advertised for November, 1882, were one-third cash on the day of sale, and the balance 1st of January following. In the advertisements for February and August following, the terms were cash. In the advertisement for February, it is stated that the sale is at the risk of Seay, and in that for August, it is stated that the sale is at the risk of Seay and Palmer.</p> <p>On motion, a non-suit was granted, and plaintiff excepted.</p>

<p>1. Where trover was brought for four bales of cotton which had been grown on a plantation, and bail process was sued out, and defendants being unable to give bond, plaintiff took possession of the crop and gave bond in double the sworn value of the property, conditioned to restore it to the defendants in case he failed to make good his claim thereto, and where, upon the trial of the trover case, being about to be non-suited, the plaintiff dismissed his action, this amounted to a judgment for the restitution of the property to the defendants, which bound both the plaintiff and the surety on his bond, and estopped them from litigating about the title to the property until it had been surrendered, in accordance with the condition of the obligation, and the defendants in the trover suit could proceed on the bond to recover the value of the property.</p> <p>(a.) To such a suit, a plea of set-off, alleging damages resulting from keeping the defendant (the plaintiff in the trover suit) out of possession of the rented premises on which the crop was raised and from the appropriation of the crop planted thereon, was not prop" erly allowed. Such matters were the foundation on which the title to the property in controversy rested, and were necessarily included in the j udgment in the trover suit.</p> <p>2. ITad the property remained in the hands of the sheriff, the expense of taking care of and securing it would have been properly chargeable as a part of the costs of the suit, and judgment for them would have been awarded against the party cast; but where the defendants in trover failed to give bond in response to bail process sued out by the plaintiff, and the latter gave bond and took charge of the property, but subsequently dismissed his action of trover, in a suit on the bond so given, he could not set off the expenses of gathering the crop.</p>

Railroads. Monopolies. Common Carriers. Before Judge Simmons. Bibb Superior Court. October Term, 1884. Logan & Company brought their action on the case in Bibb superior court against the Central Railroad, alleging, in brief, as follows : Plaintiffs are dealers in salt, and as such procure large quantities of that article outside of the state, and store it at some port on the coast for subsequent shipment, on orders, to various parts of the state.

<p>Title. Prescription. Fraud. Administrators and Executors. Equity. Yenue. Before Judge Pottle. Rabun Superior Court. September Term, 1884.</p> <p>Reported in the decision.</p>

<p>When a homestead and exemption in bankruptcy was granted by the judge or register in the federal court, such exemption is no more subject to levy and sale than if it had been set apart by the ordinary having jurisdiction thereof.</p> <p>(a.) This case is controlled by that of Ross, adm’r, vs. Worsham, 65 Ga., 624.</p> <p>(&.} IE application for homestead and exemption be made in land, the fact that a prior levy has been made will not prevent the grant o£ the homestead or exemption in the property before sale, or from the proceeds in court after sale.</p> <p>(c.) A mortgage to secure an attorney’s fee contracted after the adoption of the constitution of 1863 was not a debt which would subject the homestead, even if the services were rendered in a case involving the removal of an incumbrance on the land.</p>

<p>Principal and Surety. Title. Usury. Debtor and Creditor. Judgments. Before Judge Bower. Mitchell Superior Court November Term. 1884.</p> <p>Reported in the decision.</p>

Torts. Municipal Coiporations. Damages. Non-suits. Partnership. Before Judge Hammond. Fulton Superior Court. September Term, 1884. Kries & Dooly, as partners in the business of bill-posting, sued the city of Atlanta for $2,500.00, for the destruction of a bill-board and the loss profits in displaying advertisements of theaters, shows, circuses and patent medicines.

<p>1. The certificate of the clerk to a record from New Jersey was as follows: “ That the pages 351 to-360, inclusive, in book No. 67 of judgments of said court, and now remaining on file in my office, contain a true and complete record of the plaint proceedings and judgment, of which the foregoing is a true copy, in the case of Ann Chapman against Benjamin Conley and others.” In the record preceding, and attached to this certificate, the plaintiff is described as Julia A. Chapman and as Julia Ann Chapman:</p> <p>Held, that, taking the certificate in connection with the copy record, the latter was sufficiently identified, and the clerical mistake in the certificate did not vitiate it.</p> <p>Jackson, C. J., dubitante.</p> <p>2. Where suit was brought in the state of New Jersey against the members of a firm, one of whom was served, and a return of non ■ est inventus made as to the others, and the judgment was entered, under the statute of that state, against all the co-partners, in a suit on such judgment brought in the state of Georgia, it was binding as to the partner who was served.</p> <p>(a.) Semble, that the co-partners who were not brought into court under the process would not be liable on the judgment, outside of the state of New Jersey.</p>

<p>Accord and Satisfaction. Charge of Court. Damages. WaterOourses. Evidence. Before Judge Stewart. Monroe Superior Court. August Term, 1884.</p> <p>To the report contained in the decision, it is only necessary to add the grounds of the motion for new trial, which were as follows:</p> <p>,(1.) Because the court permitted a witness to testify as to the condition of the plaintiff’s bottom land from 1840 to the time it was sold to the plaintiff in 1864. — Defendant objected, on the ground that this was not the proper method of proving damage.</p> <p>(2.) Because the court charged as follows • u If you believe defendant turned more water into Tobesofkee creek than had been accustomed to flow into Tobesofkee at that point, and if you believe such act caused sand to be carried into Tobesofkee and fill the channel, if this act damaged plaintiff, then plaintiff would be entitled to recover, whether the sand went from defendant’s land or from the land of any other person, unless the evidence discloses some good reason why he should not recover.”</p> <p>(3.) Because the court charged as follows: “ Although you may believe from the evidence that the water of Yellow creek would eventually. have gone into Tobesofkee at the point where defendant turned it in (if it is shown that defendant turned the water), still, if defendant turned the water in before the same, if let alone, would have gone there, and if such act damaged plaintiff, plaintiff would be entitled to recover, unless the evidence discloses some good legal reason why he should not recover.”</p> <p>(4.) Because the court charged, with reference to the plea of settlement or accord and satisfaction, as follows: “ If such agreement was not made, or, if made, if defendant, Cheeves, has not complied with the same, or if only a partial compliance with the agreement has been made, then plaintiff would not be estopped from recovering damages, if he has been damaged; an estoppel not being favored by the law, when the same is pleaded, to avail the defendant, it must be clearly proved and established.” [The body of the plea referred to was as follows :</p> <p>“ If he at any time damaged plaintiff’s lands, as set forth in said suit, said plaintiff and this defendant fully settled and compromised all such damages as were claimed by said plaintiff, before the filing of said suit, and therefore plaintiff has no legal right to prosecute said suit for damages, being debarred and estopped by reason of said settlement and compromise from suing and recovering any damages from this defendant. Defendant says that he and plaintiff entered into the following agreement, by which all damages claimed by plaintiff were settled.”</p> <p>(Then follows a statement of the agreement and a compliance therewith by the defendant. The plea then closes thus:)</p> <p>“And he therefore says plaintiff is debarred and estopped from prosecuting his said suit for damages; and of this he puts himself on the country.”]</p> <p>(5.) Because the court charged as follows: “ In every tort there may be aggravating circumstances, either in the act or in the intention, and in that event the jury may give additional damages either to deter trespass or to compensate the wounded feelings of the plaintiff.”</p> <p>(6.) Because the court charged as follows: “Now, in this case, I charge you, if you find from the evidence that the land of plaintiff has been, by the act of defendant, turning water into Tobesofkee creek, damaged, and if you believe that plaintiff is entitled to recover, then plaintiff would be entitled to recover general damages, and such special damages as the evidence shows he has sustained. Under special damages (you would ascertain what the amount was for each year; if the same has been shown, you will add the same together and return it in one sum as your verdict) would be included the value of the rent of the land that was damaged, before it was damaged; that is to say, what would have been the rental value of the land before it was damaged; -then how much has this rental value been reduced, and this would apply to lands overflowed or to lands which had been seeped with water and rendered unfit for cultivation thereby, if such be the evidence ; that is, if such damages were caused by the wrongful act of this defendant.”</p> <p>(7.) Because the court erred in charging the jury that plaintiff “ was entitled under the law to general damages . . . if plaintiff were inj ured by the wrongful act of defendant.” — Especially was such charge error, when plaintiff had abandoned that part of his suit which claimed general damages, on the trial of the cause, counsel for plaintiff announcing to the court, in the opening of the case before the jury, that that portion of his declaration would not be read to the jury or insisted upon, the defendant having filed his plea claiming that all general and special damages set up by plaintiff, prior to four years before the filing of his declaration, were barred by the statute of limitations; and especially was such charge error, in view of the fact that the court declined to give in charge to the jury the law in reference to the statute of limitations, the court having charged the jury as follows: “ In this case, I charge you, if you find from the evidence that the land of plaintiff has been, by the act of defendant, turning water into Tobesofkee creek, damaged, and if you believe plaintiff is entitled to recover, then plaintiff would be entitled to recover general damages and such special damages as the evidence shows he has sustained.”</p> <p>[The judge added the following note to this ground :</p> <p>“Counsel for plaintiff, at the opening of plaintiff's case, commenced to read to the jury the declaration, and, after reading a page or so, remarked that plaintiff will not insist on general damages, or injury to the land, as set forth in this part of the declaration. Counsel then turned the leaves or sheets of paper to what was termed the second count of the declaration, and read that, and the trial proceeded on that count of the declaration.”]</p> <p>(8.) Because the court permitted the plaintiff, John A. Danielly, and witness, W. F. Harden, and others, to testify,over the objection of defendant, that Cheeves’s bottom lands, where Yellow creek ran, were wet, marshy, covered with undergrowth and swamp grass, prior and up to the time of cutting the ditch and building the levee in December, 1875, and also that the same was not in cultivation, and in testifying that said bottoms, since December, 1875, had been very dry, had been cleared up and cultivated, up to the time of the trial, yielding unusually fine crops of corn. — Objected to as irrelevant.</p>

<p>Injunction. Bonds. Principal and Agent. Principal and Surety. Equity. Actions. Damages. Before Judge Port. Lee Superior Court. November Term, 1884.</p> <p>Reported in the decision.</p>

Railroads. Damages. Negligence. Evidence. Roads and Bridges. Before Judge Pottle. Warren Superior Court. October Adjourned Term, 1884. Williams brought suit against the Georgia Railroad for a personal injury, resulting from being run over by a train, laying his damages at $20,000.00.

Verdict. Attorney and Client. Practice in Superior ■Court. Railroads. Damages. Negligence. Master and Servant. Evidence. Before Judge Simmons. Bibb Superior Court. April Term, 1884. Mrs. C. E. Crosby brought her action, for damages against the Central Railroad, to recover on account of the death of her husband, caused by a collision of trains on that road. She laid damages at $50,000.00.

<p>Judgments. Attorney and Client. Illegality. Practice in Superior Court. Process. Waiver. Executions. Evidence. Before H. T. Lewis, Esq., Judge pro hac vice. Morgan Superior Court. September Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. The first ground of the motion cannot be considered, because it fails to show the cause for which the defendant moved to non-suit the case or to dismiss the warrant.</p> <p>2. While it was error to allow parol testimony, to show the terms of a written contract, yet, where the contract itself was subsequently introduced in evidence, and the case was tried on the writing, the error worked no injury.</p> <p>3. Where a contract of sale of certain goods provided that, if the parties could not agree on the wholesale and market value thereof, each should select a merchant to assess the value of such goods, and if the two could not agree, then a third merchant was to he called in, this was not an agreement for an arbitration, either at common law or under the statute, but was a sale, with an agreement to render certain the value of the consideration in a particular manner, and was valid.</p> <p>(a.) While the delivery of goods is generally essential to the perfection of a sale, yet it may be dispensed with, if such he the intention of the parties to the contract.</p> <p>(&.) Although an execution, of which the plaintiff was apprised before the valuation, was levied on the property, if this was not made a ground for refusing to comply with the contract, but his refusal was put upon other grounds, and he was assured that the execution would be arranged, which was, in fact, done within a few days, this did not control the case so as to render an error in the charge immaterial.</p> <p>(c.) The issues in the case stated.</p>

<p>Venue. Jurisdiction. Penitentiary. Before Judge Hammond. Fulton Superior Court. October Term, 1884.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Debtor and Creditor. Insolvency Equity Traders. Injunction and Deceiver. Before Judge Stewart. Fulton County. At Chambers. January 15,1885.</p> <p>Deported in the decision.</p>

<p>Fraud. Yerdict. New Trial. Evidence. Before Judge Hammond. Clayton Superior Court. September Term, 1884.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Accomplice. Practice in' Superior Court. Courts. Before Judge Lawson. Jones Superior Court. April Adjourned Term, 1884.</p> <p>To the report contained in the decision, it is only necessary to add, in explanation of the first division thereof, the following: Allen was indicted for arson in setting fire to the house of one Smith. One Willis Glawson, a witness for the state, testified, in brief, as follows: Witness lived about a mile from Smith’s; lived with him about three years previously, but had a misunderstanding with him. Went to church with defendant on the night of the fire. On the way defendant said “he.had something against a d — d son of a b — ch, he wanted to get it out of him, if he had to burn it out on Monday morning before daybut he called no names. He told witness •to come to his house after leaving church ; that he had something for him (witness). Witness did not ask or know what was wanted. Witness spent sometime after church with a party of people, and after stopping at his mother’s house awhile, reached defendant’s before day. They went up the.road together. When about half way to Smith’s, defendant told witness to wait until he could go to Smith’s and get his banjo; he went towards the lot, in doing which he had to go round the kitchen. He was gone about a quarter of an hour or longer. He returned without any banjo, but said he “had fixed the d — d son of a b — ch.” Witness asked him if he had fired the house. He said, “ Never mind,” and went towards his home.</p> <p>The court charged on this subject as follows : “ To determine the truth of the evidence, it is necessary for you to know the value which the law attaches to the testimony of certain witnesses. You are not authorized to convict the defendant upon the testimony of an accomplice, unless the testimony of the accomplice is corroborated by other testimony or facts in the case pointing directly to the guilt of the defendant and connecting him with the crime (so) as to satisfy your minds that his testimony is true. Defendant’s counsel say that if Willis Glawson knows anything of the crime, he, deriving his knowledge from his participation, is an accomplice. Is this true ? One may be an accomplice either as a principal oras accessory (the court read sections 4305, 4307 and 4809 of the Code) ; one may have knowledge of a crime to be committed and be present at its■ commission, without being an accomplice; he may be present as a spectator or for the purpose of detecting the perpetrator or other innocent purposes. To be an accomplice, he must have co-operated in the commission of the crime; as accessory before the fact, he must procure or counsel its commission; and as accessory after the fact, he must harbor, assist or protect the principal offender; and as principal in the second degree, he must aid and abet its commission. To constitute crime, there must be something more than passive presence and knowledge that a violation of law was intended. Determine, under this rule, if Glawson was or not an accomplice with defendant; and if he was, his testimony must be corroborated by other testimony, or you cannot convict; if he was not an accomplice, you can convict upon his testimony alone, if it satisfies your minds of the guilt of the defendant to the exclusion of every reasonable hypothesis of his innocence.”</p> <p>After conviction, defendant moved for a new trial, which was refused, and he excepted</p>

<p>Municipal Corporations. Railroads. Damages. Streets. Roads and Bridges. Evidence. Judgments. Charge of Court. Before Judge Hammond. Fulton. Superior Court. March Term, 13S4.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Reeds. Title. Description. Trusts and Trustees. Principal and Surety. Executions. Insolvency. Before Judge Hutchins. Clarke Superior Court. November Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. Where a motion is made for a new trial, and the decision thereon is excepted to, it is not competent for plaintiff in error to except to decisions made on the trial, not excepted to at the time, and not embraced in the motion.</p> <p>2. Whether there was error in admitting the notes for the purchase money of the property sued for in this case, it is unnecessary to • decide, as it was proved by testimony, to which no objection was made, that the price of the property was $250, and only $30 of the amount was paid, and that, leaving out altogether the last payment, which seems not to have been due at the commencement of the suit, the verdict finding the value of the property was right, especially if interest on the installments due was added.</p> <p>3. Where personalty was sold, and the vendor retained the title until it was paid for, the amount of purchase money due, with interest, is the measure of damages recoverable in trover.</p> <p>4. While the verdict is somewhat confused, by a reasonable intendment it appears that the jury found the value of the property sued for, and that it might be discharged by the return of the property, although it was not so directly expressed.</p> <p>5. Parol evidence of the pendency of an attachment for purchase ' money was inadmissible.</p>

<p>1. When a vendee under a warranty deed has fairly and reasonably paid a sum of money to remove an incumbrance which was outstanding, and was a legal and valid lien on the land at the time of his purchase, he may recover the amount thus paid from his vendors.</p> <p>2. Where a homestead was set apart to a man as the head of a family, consisting of his wife and minor children, and the husband and the wife jointly conveyed it by warranty deed, in a subsequent suit on the warranty, the wife was not relieved from liability on the ground that she was a mai'ried woman.</p> <p>3. The verdict should have been for $345.35, and a new trial is refused on condition that the excess above that amount shall be written off.</p>

<p>The minor child of a widow, who was a member of her family at the time of her death, is entitled to a year’s support out of her estate.</p> <p>(a.) The word “person,” as used in §2571 of the Code, includes both sexes.</p>

<p>Where several notes were given fer the purenase price of land, to a suit based on one of them, the defendant could recoup any overpayment made and directed by him to be applied to such note, but in tho absence of such direction, he could not recoup against such note amounts paid which exceeded the amount of that note, unless he had paid the entire purchase money, and then he could recoup what ho had paid over and above the entire debt. Code, §§2911, 2912; 1 Ala., 103; 11 Id., 095; IN. Ii.,33; 7 Tenn., 269.</p> <p>(a.) This rating does not conflict with the ruling in 53 Ga., 649.</p> <p>(6.) Some of the notes having been reduced to judgment, if any of such judgments had been paid, it could be set up by affidavit of illegality.</p>

<p>There was sufficient evidence to sustain the finding of the jury; no material errors were committed by the court in its charges or refusal to charge; and there was no abuse of discretion in refusing to grant a new trial in this case.</p>

<p>1. "Where a defendant was indicted for burglary, and convicted of that offense, charges and refusals to charge in respect to the minor offense of larceny from the house, even if erroneous, would not authorize a new trial.</p> <p>2. Where a family, occupying a dwelling house, were absent at the time it was broken open and entered, and property stolen therefrom, but with the intention of returning thereto, the offense was burglary from a dwelling-house. Eoscoe Cr. Ev., 358; 2 Whar. Cr. Law, 1575, and citations.</p> <p>3. Where a family, who occupied a dwelling-house, were absent, but with an intention of returning, and the house was rented for sometime after they left, but some of the effects of the family were left in it and stored in some of the rooms, and the tenant gave up possession by leaving tbe house before the burglary, and the goods and chattels left by the family of the owner were taken away by the burglar, the crime was burglary of the dwelling-house of the head of the family.</p> <p>(a.) If a husband and wife lived together in a house, it was his dwelling-house as well as hers, although the title may have been in her; and it makes no difference that in her testimony the wife called it her house, while her ton called it the dwelling-house of his father.</p> <p>4. Where a burglary was committed, and some of the missing property which had been left in the house was identified and found in the possession of the defendant shortly thereafter, and not satisfactorily accounted for, this was sufficient evidence of his guilt; and the jury having' found him guilty, and the presiding judge being satisfied, this court will not interfere.</p>

<p>When this case was here before, it was held that the decree then, affirmed only required the purchasers from the assignee to pay the purchase money into court; that the alleged mortgage creditor could then be made a party, if not one, and set up her superior right as to the fund so deposited; and that, on her failure to establish such right, the purchasers from the assignee could recover' that portion of the fund which they had paid to her by direction' of the assignee. It was therefore error to refuse to allow the purchasers to make her a party so as to settle the equities between. all the parties in interest in one proceeding. 70 Ga., 293.</p> <p>(a.) It does not destroy the right to make her a party that she is now insolvent and resides in Alabama, she having resided in ibis state and in the county of the litigation when the bill was filed,’and having been first made a party by complainants, and then dismissed.</p> <p>(b,) There hnving been no laches in not taking the interrogatories of a iemale witness to a vital point in the case, who was in another state, and she being sick and unable to testify at the time of the trial, but it being shown that it was expected to procure her testimony by the next term, time should have been allowed for that purpose.</p>

<p>1. A wife, after her divorce and separation from her husband, cannot enforce an execution against him for a balance due on a judgment against him, transferred to her in order to protect his property from junior judgments, she having paid nothing for the transfer, and it not being made to her as a gift, but to protect him. If there was any fraudulent design in respect to creditors, so as to vitiate the arrangement, she was a party to it, and the courts will not enforce the'transaction for one party against the other, but will leave them both where they are found.</p> <p>2. The question whether the fi. fa. was delivered to an alleged transferee was open to parol testimony, and was not concluded by, or contrary to, anything in writing.</p> <p>3. The consideration on which the transfer of nfi.fa. was made was open to investigation and explanation by parol evidence.</p> <p>4. The charges and refusals to charge are not materially erroneous, inasmuch as the principle contained in the first head-note requires the verdict and judgment.</p> <p>(«.IWhata plaintiff in execution said after parting with his title thereto was inadmissible on an issue raised under the enforcement of the fi. fa. by the transferee.</p>

<p>Where it was shown that a mule was killed by the running of the engine and cars of a railroad company, this raised a presumption of negligence on the part of the defendant; but where this presumption was fully rebutted by the testimony on behalf of the company, to the effect that the injury was not the result of negligence on the part of the defendant, or its agents, but that it used all ordinary and reasonable care and diligence to prevent the injury, and where this was not contradicted by any other evidence, a new trial should have been granted, on the ground that the verdict was without evidence to support it.</p>

<p>The party applying for the new trial failed to file with the motion a brief of the oral and copy of the written testimony in the cause, under the “ revision and approval of the court,” either at the term when it was made or within the time fixed by the consent order. For the failure to do so, there was no error in dismissing the motion. 49th Rule of Court, Code, p. 1352; §§3719, 3721; 70 Oa., 445.</p>

<p>1. Where jury commissioners had been regularly appointed, and the terms for which they had been appointed had expired, they held over until their successors were appointed. Code, §132; 58 Ga., 512.</p> <p>(a.) There being no brief of evidence in the record, and it not being made-to appear to this court, by suggestion of diminution or otherwise, that such a brief was filed at all, and counsel for plaintiff in error not being present, the ground of the motion for new trial, that the verdict is contrary to law and evidence, will be considered as abandoned.</p> <p>2 In drawing a grand jury, the ordinary acts as one of the board of jury commissioners, and his absence during the drawing of the jury will not render it invalid, a majority of the commissioners being present and acting. Code, §4, sub-section 5; Acts 1878-9, p. 34.</p> <p>(a.) Where the law is substantially complied with, and upright and intelligent men form the grand jury, whose duty it is to charge crime, not to try parties in the last resort, the courts should not set aside proceedings by such an inquest on mere technicalities. 57 Ga., 430 (opinion by Jackson, J.)</p>

<p>1. If the jury believed the witnesses for the state, there was sufficient evidence to support their finding, and 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. Although some portions of the charge, when taken alone, may seem to be erroneous, yet if, when taken in connection with the context, they are proper and legal, a new trial will not be granted because of them.</p> <p>3. There-was no error in refusing to continue this case, nor in not interposing to repel illegal testimony before objection was made to it, the objection, when made, being promptly sustained, and the evidence rejected. • •</p>

<p>Where an attachment for purchase money is sued out un der §3293 e seq. of the Code, there are three issuable or traversable grounds: first, purchase money; second, possession; and third, that the purchase money is due. These grounds may be traversed as in ordinary attachment cases; the issue made by this traverse is the thing to be tried by the jury; no other matter is for trial; and a motion for new trial is confined to such issues. Hence, the verdict will not be set aside on the ground that it was not supported by the evidence, there being none to show that the debt was due, if that was not made a ground of the traverse. Code, §§3296, 3212.</p>

<p>1. While a defendant may be indicted and convicted under one indictment for forcible entry and detainer, both together constituting one offense, yet each may constitute a separate offense; and under an indictment for forcible entry and detainer, in order to 'support a verdict of guilty, both branches of the offense must be proved. In the absence of any proof of forcible detainer, a verdict of guilty is not supported by the evidence. Code, §§4524, 4525, 4526; 43 Ga., 433.</p> <p>2 The object of the statute is to prevent personal altercation and strife between parties claiming possession, and there must be force or terror tending to a breach of the peace, at least, and enough to satisfy the jury of one or the other, in order to authorize a verdict of guilty. Menaces, as well as force and arms, to or upon tile occupant of the premises, make the offense. 24 Ga., 191; 61 Id., 496. •</p>

<p>In cases transferred from the superior to the county court, fees of the-solicitor general and other officers of the superior court should be deducted from the fines imposed in such cases, and the balance should be paid to the county treasurer. In cases not transferred from the superior to the county court, money collected by the latter court and paid over to thecounty treasurer is not subject tobe appropriated to the payment of orders for insolvent costs due the-officers of the superior court. Code, §§300,315, 519, 4631; 54 Qa., 40.</p>

<p>A county is not liable in damages for maltreatment of a person committed to jail by the ordinary, preparatory to being sent to the lunatic asylum, under §1864 of the Coilé, but such person, or his legal representative or guardian, if he was found to be a lunatic- and sti.l so remains, must sue personally, the jailer and sheriff and. those who maltreated him while in jail. 72 Qa., 188.</p>

<p>1. The evidence is abundant to maintain the verdict of guilty of the crime of burglary.</p> <p>2. The wife of one of two persons charged with a crime may testify • against the other, he being severally and separately tried. ' The state could sever on the trial for the very purpose of introducing., her testimony. 58 Qa., 577 ; 69 Id., 11.</p> <p>3. There was no error in summing up the testimony and saying to the jury that they might consider such facts in making up their verdict, with the caution that the judge expressed no opinion nor intimated any thereon, or on the sufficiency of the evidence to convict, and did not mean to confine the jury to his summing up, but that they should consider all the evidence in the case.</p> <p>4. “Whether the prosecutor had good or bad feelings towards the de-s fendant, might bear on his credibility asa witness, or on the' ques-o tion of fixing costs upon him, if the defendant were not guilty and the prosecution malicious, but could not otherwise affect the question of the defendant’s guilt or innocence. 67 Qa., 29.</p>

<p>An execution was levied on a horse, and a claim was interposed. In order to release the horse from the levy, the claimant became the transferee of the fi. fa., but before the assignment, he had the levy on the horse dismissed by order of the plaintiff. The defendant in fi. fa. had obtained this horse in exchange for a mule. After the assignment of the fi. fa., the claimant caused it to be levied on the mule, and the person who had received it in exchange interposed a claim:</p> <p>Held, that the mule was not subject to levy and sale under the fi. fa-Code, §3659 and citations.</p> <p>(a.) There being no contested facts involved in this case, which made it necessary to remand the case for another hearing in the justice’s court, there was no error in rendering a final judgment holding the property not subject. Code, §4067.</p>

<p>1. A man who persuaded the daughter o£ the prosecutor to leave her parents, and, without their knowledge or consent, go with him to another county, she being a minor sixteen or seventeen years old, was guilty of kidnapping. 74 Qa., 191; Code, §4369.</p> <p>2. If a child has neither parent nor guardian, it must be forcibly, maliciously or fraudulently led, taken and carried away against its own will and without its consent, to constitute kidnapping; but where it has a parent or guardian, if these things should be done against the will.and without the consent of the parent, irrespective of that of the child, this would complete the offense.</p>

<p>' When an affidavit to foreclose a chattel mortgage was attached to the mortgage, which it identified by its date and amount, it was not void because it did not state that it was annexed to the mortgage, and it was error to dismiss the levy made thereunder. 73 Ga., 139; Code, §3971.</p> <p>(a.) The requirement to annex ihe affidavit to the mortgage, and to 1 return it therewith to the clerk’s office, is directory to that officer, that he may be enabled to issue the execution on the foreclosure. Code, §3971.</p>

<p>1. If an application for homestead was carried to the superior court by appeal, the petition could be amended there as well as in the court of original jurisdiction; but if the ruling of the ordinary were carried to the superior court by certiorari, only the errors committed by the court of ordinary on the pleadings as they stood in that court, to which exceptions in writing were taken, could be considered; and on the hearing of the certiorari, an amendment to the original petition for homestead could not be made. 45 Oa., •552; Morris vs. Morris, (present term; p. 2S6.)</p> <p>2. A married woman could not take a homestead, under the constitution of 1877, out of her own property, as the head of a family, where her petition showed her husband to have been the head'.of a family, and that he refused to take a homestead, and did not ' show that the applicant had the care and support of her children ' ■ or dependent females of any age, or even that her husband was unable to support her children and herself out of his property* Code, §5210.</p>

<p>Where a laborer’s lien was foreclosed, the execution issued thereunder levied, and a counter-affidavit interposed and returned for trial, the process was mesne, and an adjudication and discharge in bankruptcy operated to discharge the debtor from the debt. Code, section 1991, sub-sec. 4; 65 fía., 444.</p>

<p>The evidence in this case warranted a conviction of murder. The court gave the law correctly in charge to the jury as to the several grades of homicide, and committed no error of law in his instructions or in refusing to charge as requested.</p>

<p>. Exceptions in writing to tlie decision of the court of ordinary are necessary as a basis of a certiorari thereto; and where it appears that no such written exceptions were made, it was proper to dismiss tho certiorari. Aliter, where the decision of tho ordinary excepted to is made as a habeas corpus court, or a court for tho deter- , ruination of such matters as are outside of its regular jurisdiction. Code, §§-1050, 4052; 34 Ga., 91.</p>

<p>Whether one worked a plantation as a partner or as a mere cropper or hired hand, who was to work f.or half the crop, is immaterial in this case; after the crop was divided, the title (o the half set apart to him became his, and the other party had no title thereto and could not recover it in trover. If the latter had any claim for advances, his remedy was to sue therefor.</p>

<p>The granting of an injunction and the appointment of a receiver res t largely in the discretion of the chancellor, and it would require a strong case to warrant this court in interfering with such discretion. Under the allegations in the bill and answer, in connection with the affidavits read at the hearing, there was no abuse of discretion in appointing a receiver in this case.</p>

<p>This being a suit by preferred creditors against the assignee of their debtors, and it being the desire of the assignee that, if judgment should be rendered against him, it should protect him and his assignor from suit on the note held by the creditors, and that provision should be made for payment of the judgment out of the fund in his hands as assignee, the judgment is affirmed, with directions that it be so amended as to cancel the note given by the debtor to the creditors, and so as to require the payment of the same out of the assets in the hands of the assignee; and it is ordered that the costs of this writ of error also be paid by the defendant out of the fund in his hands as assignee.</p>

<p>The jury found the following verdict: “We, the jury, sustain exceptions numbers 1, 2 and 3, and find for complainants $1,500 principal, and $1,499.66 interest to date, the said amount to come out of the tract of land formerly owned by R. J. Willis, deceased, now in possession of Inman, Swann & Co.:”</p> <p>Held, that, construing the verdict by the pleadings and history of the case on its former trials, in respect to the issues made by the pleadings, and giving it a reasonable intendment, it was the intention of the jury to subject all the land which Inman,' Swann & Co. bought from Heard and wife, or which was conveyed to them by Heard and wife, including that subject to dower, and now levied on by virtue of the decree. 65 Ga., 82; 69 Id., 385; 72 Id., 79.</p> <p>(a.) An afiidavit of illegality cannot go behind a judgment or decree, and the construction of the verdict would hardly be before the court. The decree in this case covers the land levied on, and the execution follows the decree. Code, §§3671, 4215.</p>

<p>In the case of' Thornton, ordinary, vs. Willis, trustee, 65 Ga., 184, 188,. this court held that the itenxof the will invoked in the present lit-,, igation did not give the property in kind to the legatees, hut after ' directing the sale qf all of it, one-sixth part of the proceeds was1 to be paid to éacK of them. ; . .</p> <p>(«.) While the claimant in the present case was not a party to the suit in which this land was charged with the.payment of the debt due the plaintiff in execution, yet, if she ever had title, she had conveyed it to the defendants in execution jointly with her husband, and they set up her rights to defeat the plaintiff’s claim.</p> <p>(b.) If the marital rights of claimant’s husband never attached, but • . her legacy had beén diverted and misappropriated by him and the executors of the estate, with the connivance and participation of others, including the defendants, this cannbtbe set up and determined in this case, for want of proper parties.</p>

<p>An execution cannot legally issue, where there is no judgment, or in a case where the judgment has been set aside on motion for new trial; and an affidavit of illegality which set out these facts was not demurrable.</p>

<p>Where a homestead has been set apart, ail the beneficiarles are jointly interested in the use of the property, and none of them can sever this use. As one becomes of age or dies, the use survives to the survivors until the homestead ceases by the death or arrival at age of all the beneficiaries, in which event, if the head of the family, whose property was so set apart, survives, he will take the property, discumbered of all use thereof by the former beneficiaries. Pending the joint use, property, set apart under the constitution of 1808, is not subject to levy and sale by virtue of a judgment founded on a contract made by one of the beneficiaries since the adoption of the constitution of 1877, although the head of the family may have died, some of the beneficiares still being minors.</p>

<p>L. Where four persons were jointly indicted for riot, and the jury returned a verdict finding two of them guilty of “unlawful riot,”' arid the other two guilty of “ lawful riot,” this was, in effect, a-finding of not guilty as to the two latter defendants, and it was error to remand the jury to their room to correct their verdict as to them.</p> <p>(a.) The mere making a noise or behaving tumultuously will not alone constitute riot, in the absence of any violence; and the effect of the verdict as to two of the defendants was- to find that they committed no unlawful act of violence, and that, though-their conduct may have been tumultuous, it was not violent. Code, §4514.</p> <p>2. While jurors should not be related to the parties by blood or affinity, and such relationship affects their competency, and ordinarily disqualifies them from serving, yet where the discovery of the relationshp of two jurors to the prosecutor is made a ground of a motion for a new trial, and the affidavits in support thereof merely show that since the trial the defendants and their counsel have heard that such relationship existed, but do not show its actual existence, or the source from which such information came, this does not require a new trial.</p> <p>(a.) Directions given that a judgment be entered discharging two of the defendants substantially found not guilty, and as to the other two, that the verdict and sentence stand.</p>

<p>"Where a married woman, living with her husband, owned a separate estate, which consisted in part of a house and lot where they resided, and she carried on the business of keeping a boarding-house, since the act of 1866, her earnings in that enterprise belonged to her, and she was entitled to sue and recover in her own name from one who boarded with her and failed to pay the amount due therefor. 73 Ga., 275.</p>

<p>A bill of exceptions recited the trial of a case, the making of a motion for new trial, and the grounds thereof, but did not state what was done with the motion. It concluded as follows:</p>

<p>County Matters. Constitutional Law. Mandamus. Before Judge Estes. Habersham County. At Chambers. July 10, L885.</p> <p>Reported in the decision.</p>

<p>Í. On the trial of a case brought to recover from a railroad company for personal injuries to the plaintiff, caused by one of defendant’s engines, it was not error for the court to give in charge to the jury section 3033 of the Code. It may, in many instances, require but slight evidence to rebut the presumption of negligence the law raises against the company, but it always remains till removed by the proof, which may be that offered by either side.</p> <p>2. A new trial should not be granted in such a case, because the court gave in charge to the jury section 3031 of the Code, there being testimony from which the jury might find both parties were at fault, and it appearing also that the court gave in charge section 2972.</p> <p>3. On the trial of a suit to recover for personal injuries, it is proper, if the testimony so authorizes, for the jury to allow the plaintiff compensation for the pain and suffering occasioned him, and the court correctly instructed the jury that, in such cases, “the enlightened conscience of an impartial juror is the guide by which the measure of damages may be ascertained.”</p> <p>4. It has been thoroughly settled by repeated rulings of this court, that if there is any evidence to sustain the verdict, and it is satisfactory to the court below, and no error of law was committed by the judge on'the trial, this court will not interfere with his discretion, or grant a new trial.</p> <p>(Head-notes by tbe court.)</p>

<p>1. On the trial of a case brought by a widow against a railroad company to recover damages for the homicide of her husband, testimony to prove that the public had been constantly in the habit of walking on the tracks of defendant’s road, at and near the place where the killing occurred, though it was neither a crossing nor other such place as the public had a right to be, was properly admitted.</p> <p>2. Where one is killed by a locomotive in an incorporated city, ordinances of that city, requiring railroad companies to keep flagmen at certain street crossings and regulating the rate of speed at which trains shall pass such crossings, were properly admitted in testimony, when,,in connection with other testimony, they bore on the question of the company’s negligence at the place of the killing.</p> <p>3. A request to charge that a railroad company was not liable for an injury to a trespasser upon its track, caused by an engine, unless it was shown that the acts of the company’s servants in charge of the engine were wanton and malicious, or there was such gross negligence on their part as was tantamount to wilfulness, was rightly refused. In such cases, the said servants are required to use a degree of care which amounts to more than the mere absence of wantonness, malice or reckless disregard of another’s safety.</p> <p>4. The act^ approved August 27th, 1879, entitled “An act to alter and amend section2970 of the Code,” repealed that entire section.</p> <p>5. The amount of damages to which a widow is entitled from a railroad company for the homicide of her husband should not be reduced by any insurance on his life received by her.</p> <p>6. It is not error for the court to instruct the jury upon the doctrine of contributory negligence and apportionment of damages in a case where the jury would be authorized, under the testimony, to And that both parties were at fault in occasioning the injury for which the action was brought.</p> <p>7. After explaining to the jury the issues made by the pleadings, it is not error for the court to say the pleadings are not evidence, and what is stated in them'is not to be considered by the jury as evidence. On the other hand, this is an entirely proper instruction.</p> <p>8. On the trial of an action for damages, it is not error for the court ■to state to the jury that he uses the word “negligence” in the sense of “carelessness” in his charge to them, especially when the charge contains full and accurate explanations of all the legal degrees of diligence and negligence.</p> <p>9. Whether or not a verdict is contrary to a specified charge of the court, depends upon the testimony applicable to the question to which the charge relates; and if that testimony is conflicting, and the jury believe the witnesses of one party, it does not follow that, at the instance of the other party, the verdict should be set aside as contrary to such charge.</p> <p>10. This court will not review the verdict of a jury, or pass on the question whether it was or was not contrary to the evidence, when there was no motion for a new trial in the court below.</p> <p>(Head-notes by the court.)</p>

Criminal Law. Murder. Circumstantial Evidence. Admissions. Charge of Court. Indictment. Bailiff. Before Judge Branham. Chattooga Superior Court. March Term, 1885.