Volume 75 — Georgia Reports

Estates. Administrators and Executors. Equity. Venue. Jurisdiction. Constitutional Law. Before Judge Harris. Coweta County. At Chambers. January 15,1885.

<p>Constitutional Law. Tax. Fence. Parties. Injunction. Before Judge Branham. Paulding County. At Chambers. July 16, 1885.</p> <p>Reported in the decision.</p>

New Trial. Equity. Bill of Review. Before Judge Simmons and Judge Fain—two cases. Floyd Superior Court. March Term, 1885. These cases originated in a bill which, by amendment, proceeded in the name of Cothran, next friend, et al. vs. Brower et al. The case was referred to an auditor, exceptions to his report were filed, special issues were submitted to a jury, and on their finding a decree was rendered on January 27,1883.

Evidence. Bonds. Officers. 'Revenue Collector. Before Judge Branham. Walker Superior Court. February Term, 1885. Simmons sued out an attachment against Taylor, based on a note and an account.

Corporations. Charters. Stock and Stockholders. Ultra Vires. Before Judge Simmons. Bibb Superior Court. April Term, 1885.

<p>Trusts and Trustees. Statute of Limitations. Contracts. Consideration. Allegata and Probata. Yariance. Equity. Before Judge Lawson. Wilkinson Superior Court. April Term, 1885.</p> <p>Emily E. MeCallam, administratrix of the estate of Archibald MeCallam, deceased, and Saulsbury, Respess & Company, judgment creditors of the same deceased, for themselves and such other creditors as might desire to be made parties, filed their bill against W. E. Carswell, alleging, in brief, as follows :</p> <p>On May 17, 1S70, MeCallam insured his life in the American Life Insurance Company for $5,000, the semiannual premium being about $150.00. This policy was taken out for the benefit of the creditors of the assured, and was made payable to his assigns for their benefit. Saulsbury, Respess & Company furnished the money to pay the premiums until about the 17th of November, 1873. The insured was indebted to Carswell about $1,000, and transferred the policy to him upon the promise that Cars-well would pay over to the estate of the insured all the-surplus remaining after Jbe payment of the debt to Cars-well, and the amounts the latter might have to pay as premiums, and that the assured might at any time pay Carswell what was due him on the debt and the amount of premiums expended, and Carswell would re-transfer the policy to him. The assured was then in very bad health, and only a few premiums would have to be paid; the policy was non-forfeitable and had a paid-up value of $1,200. Saulsbury, Respess ■& Company made the loans for the purpose of paying the premiums prior to the transfer, and believe they were so applied, but they were informed that the policy had lapsed, and were ignorant of the transfer to Carswell until about April or May, 1883. Carswell knew the terms and object of the policy and of the debt to Saulsbury, Respess & Company, which had been reduced to judgment when lie took the policy. Mc-Callam died about October, 1876, and on January 30, 1877, Carswell collected the $5,000 insurance in full. His debt was not more that $1,800 or $2,000, and there remains in his hands about $3,200, to hich he is not entitled, but which should inure to the creditors under the trust created for them. The prayer was that he be required to fulfill and discharge the trust and account for the balance in his hands, after paying what was due him.</p> <p>The defendant demurred to the bill, and answered, denying that any trust was created for creditors, as claimed in the bill, and to the best of his knowledge and belief, denying that the debt to Salisbury, Respess & Company was for money advanced to pay premiums. He also pleaded the statute of limitations.</p> <p>Saulsbury, Respess & Company were stricken from the bill, and it proceeded in the name of the administratrix.</p> <p>On the trial, the.evidence for the complainant was, in brief, as follows: On May 17,- 1870, McCallam took out a policy of insurance for $5,000, which was payable to his executors, administrators and assigns, and the premiums were paid on it. He was indebted to Carswell $1,000, and in 1873, he transferred this policy, by ordinary written assignment, to Carswell. In 1876, he died, and in January, 1877, Oarswell collected the full amount of the policy, less $150.38, the last semi-annual premium which was due. He was not related to the assured. He had stated that the note was not given as collateral, but was assigned to him absolutely in payment of his note, but said he kept the note and did not surrender it, because it was understood that if McCallam should ever pay the note, Carswell would surrender the policy to him. He has never accounted to the administratrix.</p> <p>On the close.of the evidence for the complainant, the defendant moved to dismiss the bill because the cause of action was barred by the statute of limitations. The court held that no express trust was shown, and that, considered as an implied trust, the period of limitations applicable to to such a case was four years from the collection of the money (not from demand), and not ten years. He dismissed the case, and the complainant excepted</p>

Charge' of Court. Contracts. Principal and Agent Before Judge Harden. City Court of Savannah. July Term, 1885. To the report contained in the decision, it is necessary to add only that the evidence for the plaintiff, which it was claimed established the ágency of Morse for the defendant, was, in brief, as follows: ■ The plaintiff was working in New Orleans. One day he met Morse at the house of the latter. Morse asked him how much he was g'etting per day. He replied $2.75.

Negotiable Instruments. Drafts. Acceptance. Principal and Surety. Before Judge Adams. Chatham Superior Court. June Term, 1885. Ella W. Smith, as assignee from the executor of A. N. Porter, brought complaint against W. T. Gibson on the draft set out in the decision.

Municipal Corporations. Tax. Constitutional Law. •Contracts. Injunction. Before Judge Adams. Chatham •Superior Court. June Term, 1885. Crawford & Lovell et al. filed their bill against the Mayor and Aldermen of the City of Savannah to enjoin the -collection of a tax which, they alleged to be illegal.

<p>1. The directors and managers of a corporation, who control and have charge of its effects, are trustees for the stockholders, and both they and others who, with the knowledge of their misappropriation, aid them in diverting its property, would be liable to the injured parties.</p> <p>2. Equity was the proper forum in which to seek relief in such a case, and the bill was properly brought in the name of some of the stockholders in behalf of themselves and such of their co-corporators as are in a similar condition.</p> <p>3. The bill is not multifarious nor objectionable on the ground of misjoinder of parties or causes of action.</p> <p>4. There being no prayer for either an injunction or a receiver previous to the final trial, the bill was properly filed without the sanction of the judge.</p> <p>(a.) This case does not fall within the rule laid down in The Knoxville Iron Company vs. Wilkins, Post & Company et al., 74 Ga., 493.</p>

Railroads. Damages. Negligence. Non-suit. Laws. Before Judge Marshall J. Clarke. City Court of Atlanta. June Term. 1SS5.

Railroads. Damages. Negligence. Verdict. Before Judge Harris. Coweta Superior Court. March Term,. 1885. Condor brought his action of trespass against the AV lanta and West Point Railroad Company, laying his danaF ages at $5.090., On the trial, the evidence for the plaintiff was, in brief, as follows : The plaintiff was a passenger on the defendant’s train from Palmetto to Newnan. His baggage was in the smoking-car, and he was sitting in the ladies’ or first-class car.

<p>Drafts. Negotiable Instruments. Indorsement. Principal and Agent. Evidence. Before Judge Mershon. Camden Superior Court. April Term, 1885.</p> <p>Scarlett sued Bedell, as maker, and Miller, as indorser, on the following drafts ;</p> <p>“$171.67. Owen3 Ferby, Ga., December 21, 1882.</p> <p>“Pay to the order of J. W. Miller one hundred and seventy-one Vi4 dollars, value received, and charge the same to account of</p> <p>J. K. Bed?ll, Ag’t.</p> <p>To Messrs. Fox & Burns, St. Marys, Ga.</p> <p>(Indorsed) J. W. Miller.”</p> <p>The other draff sued on was for $72.37, in all other respects, similar to the above.</p> <p>Bedell pleaded the general issue, and a special plea, as follows:</p> <p>“The drafts were given in payment of timber purchased by this defendant from J. W. Miller as the agent of Fox & Burns; that said timber was purchased for Fox & Burns, and for their use, and was delivered to them by J. W. Miller; that defendant was only the purchasing agent of Fox & Burns and had no interest in said timber, which fact was well known to and understood by both J. W. Miller and F. M. Scarlett; and the said drafts were made by defendant and received by Miller wilh full understanding that defendant was only the agent of Fox & Bums, and said draft was accepted and received by F. M. Scarlett and J. W. Miller with full notice and with the knowledge and understanding that they took and received said drafts on the faith of payment by Fox & Bums, and that they alone, and not this defendant, were liable thereon, and that defendant was only the agent of Fox & Bums and would not be liable for payment.”</p> <p>Plaintiff introduced original drafts. Defendant admitted presentation and refusal to pay, and plaintiff closed.</p> <p>Defendant offered to sustain his plea by bis parol testimony, which, being objected to, was excluded.</p> <p>The verdict was in favor of plaintiff, and defendant moved for a new trial, on the following grounds :</p> <p>(1.) Because the court refused to allow defendant to introduce parol evidence to support his plea as agent for Fox & Burns.</p> <p>(2) and (3.) Because the verdict is contrary to law and evidence.</p> <p>This motion was overruled, and defendant excepted.</p>

<p>Practice in Superior Court. Equity. Verdict. Decree. Purchase Money. Liens. Charge of Court. Debtor and Creditor. Executions. Evidence. Jury and Jurors. Promissory Notes. Judgments. Money Rule. Before Judge Willis. Olay Superior Court. March Term, 1885.</p> <p>To the report contained in the decision, it is necessary to add only that the following were, in substance, the grounds of the motion for a new trial:</p> <p>(1), (2), (9), (10), (15). These grounds all rest on allegations that the issues submitted by the judge to the jury were vague, general arid indefinite, were not properly framed, and tended to confuse and mislead the jury ; also that the court refused to submit certain issues of fact offered by counsel for the contesting creditors. The issues which were refused required the jury to go more into details and particulars as to notes paid, payments made, etc., than the more comprehensive issues submitted by the judge. He refused them, on the ground that they were substantially covered by the issues submitted, without going into minor particulars.</p> <p>(3), (4). Because the verdict does hot cover the material issues in the case, and is contrary to law.</p> <p>(5), (6), (7). Because the decree does not follow the verdict, has no verdict to support it, and is contrary to law and evidence.</p> <p>(8.) This ground complains of a refusal to give each of nine requests in charge. The only legal principles involved in these requests which are considered in the decision are as follows:</p> <p>(a.) That where suit is brought on notes given for the purchase money of land, a special lien must be declared in the face of the declaration and judgment in order to' file a deed and sell the land under §3654 of the Code, and to have a lien on the proceeds superior to other liens; and that, in default of this, the plaintiffs in Ji-fa. would have only a general judgment against the defendant, and that parol testimony could not be introduced to show the nature of the claim, so as to fix a special lien on the fund as against contesting creditors.</p> <p>(b.) That a judgment for $2,697.03, principal, and $46.15, interest, and $250 attorneys’ fees, besides costs, rendered in favor of Slade & Etheridge, was void, because rendered by the court. [The note was for a named amount of principal, which was stated to be due for part of the purchase money of certain lots of land. It then provided that “ if this note is not paid at maturity, I agree to pay all expenses of suit and lawyers’ fees incidental to its collection.” The declaration based on this note alleged that it was not paid at maturity, and- that the plaintiff had incurred attorneys’ fees thereon of ten per cent on the amount of the debt. The court rendered judgment by default for the principal, interest and attorneys’ fees.]</p> <p>(c.) “ That if the jury find as true that Atkins & Tumlin paid, themselves or through others, to Pace the first three notes made to Pace, and agreed with Slade & Etheridge and Pace, on or about December 15th, 1880, that Pace should make title to Slade & Etheridge of the lands in question, originally mentioned in Pace’s agreement to convey (or bond for titles), and that Slade & Etheridge should include debts of Atkins & Tumlin along with the amount then due Pace, $2,743.75, besides interest, and dividing the said total sum between Atkins & Tumlin, and adding to said one-half Tumlin’s individual debt to Slade & Etheridge, that Slale & Etheridge should make bond for titles to Tumlin aforesaid, and did make said bond in pursuance of said agreement (which bond is in evidence), then the one-half of said $2,743.75, besides interest, which Tumlin agreed to pay Slade & Etheridge, which they had to pay to Pace, was all that Tumlin was obligated for, as for purchase money of the land sold, and all of the other money added in the notes Tumlin gave to Slade and-Etheridge in January, 1881, was money loaned by Slade & Etheridge to Tumlin and secured by said title to land ; but in this contest for money, if said judgments of Slade & Etheridge are good as special judgments, they .can only prevail as against judgments against Tumlin, dated prior to December 15th, 1880, in force, to the extent of $1,371.87 and interest; that is to say, that said-sum of $1,371.87, besides interest, would be all that could be claimed by Slade & Etherdige, as superior to judgments aforesaid, at most; and if further reduced by a payment of $500, then said $500 deducted would diminish the amount so much.”</p> <p>(cl.) [This request appears in the record so confusedly as to be almost unintelligible, but appears to be a repetition of the principles in (a) above.]</p> <p>(e.) That the jury must weigh the evidence and be governed by the preponderance of it on all the issues before them, and can give to the testimony of each witness such credit as they may think he is fairly entitled to, and can take into consideration the bias and interest of each witness, if any can be discovered, and must find their verdict upon the testimony taken as a whole,</p> <p>(16.) Because the court charged as follows: “In the first place, were the executions of Slade & Etheridge for the purchase money of the property sold that brought this money into court?”—The objection was that this was all there is, in substance, in the charge on this matter, and that this was a vague and uncertain presentation of this branch of the case and did not present to the jury all the law applicable to it.</p> <p>(17.) Because the court charged as follows : “ If a party owes two debts to one man and sends him money or property, he has the right to direct to which one of them the debt shall be appropriated,”'etc'.—The objection was that this misled the jury.</p> <p>(18.) Because the verdict did not find any amount of money from the fund in dispute as due to Slade & Etheridge on their execution. [An agreement of counsel appears in the record that the jury need not find any amounts of judgments, etc., but the court might calculate them.]</p> <p>(19) , (22). Because the decree was wrong in the amount it found in favor of Slade & Etheridge.</p> <p>(20) , (21). [These grounds complain that the court ruled substantially as set out in subdivision (a) under the eighth ground.]</p> <p>(23.) Because the court admitted in evidence the entries of the sheriff on the Slade & Etheridge fi. fas. and the sheriff’s advertisement.—The objection was that these were irrelevant. [The entries and advertisement were in the usual form, except that at the close of the description of the property to be sold, the latter contained this clause:</p> <p>“ Levied on as the property of the defendant, William M. Tumlin, the amount of his interest therein being the fee simple title thereto conveyed by a deed made to him by the plaintiffs in this fi. fa., and filed and recorded in the clerk’s office of the superior court of Early and Clay counties to enforce the collection of purchase money for the land herein described.”]</p> <p>(24.) Because the court admitted the clerk’s entry on the deed of Slade & Etheridge to Wm. M. Tumlin. [This entry was as follows:</p> <p>“State of Georgia, Early county. Filed in office, and recorded in deed book O, folio 170 and 171, this 28th day of November, 1883, at the instance of Slade & Etheridge, to enforce collection of purchase money under section 3654 of the Code of 1882. Judgment obtained in Randolph superior court.”</p> <p>The deed was filed and recorded in Clay county also, and a similar entry made by the clerk there.]</p> <p>(25) , (28), (29). These all turn on the rejection of testimony to show the value of the property out of which the fund in court arose, and what one of its owners would have taken for it.</p> <p>(26) , (27). Because the court permitted witnesses, Tumlin and Slade, to be asked as to liens on crops given by Atkins & Tumlim to Slade & Etheridge, and their character,—the objection being that this was secondary, irrelevant and tending to confuse the jury.</p> <p>(30.) Because when the verdict was returned, the finding was that the exceptions of Slade & Etheridge were for the purchase money for the land from which the fund in court arose. Immediately afterwards, some of the jury informed counsel for contesting creditors that it was not so agreed upon,—-that the finding should be that the executions were for part of the purchase money, and that they would have called attention to it when it was read, but that counsel who received it had his back to them and read it in a low tone, and they did not hear it distinctly. Counsel for the contesting creditors arose and called the attention of the court to’this statement, but it appeared that the jury had dispersed and some of them had left the courtroom.</p> <p>The motion was overruled, and the movants excepted.</p>

Actions. Damages. Torts. Malice. Before Judge Simmons. Richmond Superior Court. October Adjourned Term, 1884.

New Trial. Practice in Superior Court. Before Judge Mershon. Glynn Superior Court. May Term, 1885. These were two motions for new trial on extraordinary grounds, made at the May term, 1885, of Glynn superior court. The verdict in the case of the E. T. Ya. & Ga. Railroad was rendered on May 21,1884; that in the case of Norrie & Johnson on June 20,1884.

<p>1. Equity has jurisdiction concurrently with law in all cases of fraud; and courts of equity more readily raise and act upon a presumption of fraud than courts of law, from facts pointing thereto. In this case, rank fraud is admitted by the demurrer, covered up by three or four different claimants to the property, and it is quite difficult to determine against whom to proceed as the real owner.</p> <p>2. In case of circuity of action and multiplicity of suits, where there are assets to be administered and disposed of among creditors, equity has jurisdiction; and it will entertain a bill to avoid a multitude of suits by establishing a right in favor of or against several persons which is likely to be the subject of legal controversy, or in similar cases. Although such a bill generally is filed to establish a right to property for which continuous suits are brought or threatened, yet it is applicable to such a contention over the only fund available.</p> <p>3. A court of equity may appoint a receiver to take possession of and hold, subject to the direction of the court, any assets charged with the payment of debts, where there is manifest danger of loss or destruction, or material injury to those interested, or where any fund or property may be in litigation and the rights of either or both parties cannot otherwise be fully protected. •</p> <p>4. A bill alleged as follows: Complainants are laborers, and have claims for various sums due them for labor connected with a show. Defendants conspired together to cheat them out of their wages, and, with that view, carried the property to the Georgia line, and discharged complainants without money. Defendants are non-residents and insolvent. They include the head of the show, his wife and others who claim an interest in or ownership of the property. Complainants have attached it at law, some in a justice’s and some in the superior court, but were compelled to go security for each othe”, and the bonds may be held insufficient and the attachments dismissed. Some of them have foreclosed laborers’ liens, and have had them levied. These creditors num- . her all together about thirty-six. They fear that the property may be carried beyond the state and lost to them. Claims to a portion of the property attached have been put in by the wife of the leading defendant, and thus there are numerous attachments, levies and' claims:</p> <p>Held, that the complainants have no complete remedy at law, and equity will grant them relief.</p> <p>5. This case does not fall within the ruling in Cubbedge & Hazelhurst vs. Adams, 42 Ga., 124, on the ground that complainants are not judgment creditors and cannot invoke injunction and the appointment of a receiver. They have general laborers’ liens on all the property, and some of them have levied.</p> <p>(a.) Creditors’ bills may be filed at the instance of any creditor, the privilege being extended to all to appear and become parties in a reasonable time; and the rights of creditors are to be favored by the courts and every remedy and facility afforded them to detect, defeat and annul any effort to defraud them of their just rights.</p>

<p>In the tenth item of a will the testator provided as follows: “I bequeath unto Dr. Thomas B. Hutchinson, of the county of Oglethorpe, in trust, the sum of eighteen thousand dollars, first to be taken out of the proceeds of the sale of realty,” etc., and then followed the cetiuis que trust, etc. In another item he provided that “the other third of said eighteen thousand dollars, or bonds and securities into which it may be invested, I bequeath,” etc.:</p> <p>Held, that the legacy in the tenth item was not a specific legacy of property, but a legacy of an amount of money which was to be raised in the first place from the proceeds of the sale of realty; and if that were insufficient, then from the residuum—the balance of the estate except specific legacies.</p>

<p>Partnership. Debtor and Creditor. Contracts. Master and Servant. Before Judge Eve. City Court of Richmond County. June Term, 1885.</p> <p>Reported in the decision.</p>

Trusts and Trustees. Title. Sales. Jurisdiction. Evidence. Before Judge Carswell. Emanuel Superior Court. April Term, 1885. To the report contained in the decision, it is necessary to add only that the deed, on the construction of which the decision rested, was from John Mobley, Sr., to Mary Pughsley and her children. The recited consideration was $1,000 and the love and affection which the grantor had for his daughter, the said Mary.

Verdict. Charge,of Court. Trusts and Trustees. Equity-Fraud. Principal and Agent. Estoppel. Evidence. Before Judge Wiuus. Muscogee Superior Court. May Term, 1885.

<p>Municipal Corporations. Streets and Sidewalks. Nuisance. Damages. Non-suit. Before Judge Clark. City Court of Atlanta. June Term, 1885.</p> <p>Two cases, brought in 1882 and 1883 respectively by Mrs. Smith, against the city of Atlanta for damages, were tried together. The testimony for the plaintiff showed, in brief, as follows : The city had changed a cul vert from one point on Hunter street to another, and had extended it diagonally across the street and changed its direction, and so maintained it; before that time, there was sufficient fall in the drain to carry off the sewage, but since then the drainage had to be carried further and with a less fall in proportion to distance, and at every hard rain the lot of the plaintiff was overflowed and foul deposits were left upon it, rendering it unhealthy and offensive as a residence, producing sickness and damaging its rental value from one-third to one-half. Prior to its construction, there was a gully or natural drain which carried off the water; this ran near the edge of the plaintiff’s lot, but not on it. About 1870, Hunter street was worked out and graded, and the place where the drain was was filled up several feet. This rendered a sewer or culvert necessary, and as a part of the system of grading and draining the streets, this culvert and change in its direction and location occurred. An engineer testified that he thought it was in the wrong place; but when asked whether the city engineer, who was in office at the time of its construction, was a skilful engineer, he answered in the affirmative.</p> <p>On motion, the court awarded a non-suit, and the plaintiff excepted.</p>

Elections. Ordinary. Prohibition. Equity. Courts. Officer. Before Judge Lumpkin. Elbert Superior Court. September Term, 1885. Seymour and others filed their petition for prohibition to prevent the ordinary from determining and declaring the result of an election held on the question of fence or no fence.

Pleadings. Verdict. Practice in Superior Court. Evidence. New Trial. Charge of Court. Statute of Limitations. Mutual Accounts. Before Judge Pottle. Oglethorpe Superior Court. October Term, 1884.

'Wills. Estates. Evidence. Before Judge Adams. Chatham Superior Court. June Term, 1885.

<p>Trusts find Trustees. Mortgages. Liens. Powers. Interest and Usury. Before Judge Hammond. Fulton Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Deeds. Evidence. Witness. Charge of Court. Estates. Before Judge Adams. Liberty Superior Court. May Term, 18S5.</p> <p>Reported in the decision.</p>

Landlord and Tenant. Liens. Distress Warrant. Before Judge Lumpkin. Hart Superior Court. March Term, 1885 McDougal made an affidavit to obtain á distress warrant against Sanders, stating as follows: “ T. H. Sanders, his tenant, of said county, is indebted to him five bales of good middling cotton, each bale weighing 400 pounds, ,in all making 2,000 pounds of lint cotton, worth the sum of about twohunhundred dollars, for rent, which the said T. II.

Practice in Supreme Court. Practice in Superior Court New Trial. Before Judge Hammond. Pulton Superior Court. October Term, 1884.

<p>Principal and Agent. Banks. Notice. Contracts. Charge of Court. Verdict. Before Judge Harden. City-Court of Savannah. July Term, 1885.</p> <p>To the report contained in the decision, it is necessary to add only that the jury found for the plaintiff $3,565.62, principal (the suit being for $9,000.00, principal.) The plaintiff moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the verdict was contrary to law and evidence.</p> <p>(2.) Because the court charged the jury as follows:</p> <p>“ Now as to the question of the difference in price—the third plea. This plea is based on the idea that the other pleas are wrong and will not be sustained. A man may file as many and as contradictory pleas as he wants to; he may say I don’t owe this money at all, and give my reasons in the second and fourth pleas; but if you find that this is really my note, and that I am liable on it, then my dealing with Mr. Hatch was a dealing with the bank; thus if this note was Mr. Hartridge’s, even though held for the benefit of Mr. Hatch, if these securities were‘Mr. Hart-ridge’s, then Mr. Hartridge, in talking to Mr. Hatch, if he was the proper officer—and you have heard the testimony on that point—may have been talking to Mr. Hatch, the cashier, dealing with the man who was representing the bank, because on that supposition Mr. Hatch is no longer responsible to the bank, though he may be responsible to Mr. Hartidge, and Mr. Hartridge responsible to the bank; and Mr. Hatch had no interest in the matter so far as between himself and the bank, his interest being outside of the direct transaction, so that when Mr. Hartridge went to see him, he may have gone to see him as an officer of the bank to have the transfers made, or may have consulted him as an individual, as an interested person.”—Error was assigned in this charge because, first, it did not correctly state the plea referred to or the meaning of it, but presented for the consideration of the j ury issues not in the case and was without evidence to support it; second, because it was without evidence to warrant its being given.”</p> <p>(3.) Because the court charged the jury as follows: “ The person who has pledged his stock to secure a loan transfers to the, bank the right to dispose of it for the purpose of protecting itself, but they must use reasonable care, diligence and discretion in disposing.of it; then if he wants to get that collateral out, he can offer other security of equal value, and if they consent to the exchange, it can be made; if they refuse, it cannot, or he must pay the debt. If he says ‘ I want to sell the stock, the stock will bring enough, to pay the debt,’ they must let him sell it and pay the debt; but if it will not bring enough to pay the debt, they are not bound to let him sell it, unless he gives them indemnification, which they accept, or pays them the difference. If they have $20,000 lent on security which was worth that much, but which shrunk to $19,000, he would not have the right to say,{Sell these securities for $19,000,’ unless he said also, ‘ Here is the money or other good security for the balance’; otherwise you cannot expect them to consent; they have a right to control it, but yet with reasonable care and diligence. I still have an interest in it, that is, that you shall protect yourself, but not cause me unnecessary loss; in helping yourself, you must not hurt me more than the necessity of the case, with fair judgment, requires.”—Said charge being specially erroneous, first, in that it was without evidence to warrant its being given; second, in that it was contrary to law; third, in that it was otherwise illegal.</p> <p>(1.) Because the court charged the jury as follows: !i Strictly speaking, under the contract, the securities could be demanded only upon payment of the debt or tender of other collateral acceptable to the bank. But if Hartridge was dealing with Hatch as cashier, and if Hatch was authorized by the bank to act as cashier in this matter, and Hartridge offered to pay the debt with the proceeds of the sale, and his check for the balance, and the stock was refused to be surrendered, then you may determine whether such refusal wras the exercise of reasonable control or not; whether or not the offer made by Hartridge was a reasonable offer, which the bank ought to have accepted, or whether it was an offer which the bank in reason and prudence ought not to accept; bearing in mind that the bank has discretion in*the matter, which is not to be interfered with, unless, in your opinion, that discretion was improperly used, used without judgment; unless, in your opinion, they were trying to help themselves in a way not authorized by the circumstances surrounding it.”—Said charge being specially erroneous, first, in that, under the evidence in this case, Hartridge could not deal with Hatch, cashier; Hatch was not authorized by the bank to act as cashier in this matter, and Hartridge never offered to pay the debt; second, in that said charge altered the rights possessed by the bank under the written pledge contained in the note sued on; third, in that it left to the -jury to determine whether the bank had exercised a reasonable discretion, if1 they believed that Hartridge made 'an offer to pay the debt, and the bank refused it, while there was no evidence of any offer made by Hartridge to the bank to pay the debt, no refusal on the part of the bank to accept payment of the debt; fourth, in that the said charge was otherwise illegal.</p> <p>(5.) Because the court charged the jury, at defendant’s request, as follows: “If the jury find from the evidence that the defendant, A. L. Hartridge, was pexsonally bound on the note given to said bank, but further find that said Milo Hatch, the cashier of said bank, had a personal interest in the railroad stock, pledged to secure said note, and that said bank, through its executive officers, knew that its said cashier had such personal interest, and still perxnitted him, as cashiei*, to conduct and manage tho details of said loan, then I charge you that such personal -interest in said loan and stock did not debar said Hatch from representing said bank ixi said transaction, as its cashier ; • and that if said defendant called upon said Milo Hatch, as the cashier of ■said bank, and demanded a sale of said collaterals, with the intention of paying the difference between their then value and the amount due on the note, which said intention was made known to said cashier, and of then and there taking up said note and terminating said loan; that said cashier refused to allow the sale of said collateral and the consummation of said purpose ; and that said stock continued to depreciate in value, and was subsequently sold by said bank at a heavy loss, then I charge, if you find that such loss was due to the refusal of said bank, without süfficient reason, to sell said collateral, at the request of defendant, and to allow him to pay the difference and take up said demand loan, that you are authorized to deduct from the sum you may find due to the plaintiff on skid noté the amount of depreciation in value of said stock between the time when défendant made an effort to have said stock sold and the time of its actual sale-by said bank. But this only on the supposition that you find that the bank knew of Hatch’s interest, and authorized him to continue to manage the transaction.” — Said charge being specially erroneous, first, in that it was without evidence to support it; second, in that it was contrary to law.</p> <p>(33.) Because the court refused to give to the jury the following charge: “ If the jury find that Mr. Hartridge and Mr. Hatch agreed that the stock should be° sold by Mr. Hartridge; that Mr. Hartridge thereupon sold the stock upon time sales; that Mr. Hatch, when called upon by Mr. Hartridge for the stock, refused to deliver it, not because the sales were ‘made on timé, but because the loss was too great; that Mr. Hartridge intended, if Hatch delivered the stock, to realize on it at once and pay the proceeds to the bank, and then to pay the bank the balance due on the note, taking from Hatch to secure the reimbursement to him, Hartridge, of this balance, a part payment in cash, a policy of insurance on the life of Hatch, and an agreement to settle any deficiency by installments; and that Hatch knew of this intention of Hartridge, then your verdict should be against defendant on third plea.”</p> <p>The motion was overruled, and the plaintiff excepted.</p>

Criminal Law. Indictment. Demurrer. Forgery. Before Judge Hammond. Fulton Superior Court. April Term, 1885. McGarr was indicted for forgery. The indictment charged that the defendant forged a receipt or acquittance in the name of Mark W. Johnson for $20 for goods bought from him by B. W. Fields, said receipt being signed “ Mark W. Johnson, p. Smith,” with intent to defraud said Mark W. Johnson and B. W Fields.

Deeds. Mortgages. Interest and Usury. Title. Practice in Supreme Court. Equity. Words and Phrases. Liens. Vendor and Purchaser. Before Judge Lawson. Jones Superior Court. April Term, 1885.

Process. Nullities. Practice in Superior Court. Waiver. Estoppel. New Trial. Before Judge Lumpkin. Warren-Superior Court. April Term, 1885. Thompson sued Mayes on an unconditional contract in writing to April term, 1874, of Warren superior court.

<p>1. The charge of the court in this case was not a full and fair presentation of th,e law applicable to it. It was argumentative, and presented the law more favorably to the defendant than it was entitied to.</p> <p>2. It is the duty o. a city to keep its streets and sidewalks in a reasonably safe condition, so that a person can pass thereon in safety by day or night; and for neglect to do so,' it will be liable for injuries caused thereby. If the defect has existed for some time, the city is chargeable with notice thereof, and if it could have ascertained the defect, its failure to do so is negligence on its part, and its liability is the same as if it had notice of such defect. It was, therefore, error to charge that the defect must have been of such a character, so open and notorious, and must have existed such a length of time, in the j' udgment of the j‘ury, to charge the city with notice.</p>

<p>Estates. Tenants in Common. Prescription. Levy and Sale. Deeds. Before Judge Clarke. Fulton Superior Court. April Term, 1885.</p> <p>On April 18,1882, Mrs. Mary A. Davis filed her petition for partition, alleging that J. E. Morris and J. A. Defoor, as trustees of Lou Ida Davis and Mollie O. Davis, minors, were in possession of a lot fronting fifty-two feet on Forsyth street and running back seventy feet, in the city of Atlanta; that she claimed a one-third interest in twenty-seven feet of the northwest portion of the lot and improvements and one-sixth of the balance of the lot. (The notice of intention to apply for the writ stated the possession to be held by the defendants “ as trustees and guardian,” and the bill of exceptions states it as “ guardians and trustees,” • but the petition and writ state the case as above.)</p> <p>The defendants filed their plea, denying that the petitioner had any interest in the land, and issue was joined.</p> <p>The testimony of the petitioner was, in brief, as follows: She was married to L. H. Davis in December, 1873, and lived with him until the fall of 1874, when they separated, and she sued for and obtained a divorce. Davis had previously been married, and in 1874 was in possession of the property with his family. His former wife died in 1873, leaving two children, Lou Ida and Mollie 0. The petitioner was never in personal possession of the property, but Davis continued in possession, “ as guardian ” for her and the children, up to the time C. 0. Morris took possession as such guardian, and he held up to the time of his death. Morris and Davis, as trustees and guardians for the children, have held since. In 1875 or 1876, the petitioner placed her claim in the hands of certain attorneys, but nothing was done with it, and she placed it in the hands of her present attorney. She never gave in the property for taxation, because she was advised by her attorney that it was not necessary, as the other co -tenants were in possession of it and would pay the taxes. She had $4,000 at the date of her marriage with Davis.</p> <p>On behalf of the defendants, John T. Morris testified that L. H. Davis, as guardian for his children, was in possession of the property in 1873, and so continued until 1877, when he was succeeded as guardian by C. 0. Morris, and he remained on the property as the tenant of the guardian until 1880, when Morris died, and the defendants, as trustees or guardians for the children, had been in possession ever since.</p> <p>• On January 4, 186S, 0. 0. Morris made a deed to Mrs. Lizzie E. Davis (the former wife of L. H. Davis), conveying part of the land in dispute, fronting twenty-seven feet on Forsyth street, for the expressed- consideration of $400. On January 31, 1870, L. H. Davis made a deed of gift to his then wife, Lizzie E. Davis, for the support of herself and her present and future children, conveying the other part of the disputed property, fronting twenty-five feet on Forsyth street. Lizzie E. Davis died in 1873. On January 10,1874, L. H. Davis made a deed to the petitioner (his second wife) on the expressed consideration of $400, conveying the property in dispute and other property.</p> <p>On April 3, 1877, the sheriff made a deed to Alfred Austell, conveying the entire property for the expressed consideration of $53.20. This was based on a sale under a state and county taTi.fi. fa. against L. H. Davis, guardian for his children, the amount of taxes being $43.50. The advertisement of this sale was published on Tuesday, March 6, Sunday, March 11, Sunday, March 18, and Tues -. day, March 27, 1877. The levy described the land as follows :</p> <p>“A lot and the improvements thereon on Forsyth street in the first ward of the city of Atlanta, adjoining the property of Seago and Grant, part of land lot No. 77 of the 14th district of originally Henry, now Fulton county, Georgia, containing fifty-five feet by seventy feet, more or less, as the property of L. H. Davis, guardian for children.”</p> <p>On November 2,1874, Austell made a deed conveying the entire property to T. H. Selman and R. D. Smith. On January 17, 1879, Selman and Smith made a deed to 0.0. Morris.</p> <p>The jury found for the petitioner one-third interest in the lot having 27 feet front and one-ninth interest in the lot having 25 feet front. The defendant moved for a new trial, on the following grounds:</p> <p>■;(1) and (2.) Because the verdict was contrary to law and evidence.</p> <p>(3.) Because the court refused to submit to the jury the issue made by the defendants’ claim to a prescriptive title to the premises, and should have charged upon the subject of color of title and possession to perfect such color of title, as requested by defendants.</p> <p>(4.) Because the court charged as follows: “If you shall believe from the evidence that the sheriff’s advertisement, which brought the property to sale for taxes, ran less than four weeks before the day of sale, or that one or more of said weekly advertisement, which were necessary to make the requisite number, were published on Sunday, then the purchaser at such sheriff’s sale would get no title, whether such purchaser, at the time of such purchase, had notice or not; that said property had not been advertised according to law by said sheriff before said sale; that such sale was void, and passed no title, and that such purchaser could pass no title to a subsequent bona fide purchaser from him. There could be no such person as a bona fide purchaser at such sale. It was his duty to see that the sheriff had advertised said sale according to law, and that he could not protect his purchase by want, of notice of such failure upon the part of the sheriff.”</p> <p>(5.) Because the court erred in holding that the deed made by L. H. Davis to his wife, Lizzie E. Davis, and her children, dated 31st January, 1870, conveyed such an interest to her in the property therein described as would pass to her heirs at her death.</p> <p>The motion was overruled, and the defendants excepted.</p>

Evidence. Year’s Support. Homestead. Title. Before Judge Roney. Warren County. At Chambers. July 23, 1885. To the repoi't contained in the decision, it is necessary to add only that the defendants in ejectment (complainants in the bill) relied on a deed made in 1871 by Mrs. Ann D. Wallace (now Aun D. Cox) to E. P. Heath and R. A. Heath, under whom the complainants claimed.

Charge of Court. Practice in Superior Court. Evidence. Pleadings. Justification. Malicious Arrest. Malicious Prosecution. Verdict. Before Judge Clarke. City Court of Atlanta.

Criminal Law. Dying Declarations. Evidence. Charge of Court. Practice in Superior Court. Witness. Before Judge Hammond. Fulton Superior Court. April Term, 1885. To the report contained in the decision, it is necessary to add only that the following were among the grounds of the motion for a new trial: (1.) Because the verdict was contrary to law and evidence.

<p>1. By his will the testator bequeathed to his wife a large number of slaves, his plantation stock, farming tools an d utensils, household and kitchen furniture, horses, mules, cattle, etc., all of which property she was to háve during her natural life or widowhood, and which, in the event of her intermarriage, was to be equally divided between the children of herself and the testator. After specific bequests to two of his sons, testator’s will provided as follows : "And the remainder of my estate, both real and personal, to be equally divided between my children” (naming them). Prior to the execution of the will, a daughter of the testator died, leaving a child. The testator owned no other lands tha n those covered by the bequest to his wife:</p> <p>Held, that it was the intention of the testator to dispose of his entire estate by his will, and it was not his purpose to die intestate as to any portion of his property. •</p> <p>2. On the death of the wife, the lands passed to the children of the testator, and the child of his deceased daughter took no interest therein.</p>

Water and Water Courses. Actions. Damages. Landlord and Tenant. Railroads. Before Judge Adams. Chatham Superior Court. June Term, 1885. Suit for damages was brought by Spears against Lawton and the Savannah, Florida and Western Railway Company. The following,-in connection with the decision, reports the case : Lawton and another, trustees, held the title to certain land near the Savannah river and a creek running into it.

Criminal Law.. Master and Servant. Damages. Verdict. Before Judge Carswell. Bulloch Superior Court.April Term, 1885. Goodman, Howell & Company brought an action for damages against K. A. Smith for enticing away laborers pending their term of service. On the trial, the evidence for the plaintiff was, in brief, as follows: The plaintiffs sent an agent to North Carolina to secure hands to work on their turpentine farm, and secured nine.

<p>Bes Adjudieata. Deeds. Injunction. Title. Equity. Before Judge Simmons. Bibb Superior Court. April Term, 1885.</p> <p>On March 29, 1884, Georgia E. Crockett died her bill against Earlsworth Crockett, alleging, in brief, as follows: On August 2,1880, the defendant conveyed to the complainant a one-half interest in certain real estate lying on McIntosh and Bass streets in the city of Macon. The deed contained the following clauses:</p> <p>“To have and to hold said one undivided half interest in said premises to the said Georgia E. Crockett for and during her natural life, with power in the said Georgia E. Crockett to dispose of the same by will in any way and manner that she may see fit and proper, subject, nevertheless, to the following limitatibns'and conditions—thatis to say, that the said E. Crockett is to retain possession and control of said property during his lifetime; provided, nevertheless, the said Georgia E. Crockett is to receive, during the lifetime of the said E. Crockett, one-fourth of all rents or income accruing from said property on McIntosh street; and *provided, also, that the said Georgia E. Crockett shall have the right to live in the house on Bass street with the said E. Crockett, but no one else of the family of the said E. Crockett shall have or exercise this right of living with said E. Crockett in said house on B.i ss Street, except the youngest brother of the said Georgia E., to-wit, Charles W. Crockett, and he only so long as he shall remain singl e and unmarried; and provided, also, should any income be derived from said house and lot on Bass street, by rent or otherwise, the said Georgia E. is to have and receive one-half of said rent, after paying for repairs, insurance and taxes thereon. The property hereby conveyed to the said Georgia E. Crockett is not in any way or event to be subject to the debts, contracts or liabilities of any husband she may have, and should the said Georgia E. Crockett fail to dispose of the property herein conveyed to her, by will, as herein authorized and empowered, said property, at the death of said Georgia E. Crockett, is to revert to the said E. Crockett; and the said E. Crockett will, and his heirs, executors and administrators shall, the said undivided half interest in the premises aforesaid to the said Georgia E. Crockett forever warrant and defend.”</p> <p>Tbe defendant has kept possession of the property, collected rent and managed and controlled it. He has, however, failed and refused to pay over to the complainant her share of the rents. In 1883, the Bass street house was rented to one Crossland for $37.50 per month, and she was entitled to one half thereof. The defendant, with his family, was occupying his own house next door, but in July, 1883, he exchanged with Crossland and moved his family into the Bass street house. Inasmuch as it is covenanted in the deed that no one of the family, except himself, is to occupy said house, he is as liable for rent as if Crossland had continued to occupy it, and he is bound to pay to her her part of the rent. The rents are collected in small amounts. The complainant has twice been compelled to sue the defendant at law for her share of the rents, and the cases are still pending, and she will be compelled continually to bring suits. He has paid only a small amount to her, and is largely in arrears. She has no other means of support. She has proposed to have an agent to collect the rents for both, but this has-been rejected. The prayers were for a receiver to collect the rents; that the defendant be enjoined from interfering therewith; and that, on the final hearing, he be required to account fully to the complainant in respect to all rents not included in the two suits pending; for subpoena and general relief.</p> <p>By amendment, it was prayed that the common law cases should be consolidated with this, and the entire question be determined at once.</p> <p>The defendant answered, in brief, as follows : The deed does not convey the rights set up by the complainant. It' it does, it does not speak the true intention which he had in making it. He made out and gave to Isaac Hardeman, Esq., certain written instructions for drawing the deed, it being a voluntary deed, the only material portion of which was as follows: “ During her lifetime, Georgia to receive one-fourth of all rents and income, after paying taxes and insurance and all other expenses required to keep the property in good repair.” All that part of the instructions, as to the payment of taxes and expenses, was, by accident or mistake of said attorney, omitted therefrom, and this was not discovered by him until after the delivery of the deed and when the attorneys of the complainant claimed one fourth of the gross income from the McIntosh street property, without deducting taxes, insurance, etc. He prays that the mistake be corrected, so as to carry out the true intention in making it. He set out an account of collections, expenditures and amounts paid to the complainant.</p> <p>The written instructions given to the attorney were as follows:</p> <p>“Direction to I. Hardeman to draw deed to McIntosh street property : To Georgia E. Crockett give % interest in this after my death; me to have full control until that time; after my death, Georgia to have full control during her lifetime, with right to dispose of it as she may see best. Her interest not to be sold for any debt of hers or any one else during her lifetime. Georgia to receive one-fourth of all rents or income accruing from said property until my death. After that time one-half of rent or income, after paying taxes and insurance and all other expenses required to keep the property in good repair.</p> <p>“Direction to I. Hardeman to draw deed to Bass street property: One Q4) half in this property after my death ; not to be sold for any debt of hers during her lifetime, with the right to dispose of it as she may see fit at her death. Georgia to have the right to live in the house with me, and no one else of the family, except her youngest brother, O. W. Crockett, as long as he remains single; and if the house is rented, Georgia to receive one-half of the rent after paying for repairs, taxes and insurance; me to have full control during my life.”</p> <p>On the trial, the evidence for the complainant was, in brief, as follows: The defendant executed the deed, and sent it to her to see if she would accept it. She said yes, and it was taken by the clerk of the superior court for record. Her father became angry with his children, and, as she learned, went to the clerk to get the deed ; she sent her younger brother down and got it. The first wife of the defendant, who was the mother of his children, was dead, and he was contemplating a second marriage, and it was about this the disagreement arose. He had been living in the Bass street house, but promised that he would not bring his second wife there to live. .The complainant lived there for some time, and her father and his family lived elsewhere. One of her brothers died, leaving children, and the defendant took them to live with him. The complainant finally moved out of the house, because her father sent a person to her to see if she was willing to move, and she did so, in order to let it be rented for the mutual benefit of herself and father. The renter remained about thirteen months, and was succeeded by another. At that time, the defendant was living in a house which belonged to him, and which was next door to the Bass street property. He exchanged with the tenant and moved into that house with his wife and grandchildren, and has remained there since without paying any rent. A son of the defendant testified that he was in partnership with his father in business, and that he never heard his father say anything about a mistake in the deed, but had heard him say that the deed was invalid and he intended to break it. There was other evidence as to the amount of rents, etc., which need not be set out.</p> <p>The evidence on behalf of the defendant was, in brief, as follows : Isaac Hardeman, Esq., lestified, in effect, that he received the written instructions, with the request to draw the deed accordingly; that he omitted from the deed the words, “ after paying taxes,” etc.; that if there was any error in the instructions, it would, of course, also enter into the deed.</p> <p>• The defendant testified, in brief, as follows: -The deed to the complainant was voluntary. The defendant wrote the instructions and gave them to his attorney to draw the deed. His intention was for the taxes, insurance and expenses to be paid, and for the complainant to receive her share of the net income. He did not discover the mistake in the deed until the first suit was brought against him, and even then supposed the word •“ income ” would be construed to mean net income. After his second marriage, he did not move at once into the Bass street house where his daughter was, because she objected, and he wanted to avoid a scene. She lived there about eleven months, and he boarded part of the time and kept house part of the time. One of his sons and his wife died, leaving four orphan children, which the defendant took to live with him. When the complainant moved, the house was rented for a number of months .to two successive tenants. The defendant’s family was large, and he did not have room in the house where he lived, and besides, he had an idea that his daughter would come and live with him. He therefore exchanged houses with the tenant, in the Bass street house. After his son’s death, the complainant staid with him for a shurt time.</p> <p>Letters between, the parties were introduced, which tended to show that the second marriage was the great cause of dissension. There ¡was also much other conflicting evidence as to the amounts of rents collected, the improvements made, etc., which nee d not be set out in detail.</p> <p>The jury found the following verdict:</p> <p>“ We, the jury, find and decree that the deed be so reformed as to read one-fourth the gross income and rents from the McIntosh street property prior to the death of Mrs. E. Crockett, and after her death, one-half the net income. We find for the complainant in the sum of nine hundred and sixty-one dollars and sixty-fire cents, including principal and interest. We also find and decree that a permanent receiver be appointed. In the above amount we find both complainant and defendant liable for rent for the Bass street property for the time they have occupied it at the rate of thirty ($30) dollars per month.”</p> <p>The defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the verdict was contrary to law and evidence as to each and all the findings.</p> <p>(2.) Because the court charged as follows: “Then you will determine what was the mistake. Did he intend for Miss Crockett to bear her part of the expenses now ? Was that what his intention was when he wrote to Col. Hardeman, or did he intend that she should only commence bearing her part of the expenses after his death? You have heard the testimony, and must say from it what the mistake was. If you find that it was his intention to put in that she should bear her part of the expenses now, that she was to get only one-fourth of the net income now, then you will say so in your verdict, and order it putin the deed. If you find that it was his intention that she should runon until he died, and then she was to pay her part of the expenses, you should say so, and order it put in the deed.”</p> <p>(3.) Because the court refused to charge that, according to the instructions given to Hardeman by Crockett, it was his intention to give complainant one-fourth of the rent from the McIntosh street property, after deducting insurance, taxes, repairs and necessary expenses.</p> <p>(4.) Because the court refused to charge that the jury could not decree a receiver to be appointed unless it was shown that the respondent was insolvent.</p> <p>(5.J Because the court charged as follows: “I submit to you whether you appoint a permanent receiver to take charge of that property, and rent it out, and pay the expenses on it, and pay Miss Crockett her part of it, or whether you appoint a receiver to step in and secure onefourthof the rent every month and turn it over; that will be for you to say. You must say specifically in your verdict whether you appoint one or refuse to appoint one.”</p> <p>(6.3 Because the court erred in submitting to the jury the.question whether or not they must appoint a receiver.</p> <p>(1.) Because the court refused to charge, as follows: “If' the jury find from the evidence that the defendant has occupied the Bass street property since July, 1883, but that he has not precluded complainant from also occupying it; that she could, if she had wished, also have occupied her share of the house, defendant is- not liable to complainant for rent for the Bass street property.”</p> <p>(8.) Because the court charged as follows: “If you believe from the evidence that Mr. Crockett moved back there, whether it was with or without her consent, she,still had a right to go there under the deed. But upon that point, I charge you,, that if you believe from the evidence^in the case that there was a disagreement in that family, a family discussion, and that if she went back there, she could not live peaceably and happily, that, there would be constant dissensions and quarrels, then I charge you it was not neeessary for her to go back; and if Mr. Crockett occupied it, he must pay her her part of the rent. I, say if that was so, if she refused to go without any fault on her part, but in order to keep out of broils and dissensions and family feuds, and she could not live there peaceably and happily and without any fault of hers, then Mr. Crockett must pay her her part of the rent, after deducting the insurance, expenses and taxes.”</p> <p>The motion was overruled, and the respondent excepted.</p> <p>For the former report of the common law branch of this litigation, see 73 Ga., 647.</p>

<p>Practice in Superior Court. Judge. Executions. Constitutional Law. Service. Partnership. Claims. Estoppel. Admissions. Before Judge Mershon. Wayne Superior Court. March Term, 1885.</p> <p>A fi.fa. in favor of Eliza Drawdy against T. P. Little-field & Brother was levied on certain property, without stating in the entry of levy whose property it was, and L. H. Littlefield interposed a claim, in which it was alleged that the property was levied on as belonging to T. P. Littlefield. On the trial, when the plaintiff introduced the ji. fa., with the entries thereon, it was objected to on the following grounds :</p> <p>(1.) Because the judgment on which it was based was rendered prior to'1877 by a judge pro hao vice, and was unconstitutional. [It appears from the record that counsel for the plaintiffs and defendants agreed on a member of the bar to preside in place of the judge, who was disqualified.]</p> <p>(2.) Because th & fi.fa. did not follow the judgment, in that it bore test in the name of the regular presiding judge, and not of the judge pro hao vice.</p> <p>(3.) Because th & fi.fa. did not follow the judgment, in that it did not mention the term at which the judgment was rendered, but after stating the amount of principal and interest to a certain day, added, “ which was lately rendered,” etc.</p> <p>(4.) Because there was no personal service as to T. P. Littlefield, and no entry of service at all appeared as to S. 0. Littlefield, the other member of the firm. [The return appearing on the copy-declaration established in lieu of the lost original was that the officer had served T. P. Little-field on September 2, 1881. The other facts connected with this ground are stated in the third division.of the d¿cision.]</p> <p>The presiding judge sustained the objection and dismissed the levy. The plaintiff excepted.</p>

<p>Where a duly commissioned -pilot for the port of Brunswick tendered his services to a master of a vessel outside of the bar to bring his vessel into port, which were declined, and the master brought his own vessel into port, paying the pilot the fees allowed if he had brought in the vessel, and thereupon the pilot tendered his services to the master to take the vessel out of port, which were declined, and the master refused to pay the pilot the fees allowed for such services, the pilot was entitled to recover therefor; and where the commissioners of pilotage rendered a j udgment in his favor, it was error to reverse this judgment on certiorari.</p> <p>(a.) The pilotage acts are founded on public necessity for the security of commerce and the protection of life, and it is not apparent why an outward bound vessel should not have the protection of a skillful and experienced pilot, as well as one inward bound.</p> <p>(6.) This case differs in its facts from those of Thompson vs. Spraigue, Soulle & Co., 69 Ga., 409, and Meissner vs. Stein, 72 Ga., 234. The points directly involved in those cases do not control this, and what may have been said in the opinions arguendo is to be considered alone with reference to the facts of those particular cases, and is not binding as a decision where the facts are different.</p>

Damages. Negligence. Railroads. Non-suit. Before Judge Harden. City Court of Savannah. November Adjourned Term, 1884. William Fraser and his wife, Julia Ann Fraser, brought suit against the Charleston and Savannah Railway Company to recover for an injury done to the wife while standing near the track of the defendant, by being bit by a heavy piece of wood, which “ dropped, fell and was thrown ” from the train upon her.

<p>Title. Sales. Turpentine. Words and Phrases. Before Judge Harden. City Court of Savannah. February Term, 1885.</p> <p>E. T. Roberts Drought trover against the Savannah, Florida and Western Railway for certain casks of spirits turpentine and certain barrels of rosin. The evidence was to the effect that he was a commission merchant, and as such, sold the property in dispute to one Chestnut on cash sale. The goods were in the possession of the railroad for the plaintiff, and an order was given to the purchaser for them. There was other evidence as to subsequent transfers by orders or receipts made by Chestnut to other parties, not material here. The purchaser (Chestnut) failed to pay, and the plaintiff brought trover against the company, which still had the actual possession. The value was proved.</p> <p>The case was submitted to the presiding judge without a jury. He held that the turpentine and rosin did not fall within §1593 of the Code, and rendered judgment for the defendant. The plaintiff excepted.</p>

Landlord and Tenant. Title. Crops. Judgments. Levy and Sale. Before Judge Lawson. Morgan Superior Court. March Term, 1885. ■ A fi. fa. in favor of A.- J. Hill against W. D. Durdin, based on a judgment recovered in 1876, was levied on two bales of cotton, the entry reciting that they were found in the defendant’s possession.

<p>1. This court has continually held that, where a debt was created and a judgment obtained prior to the passage of the bankrupt- act, and the constitution of 1868, this created alien on all the property of the defendant, and it was not discharged by, the subsequent bankruptcy and discharge therein of the defendant, where the plaintiff did not prove his debt in that court, and where no proceedings were had in that court disposing of the property of the bankrupt, except that the property was set apart to the bankrupt as an exemption; and that said property was still subject to the lien of the judgment, and was subject to be sold in satisfaction thereof.</p> <p>2. Jeffers and Jeffries are idem sonans.</p> <p>S. Whether fifty acres of the land levied on (there being eight hundred) are sufficiently described in the advertisement of sale or not, does not appear, as the advertisement is not set out in the pleadings. At all events, this is not sufficient to arrest the execution and the sale of the property.</p> <p>(a.) Semble, that errors in an advertisement of land levied on under an execution are not sufficient to stop the sale by affidavit of illegality, but the party suffering therefrom will be remitted to his remedy against the officer.</p>

Judgments. Injunction. Levy and Sale. Advertisement. Practice in Supreme Court. Damages. Before Judge Hammond. Morgan County. At Chambers. July 13, 1885. Thomas P. Saffold filed his bill against F. C. Foster, administrator, and the sheriff of Morgan county, to enjoin a sheriff’s sale under a fi.fa. issuing on a common law judgment.

<p>1. Ordinarily, if a bill of exception be not certified by the clerk according to law, it may be withdrawn from this court and returned to the clerk, in order that he may certify it properly; but where an entry of filing made by the clerk on the bill of exceptions has been obliterated by counsel for plaintiff in error and a new entry of filing has been made thereon, this court will not send it back to be properly certified, but will dismiss the case on motion. No matter how honestly such an obliteration may be made, it is illegal.</p> <p>2. If service of the bill of exceptions had been made and entered by the sheriff after the filing thereof, by handing a copy to the defendant in error, without any altera tion or obliteration of entries thereon, this would not have worked a dismissal, but where an obliteration of an entry of filing was made by counsel, the sheriff could not serve a copy of the original bill of ex ceptions unaltered, and the case will be dismissed for want of proper service.</p>

<p>Corporations. Principal and Agent. Promissory Notes. Ultra Vires. Powers. Contracts. Before Judge Lump-kin. Bartow Superior Court. January Adjourned Term, 1885.</p> <p>Reported in the decision.</p>

Witness. Contracts. Principal and Agent. Leases. Partnership. Charge of Court. Before Judge Eve. City-Court of Richmond County. March Term, 1885.

<p>1. The evidence in this case warranted a conviction of receiving stolen goods, knowing them to be stolen.</p> <p>2. The indictment is sufficiently technical and correct. It states the offense substantially in the very terms and language of the Code, or at least so plainly that its nature may be easily understood by the j rry.</p> <p>3. The receiver of stolen goods, knowing them to have been stolen or feloniously taken, is an accessory after the fact, and the principal should be prosecuted and convicted before the trial and conviction of the receiver; but where the indictment charged that the principal was unknown to the grand jury, so that he could not be taken and prosecuted to conviction, the receiver could be prosecuted and convicted alone.</p> <p>4. A felonious taking, as well as theft, was distinctly charged in this indictment against the principal as well as against the receiver. Had it not been so charged in terms, this would not have rendered the indictment insufficient. If the principal took the goods with felonious intent and was guilty of felony, and would have suffered the punishment of a felon upon conviction, the party who received the goods, knowing them to have been stolen, whether he is apprised of the intent and circumstances with which they were originally taken or not, is liable to the same punishment as the original thief; and this guilty knowledge may, in most cases, be inferred from facts and circumstances in proof.</p> <p>5. A charge in the indictment that the principal broke open and stole from a railroad car makes a felony.</p> <p>(a.) It was not material to allege that the breaking and stealing occurred in the county of the trial, if it were charged that the knowingly receiving was done there.</p>

<p>1. Section 4540 (a) of 'the Code ex vi termini makes all persons connected with the sale or retailing of spirituous, intoxicating or malt liquors responsible whenever a minor is furnished therewith, unless they have written authority from the parent or guardian of such minor; and it matters not whether the proprietor sells or furnishes the liquor directly by himself, or it is furnished by another in his emploj’ment; whether he was present or not, or knew of the fact, or consented to it, lie is, under this act, guilty of criminal negligence, and is, on that account, liable to prosecution. His offense is complete whenever it is shown that intoxicating drink was sold or furnished to a minor by any one acting iu his place of business in any capacity whatever, either as clerk, bartender or otherwise.</p> <p>(<*,) Though the offense is not stated in the indictment by employing ail the terms and language used in the section of the Code on which it is based, but only a portion of .them, yet it does set forth the offense so plainly that its nature may be easily understood by the jury, and is sufficiently technical and correct. It is not necessary, in such an indictment, to allege a scienter.</p> <p>(6.) Similar criminal enactments compared and contrasted.</p> <p>2. It furnished no ground of objection to the indictment that the name of tho clerk who_, it was alleged, made the sale was not set out in the indictment.</p> <p>3. That a grand juror is more than sixty years of age does not render him incompetent or invalidate an indictment found by a grand jury ot which he is a member.</p> <p>4. Section 3938 of the Code renders petit jurors incompetent to serve more than four weeks in one year, but there is no’such restriction as to grand jurors. The act of 18S3, disqualifying-them from-acting as talesmen for that reason, was repealed by the act of December 22, 1884.</p> <p>5. If it was error not to exclude the testimony of the collector of internal revenue that he issued a retail license to a firm of which the defendant was a member, it was immaterial error, as that fact was fully established by other testimony.</p> <p>6. The private instructions of the proprietors to the clerks and barkeepers in relation to selling to minors were incompetent and . irrelevant testimony, and were properly rejected from evidence.</p> <p>7. The verdict was demanded by the law and evidence.</p>

<p>Criminal Law. Scire facias. Bonds. Principal and Surety. Before Judge Willis. Muscogee Superior Court. May Term, 1885.</p> <p>Reported in the decision.</p>

<p>New Trial. Verdict. Landlord and Tenant. Before Judge Roney. Burke Superior Court. November Adjourned Term, 1884.</p> <p>Reported in the decision.</p>

<p>Prescription. Possession. Bond for Titles. Before Judge Simmons. Bibb Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Fraud. Vendor and Purchaser. Value. Equity. Laches. Contracts. Before Judge Simmons. Bibb Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Contracts. Sealed Instruments. Charge of. Court. New Trial. Practice in Supreme. Court. Before Judge Simmons. Houston Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Where it was shown that a cow was killed by a train, the railroad company should have produced all the witnesses present, to show that the company was not at fault. Where the engineer and fireman were always present on the engine, but only the former was sworn as a witness, and the absence of the latter was not accounted for, this was a circumstance from which the jury might infer that, had the other witness been introduced, his testimony might have shown negligence on the part of the company; and the verdict against the company was not without evidence to support it.</p>

<p>Judgments. Amendment. Trover. ' Before Judge Eve. City Court of Richmond County. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>[Jf.ckson, 0. J., did not preside in these cases, on account of providential cause.]</p> <p>1. Where the second item of a will gave all of testator’s lands to nis wife for life, “in fee simple,” .and the fourth, item devised certain of the same lands to testator’s son, and the rest to his three, daughters, the latter item did not defeat the former, but, construing the whole will together, it was the intention of the testator to' give his wife a life .estate with remainder to his children. .</p> <p>2. The court will presume the assent of an executor to a legacy, where he has been discharged, and the life tenant has remained in possession of the land devised for some ten years thereafter. '</p> <p>3. The evidence in this case is sufficient to show that one who took a mortgage upon land illegally and wrongfully held had notice of the illegal and wrongful manner in which his debtor obtained the property, or at least was-put upon inquiry,-and was charged with" notice of what he might ¿lave discovered by investigation.</p> <p>4. Where four hundred acres of land were levied on and a claim was interposed thereto, but there was no contest as to the fact that sixty-five acres were subject to they?, fa., and the claim would have been amended accordingly but for the suggestion of the court that the verdict could be so shaped as not to require the amendment, upon the return of the verdict finding all of the property not-subject, except the sixty-five acres, the claimant was the prevailing party, and it was error to tax the costs of- the entire case against • him.</p>

<p>Principal and Agent. Torts. Conversion. Trespass. Before B. P. Hollis, Esq., Judge pro hao vice. Lee Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Debtor and Creditor. Attachment. Garnishment. Liens. Equity. Misjoinder. Multifariousness. Parties. Before Judge Stewart. Rockdale Superior Court. February Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. An action of ejectment between citizens of the same state set out the following facts as giving jurisdiction to the circuit court of the United States, in which it v was brought, viz.: The plaintiff had been adjudged a Dankrupt; the land in controversy had been set apart to him as an exemption, and he had been finally discharged. Shortly before liis adjudication in bankruptcy, a fi. fa. from the circuit court had been levied by the United States marshal, and he proceeded to sell in spite of the bankruptcy, and the purchaser afterwards conveyed the land, with a warranty of title to another:</p> <p>Reid, that the suit was one arising under the constitution and laws of the United States, and the circuit court had jurisdiction thereof.</p> <p>(a.) The action of ejectment having been brought against the warrantee under the purchaser at the marshal’s sale, and the warrantor having been notified of the suit and conducted the defence of it by attorneys, this was in effect a vouching of the warrantor, and he was bound by the judgment rendered in a subsequent suit on the . warranty.</p> <p>(6.) The cases in 99 U. S., 547, and 5 Sawyer, 39, differ from the present case.</p> <p>■¿. The evidence to sustain the plaintiff’s case for a breach of cove, nant of warranty of title was ample, and the judgment awarding a non-suit was error.</p> <p>3. It is the duty of courts to end, and not to protract, litigation. A request to give such direction to this case as will enable the defendant to appeal to the Supreme Court of the United States must be denied. Comity to another court forbids it.</p>

<p>1. A sale made by a married woman to her husband, without being allowed by an order of the superior court of the county of her domicile, is not only voidable but void.</p> <p>2. The title of a wife not being affected by a sale to her husband, which was not allowed by the superior court, such a sale did not affect the rights of creditors of the wife, and land which would have been subject to an execution before such a conveyance, remained so afterwards.</p> <p>(a.) Creditors are a favored class, and every remedy and facility should be given to detect, defeat and annul any effort to defraud them of their just'rights. The constitution declares that the legislature shall provide by law for reaching property of the debtor concealed from the creditor, and this' fortifies existing legislation upon-that subject.</p>

<p>If the judge shall determine that a bill of exceptions presented to him is nottrue or does not contain all the necessary facts, he shall return it within ten days to the party, or, his attorney, with his objections to the same in writing. If these objections are met and removed, the judge may then certify, specifying in his certificate the cause of the delay,—requiring notice and hearing evidence if he sees proper, as to the truth of the bill of exceptions; but it is not proper, where facts necessary to a review of the decision below are omitted from the bill of exceptions, to insert them at the close of the usual certificate to the bill of exceptions and before the signature of the judge. There is no authority for such an appendage to a writ of error, and it shows on its face that the bill of exceptions, as tendered, is not true-</p> <p>(a ) Plaintiff in error was not free from fault, because he should have embodied all of the necessary facts in the bill of exceptions; and because, if, from any cause, the bill of exceptions is not certified by the judge without fault of the party tendering it; or if the judge does what is equivalent to refusing to certify, or, in default thereof, fail to return the bill of exceptions with his ob-' jections noted, so that they may be removed or rectified, the law provides a remedy by application to this court for mandamus nisi.</p>

<p>Railroads. Damages. Negligence. Baggage. Before Judge Simmons. Floyd Superior Court. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>When one is entrusted with the effects of another, to sell or dispose ot them for the benefit of the latter, and to account to him therefor, the mere fact that he who was so entrusted has failed to account does not create a debt which is exempted from a discharge in bankruptcy, under §5117 of the Revised Statutes of the United States, for fraud or embezzlement, or as being a debt created in a fiduciary capacity, there being no proof showing that1, in appropriating the property or proceeds, it was done wrongfully and fraudulently and with a fraudulent intent at the time.</p> <p>(a.) The decision in 44 Ga., 460, and others following are overruled. This is a question arising under an act o.f congress; and this court will follow the rulings of the Supreme Court of the United States on the subject.</p>

<p>Practice in Supreme Court. Practice in Superior Court. Injunction. Receiver. Before Judge Fatn. Bartow County. At Chambers. August 3 and October 27, 1885.</p> <p>Reported in the decision.</p>

<p>1. The court committed no error in stating the issues to the jury; when he informed them that the plaintiff claimed that the injuries received disabled him from performing his ordinary labor.</p> <p>2. There was no error in charging to the effect that the burden was on the plaintiff to sustain his allegations as to the injury sustained by him; that, to entitle him to recover, he must produce evidence sufficient to satisfy the jury that he has sustained an injury, and that such injury was the direct and proximate consequence of the defendant’s negligence; for,to constitute an actionable tort, there must be damage to the plaintiff and negligence by the defendant, causing the injury. Especially is this true, where the question of negligence was fully and fairly submitted to the jury, and they were instructed that they only could find the fact.</p> <p>3. The charge excepted to in the third ground of the motion for new trial was not error, and did not express any opinion on the facts, when taken in connection With its context. In stating the issues, to say that a party “ brings evidence to show,” etc., is not to express an opinion as to what has been proved.</p> <p>4. There was no error, after charging that a railroad, as a common carrier, was bound to use extraordinary diligence to transport passengers safely, and to protect them from injury, in adding that, where a casualty occurred, it would authorize an inference that it was occasioned by defendant’s negligence, and from it the jury might presume negligence.</p> <p>5. The court did not go outside of the case made by the pleadings in charging that it was the duty of the defendant to provide a safe track, comfortable cars, sufficient couplings, coupling-pins, etc. There was nothing in this to mislead the jury or divert their attention from the real issues in the case.</p> <p>6 There is nothing objectionable in the charge excepted to in the sixth ground' of the motion for a new trial; it is as favorable to the defendant as it Could, with legal propriety, have been, and pointed out clearly the care and diligence that would excuse the defendant for the use of defective machinery in the running and use of its road and cars.</p> <p>7. There is nothing in the seventh ground of the motion. It does not appear how the court failed to confine the jury in their finding to the special matters of negligence set out and relied on by the plaintiff in his pleadings.</p> <p>(o.) Vague and general exceptions make no issue of law that can be passed upon by this court.</p> <p>8, 9 The courts go very far to sustain verdicts and to avoid setting them aside. They must cover the issues made by the pleadings; but before they will be set aside for a failure in this respect, the deficiency must be made apparent. They are to have a reasonable intendment and to receive such a construction as will prevent their being avoided except from necessity; and to obviate this, they may be so amended as to make them conform to the pleadings; and where part is illegal, that may be written off. The verdict in this case covers the issues.</p> <p>(a.) Where there are several pleas filed, a verdict for the defendant must show on which of the pleas it is rendered; but where the jury found for the plaintiff, it was, in effect, a finding against all of the pleas.</p> <p>10. Tne declaration in this case alleged both general damages and also special damages, consisting of charges for attendance of physicians, medicines, etc. The defendant had paid certain charges of this character, and a receipt of an itemized bill was taken. It was in dispute whether or not this was a complete settlement of all such claims or only those to the date of the receipt. The charge fully submitted the facts; and there was no authority for finding separately on such questions. /</p> <p>11. Although this court, if it occupied the place of a jury, might not have found the verdict which was found, yet it was not so excessive as to show plainly that the jury were influenced by bias to the plaintiff or prejudice against the defendant, or that they misapprehended the case;, and their finding haying been approved by .the presiding judge, this court will not interfere especially after a second verdict for the plaintiff.</p>

<p>Practice in Superior Court. Trover. Bona Fides. Sales. Title. Conversion. Judgments. Before Judge Eve. City Court of Richmond County. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>Rabun County. Deeds. Equity. Mistake. New Trial. Practice in Superior Court. Before Judge Estes. Rabun Superior Court. March Term, 18S5.</p> <p>Reported in the decision.</p>

<p>1. Where one holding a title by deed from a former owner brought ejectment against the tenant in possession of land, the latter could not, by equitable plea, claim from the plaintiff a specific perform- . ance( of a parol contract alleged to have been made between the defendant and the person from whom the plaintiff bought, and of which it was averred the xffaintiff had notice. Especially could not this be done without making the plaintiff’s feoffor a party.</p> <p>2. A parol contract by which it was agreed that, if a man and his family would take possession of certain land and cultivate and improve it, they should have it as their home during the lives of himself and wife, paying therefor a reasonable rent, and that if, at any time, after paying such rent from time to time, he should become able to purchase, the owner would convey to him a title for such price or sum as it was then worth, was too vague, uncertain and wanting in mutuality to furnish a foundation for a decree for specific performance, requiring a conveyance from the other party to the contract or one who purchased from him with notice.</p> <p>S. Nor, under such circumstances, would the original owner of the land, orone who purchased from him with notice, be compelled to pay for improvements erected thereon by the occupant. It did not appear that he was able to pay for the land, or that he ever demanded a deed prior to its sale. He held as a tenant of the original owner, and became a tenant of the purchaser; and he could neither render the latter liable for improvements not assented to by the landlord, nor could he change the relation of landlord and tenant; except by consent of his landlord.</p>

<p>Railroads. Damages. Negligence. Cattle. Before Judge Estes. Habersham Superior Court. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Accomplice. Witness. Husband and Wife. Before Judge Estes. Habersham Superior Court. March Adjourned Term, 1885.</p> <p>Reported in the decision.</p>

<p>Practice in Superior Court. Judgments. Constitutional Law. Principal and Surety. Injunction. Parties. Actions. Amendment. Practice in Supreme Court. Before J. Ganahl, Esq., -Judge pro Jiao vice. Richmond Superior Court. April Term, 1885. Before M. P. Carroll, Esq., Judge pro hao vice. Columbia County. At Chambers. August 26,1885. '</p> <p>Reported in the decision.</p>

<p>Cotton Futures. Contracts. Consideration. Public Policy. Promissory Notes. Evidence. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1884.</p> <p>Reported in the decision.</p>

<p>County Matters. Rabun County. Habersham County. Mandamus. Before Judge Estes. Rabun County. At Chambers. September 14,1886.</p> <p>Reported in the decision.</p>

<p>1. Where a steam engine was sold by the agent of a firm, and negotiable promissory notes were given, in which the printed form used was altered, so as to make such notes payable to the agent instead of to the firm, but in a printed addition to the notes it was provided that the title to the engine should remain in the firm until payment was made, if subsequently the name of the firm was stricken in this printed addition and that of the agent was substituted, and the notes were negotiated before due to an innocent purchaser without notice, it was error to charge that the alteration was a material one, and if made for the purpose of defrauding the defendants, and made after the notes were signed and without the defendants’ consent, the jury should find for them.</p> <p>2. Title retained by an agent, as agent, remains in the principal, whether the notes given for the price be payable to thé one or the other.</p> <p>3. The evidence fails to show satisfactorily that, if the alteration was material, it was made to defraud the. defendants; and the court should have charged that, if it was made not with intent to defraud, and if the evidence showed what the contract originally was, and if it appeared that it still was capable of execution, it should be enforced.</p>

<p>Evidence. Deeds. Before Judge Estes. Lumpkin Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>A will contained the following bequest: “ All my property, both real and personal, or whatever kind it may be, to my beloved wife, Jane Barton, for and during her natural life; and after the death of my said wife, I direct that all the remainder of my said property he sold by my executors and be equally divided among my children ; and in the event that any of my children should die prior to the death of their said mother, leaving a child or children 1 ving, then I desire said child or children so left should stand in the place of its or their deceased parent, and heir a child’s part; that is, the part that the deceased parent would have taken if living</p> <p>Held, that the remainder left by such will was contingent; and the widow of a son of the testator, who died childless before the widow of the testator, would not take any interest under the will.</p>

Master and Servant. Contracts. Notice. Before Judge Brown. Cobb Superior Court. November Adjourned Term, 1884 Hilburn brought suit on an open account against the 'Marietta and North Georgia Railroad for services rendered and articles- furnished and money paid out in 1S78 and 1879. The plaintiff testified to the correctness of his account, and that he worked • under one Eaves, the agent of the defendant, and made the expenditures for the company.

Criminal Law. Indictment. Officers. Malpractice in Office. Charge of Court. Jury and Jurors. Constitutional Law. Before Judge Willis. Muscogee Superior Court. May Term, 1885.

<p>Administrators and Executors. Equity. "Wills. Trusts and Trustees. Estates. Injunction. Receiver. Before Judge Hammond. Fulton County. At Chambers, July 14, 1885.</p> <p>Reported in the decision.</p>

<p>Evidence. Equity. Trusts and Trustees. Fraud. Before Judge Simmons. Harris Superior Court. April Term,</p> <p>To the report contained in the decision, it is only necessary to add that the following were among the errors assigned in the bill of exceptions:</p> <p>(1.) Because the court rejected from evidence a letter written by Gen. Henry L. Benning lo one W. F. Moses, dated June 29, 1874, in which he stated that he understood that Mrs. Hickson had placed all of her cases in the hands of Mr. Roland Russell for settlement; that he had had nothing to do with any of the cases since then, and could not tell the terms of the settlement; and that Bryan (one of the defendants) was and is insolvent, as also are the securities on his bond.</p> <p>(2.) Because the court rejected from-evidence the minutes and records of the superior court showing that a bill had been filed by the administrator of the vendor, from whom complainant’s husband bought a lot of land, against Bryan, administrator of her husband, to foreclose a vendor’s lien for purchase money on a certain lot of land; that the decree was against lot number 248, but on the record of the bill, the number had been altered, after being recorded, so as to read number 232.</p> <p>(3.) Because the court refused to allow the answer of Bryan to be read in evidence against his co-defendants.</p> <p>(4.) Because, at the close of the complainant’s testimony, the court, on motion, dismissed the bill for want of proof to sustain it.</p>

<p>Railroads. Jurisdiction. Service. Damages. Actions. Malicious Suit. Injunction. Before N. A. Smith, Esq., Judge pro Jiao vice. Sumter Superior Court. April Term, 1885.</p> <p>On March 19, 1883, B. C. Mitchell brought his action for damages against the Southwestern Railroad Company, alleging, in brief, as follows;. In 1S80, and prior to that time, the plaintiff was the owner and in the rightful enjoyment of a valuable mill in the city of Americus, in Sumter county, which was run by water-power, and was located near the railroad of the defendant. He had the right to flood the land of the company with his dam, being an easement which he had acquired by authority of the company for a valuable consideration. A storm washed away a portion of his dam and temporarily suspended his business. The defendant filed a bill to enjoin him from rebuilding his dam so as to continue his business, and obtained an injunction for that purpose. This was done by false and maliraous allegations, and entirely without reasonable and probable cause, and was for the purpose of injuring and harassing the plaintiff. By reason of this, the plaintiff’s mill was stopped, causing him to lose the profits from it; the property had deteriorated in value; custom which had been built up was diverted from the mill; and the plaintiff has been compelled to expend largo sums for attorneys’ fees. All these wrongful and illegal acts were done in Sumter county. It was alleged that a part of the defendant’s road lay in that county, and that the defendant had an agent there.</p> <p>Process issued, and the sheriff made the following entry of service:</p> <p>I have this day served Lott Warren, agent, at the depot, at -Americus, Sumter county, Georgia, personally with a copy of the within, this March 20th, 1883.”</p> <p>A second original issued, with process directed to the sheriff of Bibb county, and was served on the president of the defendant in that county.</p> <p>The defendant traversed the entry of service and pleaded to the jurisdiction, alleging that it had no office and no agent in Sumter county; that all of its property in that county was held under a lease by the Central Railroad, and the agent served was the agent of that company, and that the office of the defendant was in Bibb county. The defendant also made a motion to dismiss the case, on the ground that there was no legal service.</p> <p>On the trial, the plaintiff introduced the record of the equity case, which terminated in his favor. A report of it will be found in 69 Get., 115, et seq. He also introduced testimony substantially as follows:</p> <p>G. W. Ooker testified as follows: He built the mill and daminlS68; had the consent'of the road to flood the right-of-way, the authorities stating that they never made deeds, but never interfered with such improvements, as they were of advantage to the railroad in the way of shipping grain. The mill was built at an outlay of aboul $55,000 altogether. The railroad made no objection to the mill or pond. The witness sold the mill to B. 0. Mitchell for ten thousand dollars. The mill was in sight of the road, near the right-of-way of the defendant; part of the dam and pond was on the right-of-way.</p> <p>B. G. Mitchell testified as follows : Bought the property of O. W. Ooker; before buying, saw Virgil Powers, superintendent, and inquired about the authority of Ooker to use the right-of-way by back-water, etc. He told witness the company consented for Ooker to use the right-of-way ; that they never made deeds to their right-of-way, but the company favored the building of such enterprises along their road. The railroad has used the water of the pond for a time; the dam prevents culverts from undermining ; it also constitutes part of the approach to a road crossing; witness has spent a considerable sum of money on the property. The mill was shut down three years by the injunction. When the bill was served, he had bought a large bill of timber, and it was lost. Lost the repairs being done at the time the bill was filed, worth $150. The mill was worth from five to ten dollars per day duiing the time it was shut down, deducting all expenses, hire of miller, repairs, insurance, etc. The mill would net $1,200 per year for the three years. (The witness estimated the amount of damages to the mill-house- and race and stated the amount of attorneys’ fees.)) Walden, the supervisor of the defendant, told him he-would be glad for him to back the water near the culvert, as it would protect the culvert in case of a freshet’.. The mill and dam were built in 1868.</p> <p>W. A. Black testified : Was a director of the railroad! from its building to 1868, twenty years; then became agent. The mill was built soon after my agency began. Mr. Powers, at the building of the mill, was superintendent, and frequently passed along by the mill. Mr. Raoul succeeded Mr. Powers as superintendent. My agency terminated in 1878. Mr. Powers was a director when the company was organized, and was a director when I quit the agency at the depot in Americus, Ga., 150 or 200 yards from the pond. The pond is in plain view of the road and depot. Mr. Raoul frequently passed there. J. E. Jones was a director of the road when witness cea sed to be. Mr. Holt died about 1880, and Jones b ecame president. The Central Road had control of the- Southwestern Road when I became agent at Americus; it was after the lease. I received orders from Savannah. The Central has been controlling and managing the road since. Did not know of any agent of the defendant in Sumter county since the lease ; did not know of his own knowledge about the terms of the lease, outside of the papers themselves.</p> <p>There was also other evidence which need not be detailed. On motion, the court granted a non-suit. The following are the assignments of error:</p> <p>(1.) Plaintiff offered in evidence the original bill filed by the Southwestern Railroad. The court held that the counsel would have to put in all the record, including all the pleadings, orders, etc., to the decree, which they were forcéd to do, to get in what they wanted.</p> <p>(2.) Plaintiff offered the motion for new trial by defendant in said case, the judgment thereon, the bill of exceptions, as stated by counsel then and there, for the purpose of showing a continuation of said litigation. The court refused to allow either, unless plaintiff would put in, in connection therewith, all the evidence pro and con, in said original case of file.</p> <p>(3.) Defendant moved for a non-suit because there was no service; because the superior court of Sumter county had no jurisdiction; and because plaintiff had failed, by sufficient and proper proof, to show a want of proper cause for the original suit; and further, because the plaintiff had failed to show any malice on the part of the railroad. Counsel were discussing said motion; the court interrupted counsel, and said he did not care to hear from plaintiff on points made by defendant’s counsel for non-suit; and the plaintiff’s counsel could address themselves entirely to the question of whether the proof showed any notice to the defendant of plaintiff’s right to overflow the right-of-way, and the effect of the overflow, and the advantages of said mill, so as to show malice, and said to counsel they could assume that the proof showed want of probable cause, as the court considered that as established in the case. Counsel undertook to meet the suggestion's of the court, but failed, and the court awarded a non-suit. Counsel asked the court to name the point or grounds of non-suit in judgment. The court admitted the ground, but failed to comply with the request, although the court had interrupted the counsel as to other questions in the case, and thereby prevented counsel from correcting any other defect.</p>

Contracts. Warranty. Actions. Before Judge Harden. City Court of Savannah. July Term, 1885.

<p>Railroads Negligence. Damages. Evidence. Presumptions. Before Judge Bower. Dougherty Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Constitutional Law. Witness. Evidence. Murder. Before Judge Stewart. Upson Superior Court. January Term, 1885.</p> <p>Reported in the decision.</p>

Estates. Tenants. Husband and Wife. Dower. Estoppel. Evidence. Before Judge Stewart. Pike Supe rior Court. April Term, 1885. Mrs. Coats, widow of H. H. Coats, deceased, applied for dower in the undivided one-half interest which, it was alleged, her husband held in certain land-, A. B. Harris being the other tenant in common. Commissioners were appointed, and they made a return assigning dower.

Judge. Relationship. Deeds. Forgery. Evidence. Attorney and Client. Justice of the Peace. Before Judge Fort. Stewart Superior Court. April Term, 1885.

Municipal Corporations. Contracts. Railroads. Injunction. Constitutional Law. Before Judge Estes. Clarke County. At Chambers. August 31, 1885.

<p>Estates. Title. Trusts and Trustees. Sales. Judge. Before Judge Willis. Harris Superior Court. April Term, 1885.</p> <p>To the report contained in the decision, it is necessary to add only that the deed relied on by the plaintiffs was made by Griffin to Mrs. Pace and her children, naming each of them, and contained the following clause:</p> <p>“With the following limitation and restriction, that is that my sister, Eliza A. E. Pace, is to have and enjoy the rents and profits of the said east part of lot of land for her support and maintenance during her natural life, and the aforesaid - James S. Griffin reserving to himself and consenting to be a trustee for the use of the said Eliza A. E. Pace, my sister, and as such trustee to appropriate and apply the said rents, use and profits of said land to the use, support and maintenance of the said Eliza A. E. Pace during her natural life. To have and to hold the aforesaid lot of land for the aforesaid [grantees] under the restrictions and reservations aforesaid, and unto my sister, the said Eliza A. E. Pace, for life, as aforesaid, and afterwards for their own proper use, benefit and behoof forever in fee simple.”</p>

Physicians. Officers. Actions. Before Judge Cars-well. Bulloch Superior Court. October Term, 1884. Foss brought complaint against Parish for $134.00 on an open account for medical services. The first item was dated December 13th, 1881..

<p>Dedication. Cemeteries. Estoppel. Before Judge Simmons. Bibb Superior Court. October Adjourned Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. A dog is not property, except in a qualified sense, either at common law or under the statutes of this state. The owner may maintain an action of trespass vi ct armis for the wanton and malicious killing of his dog,-but he cannot maintain case for its unintentional, though negligent, destruction; and where a dog was killed by a railroad train, a presumption did not arise against the company, as in cases of injury to persons or property.</p> <p>•2. The facts in this case showed that no exercise of care on the part of the employes of the railroad would have averted the death of the dog, and a non-suit was proper.</p>

<p>1. Whether, in a deed to land, a clause reserving to the grantor all minerals and mining privileges thereon constitutes a reservation or exemption, and whether it would be void as being a saving as large as the grant, is not decided, because the question was not argued before this court.</p> <p>2. Under the facts of this case, there was no error in refusing to grant an injunction to restrain one who held under the grantee of a deed containing such a provision from using certain water on the land and a certain mill for pounding and washing ore taken by him from an adjacent lot. No harm can come to the complainant thereby; and it is directed that the case be held for a full and final trial before the court and jury.</p>

<p>Wills. Estates. Title. Levy and Sale. Remainders, Before Judge Adams. Chatham Superior Court. June Term, 1885.</p> <p>Reported in the decision.</p>

<p>Pleadings. Evidence. Contracts. Corporations. Admissions. Before. Judge Hammond. Bartow Superior Court. July Term, 1885.</p> <p>Reported in the decision.</p>

Deeds. Delivery. Title. Before Judge Roney. Columbia Su perior Court. September Adj ourned Term, 1884. Gray, administrator of Jackson Maddox, brought complaint for land against Benjamin F. Maddox, and on the trial, the jury found for the plaintiff, with mesne profits. The defendant moved for a new trial, which was refused, and he excepted.

<p>[Jackson, C. J., not presiding, on aeoount of providential oause.]</p> <p>1. Where a person who is insolvent purchases goods, and, not intending to pay, conceals his insolvency and intention not to pay, he is guilty of a fraud, which entitles the vendor, if no innocent third party has acquired an interest in them, to disaffirm the contract and recover the goods.</p> <p>2. Under the allegations in this hill, a court of equity has jurisdiction, and the remedy in equity is more adequate and complete than at law. The bill shows that the goods of complainants were fraudulently acquired hy their vendees, and fraudulently transferred to the other defendants; and to avoid a multiplicity of suits, a court of equity would have jurisdiction, there being no objection of multifariousness or misjoinder of defendants.</p> <p>3. Complainants have the right of creditors to test the validity of preferred debts and to require an accounting from the assignees.</p>

<p>Levy and Sale. Title. Before Judge Jno. T. Clarke. Randolph Superior Court. November Term, 1884.</p> <p>Reported in the decision.</p>

<p>[Jackson, 0. J., being disqualified, Judge Roney, of tbe Augusta Circuit, presided in his stead.J</p> <p>In 1857 a deed was made, whereby certain realty was conveyed upon the following trusts: “Upon condition and trust, nevertheless, that the said Levi W. Bates will permit Eunice Copp, wife of me, the aforementioned Daniel D; Copp, to hold an d possess the same during her natural life, and to receive the rents, issues and profits thereof during her said life, not subject to the debts, contracts or engagements of her present or any future husband with whom she may intermarry; and from and after the death of the said Eunice, in further trust that he, the said Levi W. Bates, his heirs, executors, administrators, will convey the same to the children of ' the said Eunice, share and share alike, if more than one, to them, their heirs and assigns forever, free from any trust; and in default of any such children, then in further trust to convey the' same to such person or persons as the said Eunice may direct by her last will and testament, or by instrument in the nature thereof, to be signed in the presence of three or more credible witnesses; and in default of such direction and appointment, then in the further trust to convey the same to such person or persons as may be entitled thereto, according to the provisions of the statute of distribution of the state of Georgia, and to and for no other use, intent and purpose whatsoever; and it is mutually covenanted . and understood by and between the parties to these presents, that it shall be lawful for the said Levi W. Bates, upon the written request of the said Eunice, to be signed in the presence of two or inore credible witnesses, to sell and dispose of the aforementioned premises to such purchaser or purchasers, and upon such terms as may seem to him most advantageous, for the .interests of the trust, he, the said Levi W. Bates, or his • successor in the trust, investing and preserving the proceeds upon the same uses and trusts as are hereinafter specified, and in such manner as may seem to Mm, in the exercise of a fair and reasonable discretion, to be beneficial to the interest of the trust, but the purchaser or purchasers shall not be bound to look to such re-investment.”</p> <p>This deed appeared to be a re-investment under a deed of trust made , in 1840 upon exactly the same trusts. In 1.840, the wife (Eunice) hadbut one child. In 1837, when the second trust deed was made, she had five children. In 1883, she died, leaving one child surviving. The trustee-conveyed the property to this child; and the husbands and children of daughters who died before the life tenant, but after the making of the deed in 1857, filed their bill claiming a remain- . der interest: ...</p> <p>Held, that the deed conveyed the fee to the trustee, to hold for the use of the grantor’s wife for life, and with remainder to her children. The children living at the date of the delivery of the deed took a vested remainder, subject to open upon the birth of other , children and, admit them also as remaindermen in fee; but such children as might die before the life tenant were not divested of. their interest, and their children would be entitled to take in their stead.</p>

Practice in Superior Court. Jury and Jurors. Verdict. Master and Servant. Actions. Before Judge Simmons. Bibb Superior Court. April Term, 1885. Physioc brought suit against Shea for the breach of a written contract of employment as foreman of a tailor shop for a term of two years. It was alleged that, at the end of seven months, the defendant discharged him without any legal reason.

Garnishment. Laborers. Waiver. Wages. Before Judge Harris. Douglas Superior Court. July Term, 1885. Watson brought complaint against Green in the county court of Douglas county on a promissory note containing the waiver set out in the decision, and recovered judgment. Pending the suit, process of garnishment was sued out and served on the Georgia Pacific Railway Company.

<p>[Jackson, C. J., not presiding, on account of providential causo.]</p> <p>1. Where one was employed for wages as a servant by the owners of a gin-house, it being his duty to aid in ginning cotton brought there by his master’s customers, to receive and weigh it and put it in the gin-house and report at night to the owners, who entered on their books the weights, receipts and deliveries of cotton during the day; and where, on account of the fact that he “ fired ” the engine by which the gin was run, early in the morning, he generally carried the keys to the house, this did not put the cotton in his possession or make him a bailee thereof; and if he stole cotton from the gin-house, the offense was larceny from the house, and not larceny after trust.</p> <p>2. It was held in Claris’s case, 12 Ga., 350-1, that the statute of lim' itations applied to the offense for which the defendant was indicted, and not to any minor offense included therein, of which he might be found guilty on the traverse of the indictment.</p> <p>3. Where a defendant was indicted for larceny from the house of goods of the value of more than $50, but the evidence showed that the property was less than $50 in value, there was no error in charging that corroboration of the testimony of accomplices was not essential to a conviction, if the jury should be of the opinion that the offense amounted to nothing more than a misdemeanor.</p> <p>(a.) There was corroboration in this case.</p>

<p>Verdict. New trial. Charge of Court. Before Judge Carswell. Jefferson Superior Court. May Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. On the trial of a person charged, with stabbing another, not in his own defence or under other circumstances of justification, it was error for the court io charge ás follows: “ If the evidence satisfies you that defendant gave the first insult and struck Jowers, the prosecutor, the first blow, the defendant cannot bo justified for defending himself against the blows from Jowers with his fist, by cutting Jowers, although you- may believe at the time of the cutting there was inequality of strength or other circumstances of advantage in favor of Jowers and against defendant, unless the defendant had, in good faith, waived or endeavored to abandon the fight, or there was actual necessity to defend himself from serious injury;” and also as follows: “If defendant and Jowers agreed to fight and did so, or went into the fight by mutual consent, defendant could not legally defend himself against blows from Jowers with his fist by cutting him, although there might have been, at the time of the cutting, circumstances producing relative inequality between them, unless, before the cutting, the defendant had, in good faith, waived or endeavored to abandon the fight, or was under absolute necessity to do so, to prevent serious injury.” These charges were calculated to withdraw from the consideration of the jury any circumstances of justification which may have been shown, such as inequality in strength, age, weight or size, the exact position of the parties when the stabbing was done, and the character of the blows inflicted by the prosecutor.</p> <p>2. Where the law fixes the punishment of an cfíense as afine, not to exceed one thousand dollars, a fine within that limit is within the discretion of the judge, and is not the subject of review.</p> <p>Jackson, C. J., dissented.</p>

<p>An action of trespass turned upon the ownership of the land. Plaintiff exhibited a grant from the state, under the act of 1840 (Cobb’s Dig., 703). Defendant introduced a grant under the acts of 1818 and 1S19 (Cobb’s Dig., 6S3, 684) and successive deeds, dated in 1823, 1838, '1868 and 1873, conveying the land to persons under whom defendant claimed the right of entering and cutting timber. Plaintiff attacked this chain of title as false and spurious, and showed that none of these deeds were recorded until 1879, when they were all recorded together on the same day; that the records in the office of the secretary of state (including the records of the former surveyor general’s office) showed no such grant; that the only grant of record was that of the plaintiff; that the land was not drawn by the alleged grantee, but by another; and that the date of the grant, as well as of one of the deeds, was on Sunday:</p> <p>Held, that a verdict for the defendant was not supported by the evidence.</p> <p>la. ) It was no reply to this to show that numerous mistakes were made both as to the fortunate drawers and the lots which they drew in the various land lotteries of the state, as shown by acts passed for their correction, there being no evidence as to any mistake in respect to this land.</p> <p>lb. ) A plot and grant from the state may be attacked as forged and spurious, by evidence, without proceeding in the manner provided by §2712 of the Code. That section applies to registered deeds, and even in that case it is cumulative; and any deed, ancient or modern, after being read to the jury by reason of its registry, may be attacked as a forgery by any competent evidence.</p>

Attorney and Client. Practice in Superior Court. Admissions. Charge of Court. Estoppel. Before Judge Simmons. Floyd Superior Court.

<p>1. Where an auditor made a report, and on exception the court remanded tho cjse for another hearing, on the ground that tho auditor had excluded a witness who was competent, and upon another hearing before the auditor, the testimony was admitted and exceptions again taken, tho case was still in fieri, and it was competent for the court to alter its former ruling and hold the witness incompetent.</p> <p>2. Where a county proceeded against its tax collector by issuing executions against him and his sureties for a balance of money alleged’ to have been collected and not paid, and tho collector defended by affidavit of illegality, alleging payment, he was not a competent witness to prove that he made such payment to the county treasurer, who had since died.</p>

<p>Jurisdiction. Justice Courts. Pleadings. Practice in Superior Court. Amendment. Practice in Supreme Court. Before Judge Willis. Taylor Superior Court. October Adjourned Term, 1884.</p> <p>Reported in the decision.</p>

<p>Under tlie act of 1878, the state fixes, through commissioners appointed therefor, j ust and reasonable rates of freight, and the schedule of these i ates is made sufficient evidence, in all the courts of the state, of the justness and reasonableness of the freights exacted by the railroad companies, where charges of illegal freights are brought against them and they are sued therefor. Bates within those so fixed are not unreasonable. Therefore, where a suit was brought against a railroad company on account of alleged overcharges beyond a reasonable rate, but the declaration did not allege either that no rates had been fixed for the defendant’s road or that the charges were beyond the rates so fixed, it was demurrable.</p>

<p>1. A declaration showed that O. D. H. purchased from T., the surviv ing partner of the firm of T. & H., the entire property belonging-to the partnership, and, as a part'of the consideration, agreed to assume all of the liabilities of the firm, and to pay,' in addition, a certain sum of money. The suit was brought on a note made by T., as principal, and H., as'security. A copy of the note and agreement was appended, and il was alleged that the note was given for merchandise sold to the principal and surety while in business together, and that the defendant having bought out the-business and assumed the liabilities, became liable to pay the note, the plaintiff releasing the makers from all liability:</p> <p>Held, thatthe declaration was demurrable for want of privity between-the plaintiff and the defendant.</p> <p>2. There was nothing in the declara tion to amend by. Had there been, an amendment could not be made, setting forth an indebtedness by the defendant to the plaintiff on the written contract, whereby it was alleged that the d efendant undertook and obligated himself to pay all indebtedness of a certain business, conducted by T. & H. before the date of the obligation, and that a certain promissory note, payable to the plaintiff for a certain sum of ' money, made by T., as principal, and H., as security, and due at a-, date named, was one of the liabilities of the business that defendant agreed to pay, but which he had not paid. This introduced' a new and distinct cause of action.</p>

<p>Tax. Levy and Sale. Estoppel. Witness. Before Judge Hammond. Butts Superior Court. March Adjourned Term, 1885. 1</p> <p>Reported in the decision.</p>

<p>Debtor and Creditor. Factors. Carriers. Payment. Principal and Agent. Acquiescence. Before Judge Willis. Muscogee Superior Court. May Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. Where a father employed counsel to defend a suit for his widowed daughter, growing out of her deceased husband’s estate, and paid the expenses so incurred, this furnished an ample consideration for a note given by the daughter to him for the amount so expended.</p> <p>2. Where a daughter gave a note to her father, and subsequently died, and suit was brought on the note against her legal representative, a plea which alleged that the note was given merely as evidence of an advancement, but did not allege that such stipulation was to be incorporated in the writing, and was left out by fraud or mistake, was demurrable.</p> <p>3. The cases in which it has been held that parol evidence was admissible to show that a note given by a child to a parent was merely an evidence of an advancement, arose where the child survived the parent and there was a contest over the distribution of the estate; and such cases do not apply where the parent survived the child and brought suit on the note; but in those cases, the rule already stated would apply.</p> <p>(a.) The evidence is strong against the probability that the nrte in this case was designed to be an advancement.</p>

<p>Actions. Parties. Bonds. Levy and Sale. Charge of Court. Perishable Property. Practice in Supreme Court. Before O. E. Crisp, Esq., Judge pro hao vice. Sumter Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

Evidence. Practice in Supreme Court. Fraud. Mortgage. Debtor and Creditor. Record. Charge of Court Before Judge Lumpkin. Bartow Superior Court. January Adjourned Term, 1885. To the report contained in the decision, it is necessary to add only that the grounds of the motion for a new trial were, in brief, as follows: (1) to (4).

<p>[Jackson, C. J., being disqualified, Judge Marshall J. Clarke, of the Atlanta. Circuit, presided in his stead.]</p> <p>1. A will contained the following items:</p> <p>“ First—It is my will that my infant daughter, Sarah Alberta Addison Alexina Telfair Cobb, should she live to attain the age of twenty-one years, become then the absolute owner of all the estate, real, personal and mixed, including dioses in action, to which I have a lawful title, to have and to hold the same, and her heirs forever. In the meantime, I give to my executors herein named the custody and control of all said estate for the use and benefit of my said daughter.</p> <p>“Second—It is further my will that, if my said daughter should depart this life leaving no issue or lineal heirs, that the whole of the estate herein bequeathed should go and belong to my mother and my sister, as tenants in common, and their heirs forever, and should they two be survived by my said daughter, and she, my said daughter, subsequently die without issue as aforesaid, then living, then it is my will that the whole of my estate vest in and belong to my own next of kin then living and their heirs forever. , '</p> <p>“Third—I hereby appoint my mother executrix and Robert Haber-sham, Esq., of Savannah, executor of this my last will, authorizing them to assume and exercise the necessary and lawful trust herein prescribed in regard to the custody of my said estate, and at their discretion to sell the same or any part thereof and to vest the proceeds of sale in any safe and good yielding stock, to transfer the same to my said daughter at the time above specified, or to my mother and sister, or other heirs, at any time after my daughter’s death without issue or lineal heirs then living</p> <p>Held, that the will created an estate for life in the daughter of the testatrix, with remainder to her children or lineal heirs, or in default of such issue or lineal heirs, to the other beneficiaries named; it did not invest the daughter with the fee, at her majority, determinable upon her dying without issue.</p> <p>(a.) The cardinal rale in construing a will is to seek diligently for the intention of the testator, regardless of technical rules, and when such intention is ascertained, to allow it full operation, provided it does not contravene any law or public policy.</p> <p>2. The effect of the marriage settlement in thi$ case is not an open question.</p>

<p>Jackson, C. J., and Hall, J., being disqualified, Judges Hammond and Stewart, of the Atlanta and Flint Circuits, presided in their stead.]</p> <p>1. Where a bond was given, reciting that the obligee had filed her libel for divorce and bill quia timet against the obligor, under which he had been arrested, .and the condition was for the payments of such amounts as might be ordered by the court from time to time as alimony and counsel fees to complainant, the mere recital that the arrest was made on a bill quia 'timet was not even prima facie evidence that it was illegal, it appearing that it was made by virtue of the order of the chancellor. .The presumption in favor of the proper conduct of courts and judicial officers acting within their legitimate sphere, operates in favor of the legality of that proceeding, and, if not conclusive, would certainly cast upon the defendant the burden of showing that it was illegal.</p> <p>(a.) Where a bill was filed in aid of a libel for divorce, and the principal purpose of it was to secure the wife’s alimony, with proper allegations and proof, the chancellor would have authority to order the arrest of the defendant, and to require him to give bond and security for his compliance with any order that he might grant in the divorce case then pending for the payment of alimony to his wife.</p> <p>(6.) The bill being lost, the presumption is that its allegations were sufficient to authorize the granting of the order requiring the defendant to give the bond sued on.</p> <p>2. Temporary alimony is fixed by the judge in his discretion, and upon the. passage of the order allowing it, the right to the amount allowed becomes fixed and absolute until revoked or modified by the judge, and may be enforced by writ of fieri facias or by attachment for contempt; and the failing to apply for the remedy to enforce it during the pendency of the suit cannot operate to deprive the plaintiff of the right to sue for it after the final verdict disallowing permanent alimony. The granting of temporary alimony is a question for the court; the finding or refusal of permanent alimony is for the jury.</p> <p>3. It is difficult to see how a bond given under the order of the chancellor, and in compliance therewith, as a condition of the principal obligor’s release, was under duress, so as to be invalid. The plaintiff, in a suit on such bond, at least had the right to have the question submitted to the jury, and the onus of establishing the duress was on the defendant.</p> <p>(a.) The question whether or not the surety on such a bond could avail himself of the defence of duress upon the principal obligor at the time of the execution of the bond, whore the duress was known to the surety at the time, is left undetermined.</p>

<p>Estates. Ejectment. Remainders. Privity. Administrators and Executors. Husband and Wife. Sales. Attorney and Client. Evidence. Betterments. Equity. Charge of Court. Before D. A. Vason, Esq., Judge pro hao vice. Dougherty Superior Court. April Term, 1885.</p> <p>Reported in the decision</p>

<p>Fraud. Consideration. Pleadings. Warranty. Damages. Laches. Equity. Before Judge Willis. Chattahoochee Superior Court. March Term, 1885.</p> <p>Reported in the decision.</p>

Railroads. Partnership. Actions. Amendment. Torts. Before Judge Willis. Muscogee Superior Court. May Term, 1885. Held: used and occupied said Central Line of Steamers as part of their corporate property, and have navigated said rivers as they deemed most beneficial to their interest, and said Central Railroad and Banking Company, of Georgia, have and are now operating said Central Line Steamers in a manner which has greatly facilitated the business…

<p>Whether a case involves more than $50.00, and therefore can be appealed from a justice’s court to the superior court, is to be determined from the summons and the cause of action thereto attached. Where the summons required the defendant to appear and answer to a suit for the recovery of a sewing machine worth $50.00, with no other copy of the cause of action attached thereto, an appeal to the superior court did not lie. Nor was the case rendered appeal-able because the agidavit made to require bail stated that the hire of the property was worth $36.00.</p>

<p>Criminal Law. Charge of Court. Continuance. Practice in Superior Court. Before Judge Simmons. Randolph Superior Court. November Adjourned Term, 1884.</p> <p>Joe Phelps was indicted for the murder of H. J. Daniel. On the trial, the evidence for the state showed, in brief, as follows: Phelps and one Turner went by the house of Daniel about dark in the evening They were talking loudly and cursing. They asked for Daniel. At first, the wife of the latter refused to answer, but finally told them that he was not at home, but had gone to a neighbor’s. They then left. In two or three minutes, some one hallooed and a pistol fired. Daniel’s voice was heard crying, Oh! Lordy! ” and calling to his daughter to bring him his pistol. He was found seventy-five or eighty yards from the house mortally wounded. He stated to those who came to him that he heard the loud talking and cursing, and turned back to protect his family; that he met the defendant and Turner; that he stated to them that if they had no more respect for him, they must have for his family; that his wife was sick; and that if they did not cease cursing and disturbing his family, he would prosecute them; and that thereupon the defendant cursed him, drew his pistol and fired on him. He made dying declarations several times, to the effect that the defendant shot him.</p> <p>On behalf of the defendant, Turner, his comrade, at the time of the shooting, testified, in brief, as follows: They were returning from a place where the defendant had been to collect a debt, and went through the field as a shorter path. No threats or insulting words were used at Daniel’s house. _ They passed tho house, but spoke only to each other. They met Daniel in a path or road leading to the public road. He asked what they were hallooing so loudly about his house for. Turner said ho didn’t do it. Daniel called him a damned liar, caught hold of him and shook, him, then turned him loose, called to his daughter to bring him his pistol, and started towards the house, while the defendant and Turner started to walk on. Daniel went only a short distance, then came back, caught hold of the defendant and threw him “ in the edge of the road.” Phelps shot him. He then cried, '■ Oh! Lo'rdy.” The witness and the defendant were second cousins; they had been drinking a good deal that night, and had a pint flask of whiskey with (hem. The defendant was about half tight, and the witness was t; just about sober.” .</p> <p>Another witness was introduced to show certain statements made by the wife of the deceased when he called for his pistol, etc.</p> <p>The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved .for a new trial on the following grounds:</p> <p>(l.j Because the verdict was contrary to law and evidence.</p> <p>(2.) Because the court refused to grant a continuance on account of the absence of a witness j ust discovered that morning, by whom the defendant expected to show certain statements made by the wife of the deceased, to the effect that the defendant and his comrade did not use any abusive, threatening or insulting language and did not ask where Daniel was.</p> <p>(3.) Because the court charged as follows: “ If Daniel was cursing Phelps, and called to his daughter to bring him his pistol, and'Phelps pulled his pistol and shot him, that would not reduce the crime from murder to manslaughter.”</p> <p>(4.) Because, after the jury had retired, they returned to the court-room, and at their request the court charged them as to the different penalties attached to the crime of manslaughter in its different grades, the defendant or his counsel not consenting thereto. <</p> <p>The motion was overruled, and the defendant excepted.</p>

<p>Criminal Law. Wife-beating. Witness. Impeachment. Husband and Wife. Attorney and Client. Jury and Jurors. County Court. Before Judge Eaín. Bartow Superior Court. January Adjourned Term, 1885.</p> <p>Reported in the decision.</p>

Leases. Claims. Damages. Charge of Court. Evidence. Witness. Before Judge Simmons. Bibb Superior Court. October Term, 1884. The Lanier House Company sued out three distress warrants and brought an action of complaint against J. S. Stewart, based on rent notes, amounting in all to thirty-nine hundred dollars, for rent of the Lanier House, a hotel situated in the city of Macon.

<p>1 Jackson, C. J., being disqualified, Judge Marshall J. Clarke, of the Atlanta Circuit, presided in his stead.1</p> <p>1. The ground of attachment must be sworn to positively, and the language used must be such as not to leave it doubtful whether this requirement has been complied with. An affidavit that the attorney at law for the plaintiff in attachment “ comes before the undersigned, and on oath saith that H. I. Kimball, to the best of deponent’s knowledge and belief, is indebted to F. Krutina (in a sum stated), and that the said H. I. Kimball absconds,” is not a sufficient compliance with the law</p> <p>(a.) The decision in Meal vs. Gordon, 60 Ga., 112, reviewed and approved.</p> <p>2. Where an attachment issued, based on such an affidavit, and was levied, a judgment in attachment obtained, afi. fa. issued and levied, and a claim interposed, the claimant could move to dismiss the levy, on the ground that the attachment affidavit was defective. This does not conflict with the rule that a judgment shall not be collaterally attacked. That rule is restricted to irregularities in the judgment as the ground of objection, and does not apply to objections to a judgment as being void or a mere nullity.</p> <p>3. Such a motion was not objectionable on the ground that it was not made within three years from the rendition of the judgment. The claimant could not move in reference to the judgment until after the filing of the claim; and a motion by a claimant to dismiss a levy is not a motion to set aside a judgment, which must be made within three years from the rendition of such judgment</p>

<p>Pleadings. Ejectment. Yendor and Purchaser. Contracts. Evidence. Deeds. Before Judge Lumpkin. Hancock Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Where a shipper contracted with a railroad company to ship two hundred bales of cotton from Atlanta, Georgia, to Chicopee, Massachusetts, over a certain route, at a given price, and delivered the cotton to the railroad company, and afterwards a bill of lading was sent to the shipper, the liability of the railroad company was that of a common carrier to transport the cotton from the initial point to its destination; and it could not limit its liability by inserting in the bill of lading a provision that, for all loss or damage occurring in the transit, the legal remedy should be sought and held only against the particular carrier in whose custody the cotton might be at the time thereof, there being no express contraet to that effect, the bill of lading being signed only by the agent of the company, and not having been agreed to by the shipper.</p>

Partnership. Statute of Limitations. Before Judge Fain. Catoosa Superior Court. February Term, 1885. Ford brought suit, on September 29,1884, against Clark, as administrator of John D. Gray, deceased, on an open account, due in 1870.

<p>1. A special plea, which alleged that the indictment on which the defendant was about to he arraigned was never returned into court by the grand jury, hut -was brought in by their bailiff and handed to the clerk, who thereupon entered it on the minutes of the court, at which time none of the grand jurors were present, and that these several facts appeared from the minutes of the court, but which did not allege that the bailiff making the return was not the duly qualified officer of the grand jury, sworn in accordance with law, or that the indictment was tampered with or altered ill any respect, or that, in consequence thereof, the accused suffered injury or detriment, was demurrable and was properly stricken by the court.</p> <p>(a.) The history and reason of the manner of returning indictments discussed.</p> <p>2. Tho court did not err in instructing the jury that, although they were judges of the law as well as the facts, under the constitution of the state, they should take the law from tho court, and he was responsible for its correct exposition. This has been held in several cases, and while, in the case of Riderihour vs. State, at the present term of the court, two members of the bench expressed dissatisfaction with that view of the law, yet the former cases could not bo reviewed and reversed without the unanimous ruling of the full bench, which cannot be had.</p> <p>3. There was no error in striking the special plea which admitted the homicide with which defendant was charged, but denied his liability under the law to answer to the charge of murder because of his insanity at the time the deed was done. Under the law of Georgia, this defence, if insisted on, must he made under the general plea of not guilty, and if satisfactorily made out, it would finally acquit the defendant of the charge preferred against him and discharge him,</p> <p>(a.) The manner of trying such an issue in England formerly and at present, and the history and reason therefor, discussed.</p> <p>(&.) The necessity for legislation in respect to criminals acquitted on the ground of insanity in this state suggested.</p> <p>(e.) The Code (§§4673, 4299) provides for special pleas of insanity and the trial o£ the issues made thereon in cases of mental derangement existing at the time of the trial; and in no case can this special defence be put in without an averment of the existence of this diseased condition of the mind at that time.</p> <p>4. There was no error in refusing to charge to the effect that the prisoner’s sanity must be shown by the same amount of proof that is required to establish guilt in all other cases—that is, to the exclusion of all reasonable doubt.</p> <p>(a,) This court held, in the case of Carter -us. State, 56 Ga., 403, that the presumption of sanity should be rebutted by a preponderance of evidence of insanity .at the time the offense was alleged to have been committed, or the jury would not be authorized to acquit on that ground of the defence.</p> <p>(6.) The judge in this case did not restrict the defendant from using' the evidence in respect to insanity, together with other circumstances in proof, to cast doubt upon his guilt, and in so doing, he laid down as lenient a rule as the defendant was entitled to.</p> <p>5. There is nothing in the remaining grounds of the motion for new trial which would authorize an interference with the verdict. The charge was full, fair and impartial, and submitted fully the question of the defendant’s insanity, and the verdict was supported by the evidence.</p>

<p>When a plaintiff or complainant in a pending cause dies, his executor or administrator may be made a party, on motion in writing, of which the defendants or their counsel shall have notice. Where, pending the foreclosure of a mortgage, the defendant died, and his administratrix was made a party by scire facias, and the plaintiff having died, his executrix was made a party, without notice to the defendant, and judgment of foreclosure was at once rendered, the defendant not being present in person or by counsel, she had not had her day in court, and having a good defence to the foreclosure, an affidavit of illegality would lie to the fi. fa. issued thereunder,</p> <p>(a.) If the mortgage was given to secure a debt in Confederate money, and large payments had been made upon it, nearly or quite sufficient to have extinguished the debt, and the foreclosure was proceeding for the principal and interest in full in the present currency, this furnished a good ground of defence.</p> <p>(6.) If the only service of the rule nisi to foreclose the mortgage was by leaving a copy at the most notorious place of abode of the defendant, and there was no personal service, this furnished a good ground of defence to the foreclosure.</p> <p>(c.) It makes no difference that the foreclosure of the mortgage was proceeding in the name of the mortgagee for the use of another. The legal title to the mortgage was in the mortgagee, and the cáse could not proceed until his executrix was made a party, of which the defendant was entitled to notice.</p>

<p>1. This case turned on the question whether there was fraud in the giving of a note so as to absorb the share of a husband in his father’s estate, and thus defeat a recovery of alimony by his wife, who was living separately from him; and the evidence was sufficient to authorize a submission of this question to the jury.</p> <p>2. While generally it is a personal privilege to plead the statute of limitations, yet where a wife living separate from her husband had filed her bill against him and the administrator of hi s father’s estate to subject his interest in the estate to her claim for alimony, it would not be equitable to change an invalid claim against him in behalf of the decedent, all uncertain and confused, all out of date, except one fraction which seems doubtful, into a valid and certain one against the property which would be coming to him, and thus to defeat the wife’s action.</p> <p>3. Even if an administrator máy hold notes or other claims which are out of date, against the share of the distributee in the estate, yet he cannot set them off when the rights of others are concerned, and the indebtedness is found to be fraudulent, on an issue made to try that point.</p>

Evidence. Res Oestce. Railroads. Negligence. Non-suit. Before Judge Willis. Muscogee Superior Court. May Term, 18S5. Sarah Ferguson, as next friend of Isabel Ferguson, brought suit against the Columbus and Rome Railway for damages for a personal injury. The testimony on behalf of the plaintiff showed, in brief, as follows: The defendant’s turn-table, Avhich was located in its yard, in Columbus, Avas not locked or fastened.

<p>Landlord and Tenant. Contracts. Interest and Usury. Assignment. Liens. Before ■ Judge Lumpkin. Wilkes Superior Court. May Term, 1885.</p> <p>Reported in the decision.</p> <p>Scms & Shubrick ; Colley <fc Fortson, for plaintiff in error.</p>

<p>Railroads. Damages. Negligence. Presumptions. Practice in Superior Court. Before Judge Simmons. Bibb Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Libel. Actions. Torts. Perjury. Malicious Arrest. False Imprisonment. Malicious Prosecution. Practice in Superior Court. Demurrer. Verdict. Before Judge Clarke. City Court of Atlanta. December Term, 1884.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Practice in Superior Court. Verdict. Husband and Wife. Debtor and Creditor. Estoppel. Notice. Before Judge Willis Taylor Superior Court. February Term. 1885.</p> <p>Reported in the decision.</p>

<p>Municipal Corporations. Streets and Sidewalks. Damages. Negligence. Before Judge Willis. Muscogee Superior Court. November Adjourned Term, 1884.</p> <p>Massey brought suit against the Mayor and Council of Columbus for damages to himself and his horse, buggy and harness, caused by running into a gully left open in that city. On the trial, the evidence for the plaintiff was, in brief, as follows: The plaintiff lived about seven miles from the city, and had visited there for a number of years. He knew that some of- the streets had drains open in the center of them, but could not say whether all the streets running north and south were so drained. McIntosh street, on which the injury occurred, ran in that direction. He knew that there was a low place in the center of it by which it was drained, but when he last passed that place, early Monday morning, there was no ditch there. He returned Thursday night about eight o’clock. It was dark, and in attempting to cross the street, his buggy ran into a ditch, his horse became frightened and ran away, throwing the plaintiff out,'tearing up the buggy and injuring himself. The gull}r was dug by the city hands deepening the drain and throwing the dirt out of it on each side. It was about three or four feet wide, and was estimated at between one and a half and two and a half feet deep from the top of the dirt thrown out. The roadway was wide enough for travel on each side of the drain, and there were cross-streets running east and west at the end of every block. The city hands were at work on the ditch the day after the injury, and had been for some days before. The sides of the ditch were steep and not sloping. Plaintiff was driving slowly when his buggy ran into the gully.</p> <p>. The evidence for the defendants was, in brief, as follows: The system of drainage in Columbus is by open drains in the streets, running north and south, and the drain in the street where the plaintiff was hurt had been there for twenty or thirty years. There were crossings where the streets running east and west intersected those running north and south. The drain was worked out by the city, and when the plaintiff was injured, it was three or four feet wide and about eight or ten inches deep, counting from the top of the dirt thrown out of it; the sides were sloping, and by driving carefully, a person could cross, and it was often done. It was necessary to do this work to drain the street. Since then it has been found that the drain was not deep enough, and it has been dug out to about thirty inches in depth. The street was 132 feet wide, of which the sidewalks occupied 30 feet, leaving nearly fifty feet of clear street on each side of the drain.</p> <p>There was other testimony, as to the extent of the injury, which need not be set out in detail. The jury found for the defendants. The plaintiff moved for a new trial, one ground of the motion being the following charge of the court: “ If, however, a man could, by using ordinary care, have prevented the damage to himself, then he would not be entitled to recover damages; it don’t make any difference in what condition they were; if, by ordinary care, he could have avoided the damage that he sustained, then he would not be entitled to recover any damages whatever ; therefore the first question that you will consider in this case is, diet the city of Columbus keep its streets, sidewalks and bridges in such a condition as they could be safely traveled in the ordinary way of traveling, the usual mode of traveling through its streets by day and by night? If they did keep them in that condition, then they are not •liable for any damage at all; but if they failed to keep them in that condition, then they are liable, provided the plaintiff in this case could not have avoided the damages that resulted to him, if any did result to him on that occasion. If one, without necessity, without its being necessary, either for his pleasure or his- convenience, deviates from the traveled track, it being in good condition, and in so doing meets with an accident from some cause outside of the track, then the town will not be liable for damages that he may have sustained on that occasion.”</p> <p>The motion was overruled, and the plaintiff excepted.</p>

<p>1. By the laws of Alabama, a mortgage of personal property may be admitted to record without acknowledgment and proof of execution, and without witnesses; and when recorded, it operates as notice of its contents.</p> <p>2. Where a mortgage on personal property, then in Georgia, is executed in this state by a non-resident thereof, the law requires it to be recorded in the county where the property is when it is executed. Where a mortgage so executed was not thus recorded until long after the time provided by law, and until the property had been surrendered by the mortgagor to the person from whom he bought it, and to whom he had given a mortgage with a reservation of title in the vendor until payment, which was recorded in Alabama, and until the property had been sold after such surrender to a third person, the Georgia mortgage lost its lien, and the last purchaser took the title freed therefrom.</p> <p>3. Whether the horse, which was the subject of the controversy, was properly described in the Alabama mortgage, and whether or not the horse so described was the same as that levied on under the Georgia mortgage, were questions of fact which were properly left to the jury.</p>

<p>1. Where a suit was brought against a firm, and in addition to the general issue, the defendants filed a plea that they were not liable on the account sued on, for the reason that they never at any time bought said bill of goods from the plaintiff, nor did they authorize any one else to purchase the same or authorize the plaintiff to sell the goods to an3r one, a verdict for the plaintiff against one of the defendants, if warranted by the evidence, would bo sustained, and would not furnish any ground for a motion in arrest of judgment. If the proof showed that only one of the defendants was liable, tho declaration could have been amended, on objection, and evidence of his liability having been admitted without objection, a verdict against him will be sustained.</p> <p>(a.) There was no material error in charging that the jury might find against both defendants or against one of them only (if they found for the plaintiff!, according to the truth as it appeared from the evidence.</p> <p>(6.) A misjoinder of the defendants is matter for a dilatory plea or plea in abatement, and must be taken advantage of at the first term of tho court.</p> <p>(c.l Where suit was brought against a firm composed of two members, and the jury found in favor of the plaintiff against one of the partners, a reasonable construction is to be given to the finding which will not avoid it except from necessity, and so doing, the verdict will be construed as finding in favor of the other partner.</p> <p>2. It is bad practice for a judge to certify statements of his charge in a motion for new trial, which are not correctly set forth, qualifying his approval with the statement that the ground should be corrected by reference to his charge, which is appended to the motion. Tho grounds should bo made to speak the exact truth, or the judge should refuse to certify to their correctness.</p> <p>(a.) Where suit was brought against a firm to recover for goods alleged to have been furnished on account of the partners, and at their request ti a third party, and evidence was introduced to show that this was done at the instance of one of the partners, but not of the firm, it was proper to submit to the jury the questions at issue, and to leave them to decide on whose credit the goods were really furnished The manner in which the charges were made ■would furnish proof to whom the goods were sold, unless it were shown to tho satisfaction of the jury that the real contract was that the goods were furnished on the credit of another than him to whom they were charged; if this were done, the manner in which the charge was made would then become immaterial.</p> <p>(6.) The charge excepted to, in connection with its context, substantially covered this principle. If fuller instructions were desired, they should have been asked.</p>

Recoupment. ’ Evidence. Charge of Court. Onus Probandi. Witness. Before Judge Simmons. Bibb Superior Court. October Adjourned Term, 1884.

<p>1. The giving of a bond is a condition precedent to the return of the papers to court for trial, where an affidavit of illegality is tendered to the execution issued on tho foreclosure of a chattel mortgage, and if the bond be not conditioned substantially as the statute requires, the papers ought not to be returned to court and the sale suspended.</p> <p>2. The condition of the bond prescribed by the statute is ‘1 for the return of the property when called for by the levying officer.” This requirement is not met by a bond, the condition of which is that the defendant “should return the property . . to the levying officer in case the issue formed on the affidavit of illegality . . . should be found against the said AV. D. Brantley”, (the defendant); and an affidavit, accompanied by such a bond, was properly'dismissed.</p>

<p>Distress Warrant. Homestead. Claim. Before Judge Stewart. Upson Superior Court. July Term. 1885.</p> <p>Reported in the decision.</p>

<p>1. TJpon the death of a father, in 1862, leaving a wife and two minor children, the land which he owned at the time of his death vested in them as tenants in common, and if, in 1869, the widow, as the head of a family of minor children, made application and had set apart to her as a homestead all of the land left by him, and subsequently, in 1873, conveyed this land, with the approval of the ordinary, the action of the ordinary in setting apart the interest of the minor children as a homestead was void, and when the widow conveyed the land so set apart, she conveyed only her one-third undivided interest in the same, and the purchasers acquired no more. The act of the ordinary and the sale by the widow being void as to the interest of the children, their rights were not affected thereby, and the act of 1876, which required suits for the recovery of homesteads to be brought in a court of equity within six months after its passage, did not bar a suit by the children as heirs of their deceased father.</p> <p>2. The title to the land of the deceased parent having vested in his heirs upon his death, and a sale of such land under a judgment against his administrator being void on account of uncertainty in the levy, possession for seven years under the sheriff’s deed as color of title would not give a prescriptive title against the minors, if they brought suit for their interest in the land upon arriving at age.</p> <p>(a.) There are equities in behalf of the purchasers in this case, and upon proper pleadings, the children, will be bound to account for all moneys which they may have received, or which may have been expended in their maintenance and education, or which may-have been paid by the purchasers under the sheriff’s sale, whereby the property was protected from the liability of their father, and for any property which they may have received which was purchased by the money paid by the defendants for the land in controversy ; also for all improvements upon the land made by the defendants, the latter accounting to them for reasonable rents.</p>

<p>An action of ejectment was brought to recover land which had been sold to the defendant by the plaintiff, and for which a bond for titles had been given, some of the purchase money remaining unpaid. The defendant pleaded as follows: He was induced to purchase the land by the false and fraudulent representations of the plaintiff, that the tract contained six hundred acres, when, in fact, it contained only a little over three hundred acres. A part enclosed under fence, near the Catoosa Springs, did not belong to the plaintiff, and this, in a great measure, destroyed the value of the springs property. The premises were represented to bo in good repair, and he was prevented from examining them by reason of the plaintiff's having locked up the houses and carried off the keys, until the contract was made. The defendant paid $2,500 in cash, and gave his note for $7,500 as the balance of the purchase money. When he examined the premises, he found them out of repair and in a very dilapidated condition, and he expended a very large sum of money in repairing them. The purchase was induced and made by reason of these false and fraudulent representations. Defendant prayed a rescission of the contract, and that the plaintiff be decreed to pay him the amount, expended in repairing the premises and the amount which he had paid on the purchase money. He offered to account for and pay the rents:</p> <p>Held, that the allegations in the equitable plea were sufficient to authorize the relief prayed for, although no insolvency was alleged.</p> <p>(a.) This case differs from those in 59 Ga., 455 ; 53 Id., 18; 60 Id., 338.</p> <p>'6.) The plaintiff having brought his action of ejectment in Catoosa „county, this gave the superior court of that county jurisdiction, under proper pleadings by the defendant, to hear and determine the controversy between the parties; and the defendant was not compelled to go to another county, where the plaintiff lived, and there file a bill for the rescission of the contract.</p>

<p>Contracts. Vendor and Purchaser. Equity. Landlord and Tenant. Before Judge Simmons.' Eloyd Superior Court. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>If the maker of a note induced the payee to extend the time of payment and receive a mortgage to secure the claim by fraudulently representing that a prior mortgage on the property had been discharged, upon the discovery of such fraud, the creditor could have rescinded the agreement and returned the mortgage; but if he failed so todo, and instead retained the mortgage, and waited until the maker’s property had been sold under the prior liens thereon, this would operate to discharge a surety or accommodation indorser, and the creditor could not recover from such surety or indorser, on the ground that the agreement with the principal was induced by fraud and was without consideration.</p>

<p>An execution was levied and a claim interposed by a man as agent for bis wife and children, and a forthcoming bond given. The property was found subject, and a breach of the bond occurred by a failure to deliver the property on the day of sale. Another claim was interposed by the wife in her own right, and the usual bonds given. The property was found not subject. Suit was brought on the forthcoming bond given in the first case :</p> <p>Held, that the record in the second case was admissible in evidence.</p>

<p>Equity. Trusts. Debtor and Creditor. Before Judge Bower. Dougherty Superior Court. October Term, 1884.</p> <p>Reported in the decision.</p>

<p>Where, pending an application for exemption, the property sought to he exempted is sold at a judicial sale, subject to the right of exemption, the purchaser at the sale takes the property subject to the same right of exemption; and if afterwards it be allowed by the ordinary, the applicant may maintain trover against any one who may have converted personalty so sold. No demand is necessary where the defendant has sold the property, but such saléis itself a conversion.</p>

<p>Husband and Wife. Dower. Waiver. Fraud. Estoppel. Before Judge Hutchins. Walton Superior Court. February Term, 1885.</p> <p>Reported in the decision.</p>

Railroads. Negligence. Damages. New Trial. Before Judge Pate. Pulaski Superior Court. November Adjourned Term. 1884. Culler brought suit against the East Tennessee, Virginia and Georgia Railroad for the killing of a mule. On the trial, the evidence for the plaintiff was, in brief, as follows: The mule was put in a lot in Cochran at night, but got out and went about one and a half to two miles; next morning it was'-found cut in half, lying beside the track of the defendant.

Landlord and Tenant. Liens. Crops. Before Judge Hansell. Brooks Superior Court. May Adjourned Term, 1885. Hopkins ruled the bailiff in the county court of Brooks county. There were two claimants of the fund in the bailiff’s hands. Hopkins claimed it under a judgment in attachment against L. T. Pedrick. The attachment was levied on certain cotton and corn on September 2,1884, which the bailiff gathered on the farm operated by the defendant.

<p>1. Where counsel for both parties in a certiorari were present, and also the justice whose decision was excepted to, and one of the attorneys moved orally in open court that the justice be permitted to amend his answer, by stating a particular fact, which had been omitted in the original answer, which was allowed, no objection being made, at the next term thereafter, a motion to strike out the amendment was properly overruled.</p> <p>2. Where a cropper had raised certain cotton on the rented land, and the landlord was about to sell it, when a person holding a mortgage on the cotton, given by the cropper, resisted the sale, and threatened to stop it under his mortgage, and in order to free the cotlon from this threatened interposition and the law-suit consequent thereon, the landlord promised to pay the debt of his cropper and tenant for advances made to him in raising the crop, this was not a voluntary verbal promise to pay the debt of another, and therefore within the statue of frauds, but was a promise based on a valuable consideration. Nor did it make any difference whether the mortgage was good or whether it was insufficient to take the cotton.</p> <p>3; The mortgage held by the defendants in error was properly admissible and admitted, because it was an important element to make the consideration for the promise, which made it an original undertaking, and took it without the statute of frauds.</p> <p>4. A remark of a justice of the peace in ruling on the admissibility of evidence, as to its effect if true, would not require a new trial, though made in the hearing of the jury.</p> <p>5. If evidence of the sayings of a landlord as to his dealings with his tenants and croppers was admissible, it was admissible to impeach him by showing his acts, to contradict his statements.</p>

Practice in Superior Court. Charge of Court. Principal and Agent. Payment. Promissory Notes. New Trial. .Attorney and Client. Argument. Before Judge Kibbee. Laurens Superior Court. January Term, 1885 To the report contained in the decision, it is necessary only to add the following grounds of the motion for a new trial: (1.) Because the verdict was contrary to law.

Negligence. Homicide. Husband and Wife. Words and Phrases. Master and Servant. Charge of Court. Verdict. Before Judge Hutchins. ,, Clarke Superior Court. May Term, 1885. Mary A. Bain brought suit against the Athens Foundry and Machine Works to recover for the homicide of her husband, laying her damages at;$25,000.00.

Criminal Law. Certiorari. Costs. Levy and Sale. Prohibition. Before Judge Fort. Stewart Superior Court. April Term, 1885. H. M. Stephens was arrested on a warrant, based on an affidavit, stating that John Wallis was in fear of bodily harm and'of ‘‘ violent personal inj ary to his property ” from the defendant.

<p>Suit was brought on a note and on a balance alleged to be due on an account. The defendants denied indebtedness, and pleaded payment of the note and recoupment for damages alleged to have been sustained by reason of the violation on the part of the plaintiffs of instructions as to the sale of certain cotton. The evidence made it clear that forty-five bales of cotton were sent by the defendants to the plaintiffs and ordered to be sold, and that the amount of the sale was directed to be applied to the satisfaction and payment of the note; and from the entire course of dealings between the parties, it was evident that these instructions were carried out and that the proceeds of the sale were thus applied. The sale brought more than enough to pay this particular indebtedness :</p> <p>Held, that a verdict for the plaintiffs for the entire amount was contrary to law and evidence.</p> <p>(a.) Eight to direct appropriation of payments, and application where no direction, discussed.</p> <p>(6.) Neither bank checks nor promissory, notes are, as a general riñe, deemed a payment until they are themselves paid. But they might be considered payment if the parties so understood and agreed; and a fortiori, without such an understanding, agreement or direction, a promissory note would not be converted into an indebtedness by account, by a simple transfer or memorandum of such note made on the books of the creditor.</p>

Deeds. Title. Charge of Court. Boundaries. Witness. Evidence. Before Judge Hutchins. Franklin Superior Court. March Term, 18S5. Wilkerson brought ejectment against Wood. The plaintiff having died pending the action, his legal representative was made a party in his stead. The jury found for the plaintiff.

Interest and Usury. Sales. Contracts. Before Judge Fort. Stewart Superior Court. April Term. 1885. O. H. Mathews, administrator of James A. Mathews, deceased, brought suit against J. F. Irvin on two promissory notes, one for $5,894.89, principa], the other for $2,373.24, principal.

<p>1. Where to the foreclosure of a chattel mortgage a defence was filed, alleging “ that the agreement to pay the sum of eighty-five dollars, mentioned in the mortgage, was usurious, in that the goods sold by plaintiff in fi. fa. to defendant were worth, at cash prices, only the sum of fifty dollars, and that the sum of thirty-five dollars was charged as credit on said sum, and amounted to more than one hundred per cent per annum,” this was insufficient as a plea of usury, and was properly stricken on demurrer. It failed to show any contract for a cash price, or for extending the time, or forbearing to collect for a greater rate of interest' than the law allows.</p> <p>2. A stipulation in a mortgage that, if the mortgagor failed to pay promptly, the mortgagee might take possession of the property and sell it at either public or private sale, did not restrict the enforcement of the mortgage to that method or deprive the mortgagee of the remedy given by law. The agreement merely conferred a cumulative remedy, and a demand for the property was not necessary as a condition precedent to foreclosure</p>

<p>1. The measure o£ damages against a carrier, when he fails to deliver goods in a reasonable time, in the absence of a special contract, is the difference in the market value of those goods, when actually delivered, from their value if delivered in a reasonable time. Where there was no special contract sued on or proved, it was error to admit evidence to show that the consignees had bargained off the cotton shipped at three-eighths of a cent per pound over the market price, if they could have received it within a reasonable time, though the carrier knew nothing about that bargain, was not informed of it and not in privity with it at all.</p> <p>2. Whether goods shipped are delivered by the carrier within a reasonable time is a question of fact for the jury, and depends on the facts of each case, including the time ordinarily required for carriage between the two points, the preparations made by the carrier, whether ample or not, the effort at dispatch, the information given to the shipper of peculiar reasons for speedy transit and delivery, the character of the freight, and kindred circumstances.</p> <p>(a.) Questions not decided by the court below cannot be reviewed here.</p>

Jury and Jurors. Pleadings. Indictment. Continuance. Evidence. Yerdict. Code. Before Judge Hutchins.' Walton Superior Court. February Term, 1885. Oscar E. Carter was indicted for using opprobrious words without lawful provocation. He filed a plea in abatement, on the ground that six of the grand jury who found the indictment were over' sixty years of age. This plea was overruled on demurrer.

<p>Complainant in an equity case obtained a decree that, upon paying the defendant two thousand dollars within six months, the latter should convey to him a certain tract of land, the defendant having contended in the litigation that the complainant should pay him $4,500. Complainant’s attorneys recorded their lien against the land. Complainant procured a third party to advance the money due under the decree; defendant conveyed the land to the plaintiff, who conveyed it to the third party as security for the money so advanced. The attorneys foreclosed their lien and caused the land to be levied on, and a claim was interposed:</p> <p>Held, that the lien of the attorneys attached to the land when it was conveyed to the complainant, and followed it into the hands of the person to whom the complainant conveyed it.</p>

<p>1. Whilst ordinarily a party cannot put his general character in issue unless it be assailed, yet where- the very nature of the cause and the allegations in the libel make the attack upon his character, he may take the initiative and prove good character. Where a libel for divorce was based on cruel treatment of the wife, consisting in forced, vulgar and excessive use of the husband’s marital rights and the threat of introducing lewd women, such a charge involved the character of the husband, and he could introduce evidence of good character.</p> <p>2, There was no error in confining a witness who conversed with the respondent to his sayings, and in declining to admit the impressions made upon the mind of such witness, under the facts of this case.</p> <p>S. The charge substantially covers the requests, and the facts' are overwhelmingly in favor of the respondent, and any divergence from the requests is not sufficient to require a new trial.</p> <p>4. If letters written by the wife to the husband after their separation were admissible on the trial of a 'libel for divorce -brought by her against him, they were not sufficient in this case to alter the verdict. Nor could the newly discovered evidence have that effect.</p>

<p>Arbitration. Practice in Supreme Court. Insurance. Husband and Wife. Before Judge Simmons. Bartow Superior Court. January Term, 1885.</p> <p>Reported in the decision.</p>

Deeds. Forgery. Record. Evidence. Before Judge Branham. Paulding Superior Court. February Term, 1885. James L. Logan brought complaint for land against Anderson Walter. The plaintiff,- by affidavit, raised an issue of forgery on a deed held by the defendant. On the trial, the jury found that the deed was not genuine. The facts on which the verdict rests -are sufficiently stated in the decision.

<p>. Equity. Railroads. Yerdict. New Trial. Corporations. Municipal Corporations. Practice in Superior Court. Evidence. Damages. Decrees. Torts. Injunction. Before Judge Simmons. Bibb Superior Court. April Term, 1885.</p> <p>This case, as 'made by the bill, will be found reported in 73 Ga.f 428. . Upon its return from the Supreme Court, it was tried before a jury. To the report, as set out in the decision, it is necessary to add only that the grounds of-the motion for a new trial were as follows:</p> <p>(1.) Because the verdict was contrary to law and evidence.</p> <p>(2) to (10.) Because the second and the fourth to tenth findings, inclusive, of the jury were contrary to law and evidence (specifying them).</p> <p>(11.) Because the court refused to submit the following question requested by respondents: “Is the city of Macon liable for any damage; if so, how, and for how much ? ”</p> <p>(12.) Because the court refused to submit the following question to the jury : “ Is the Bibb Manufacturing Company liable in this case in any way except as a guarantor of the city of Macon; if so, in what other, how, and how much ?”</p> <p>(13.) Because the court refused to charged, that if the complainant had encroached on the sidewalk, this should be considered in assessing damages.</p> <p>(14.) Because the court refused to cnarge: “ If the Macon Street Railroad Company built, and is operating by license from the city council the right to use the street with reasonable obstruction is not an element of damage, nor is the jolting over iron rails, nor the apprehension of the safety of children, nor are possibilities in case of sickness, nor inconvenience to visitors, nor obstructing ingress or egress, nor any fanciful or speculative damages or sentimental injuries, elements of danger. The damage which the law recognizes must not be fanciful, but must be tangible and determinable by proof. It must be actual depreciation, based on substantial reasons shown by the testimony and all traceable to building and running of the road or both.” [In a note the presiding judge refers to the general charge on this subject.]</p> <p>(14£.) Because the court admitted the following testimony of Green J. Blake, over objection of respondents: “ I do not know that the running of steam-cars increases the risk of fire, but I suppose the insurance companies would charge more for insurance.’' [The court refers to the record.]</p> <p>(15.) Because the court rejected testimony of George S. Obear, to the effect that the purchasers of the street railroad at sheriff’s sale did so on assurance of the directors that the franchise passed. [The court refers to the record.]</p> <p>(16.) Because the court ruled out Hanson’s testimony, to the effect that when Harris first threatened suit, he offered to purchase his property at whatever real estate agents, selected by Harris himself, might appraise.</p> <p>(17.) Because the court refused to submit to the jury the question, “Was there a legal reorganization of the Macon Street Railroad Company, and is not the company in actual possession and control of the franchise, and is not said road being operated under said franchise ? ”</p> <p>(18.) Because the court refused to submit to the jury the question, “ Was the Macon Street Railroad on Hawthorne; street constructed and run for the benefit of the Bibb Manufacturing Company only, or was it constructed and being operated for the public—whoever desired it?” (19.) Because the court refused to submit to the jury the following questions: “What was the value of Peter Harris’s property on Hawthorne street in 1881 before building the road? Its value at the time of filing the bill? Its rental value before road constructed ? Its rental at the time of filing bill ? ”</p> <p>(20.) Because the court erred in submitting to the jury the question, “Was the new organization a fair business transaction, or was it a sham to enable the Central Railroad to get possession of the street railroad mainly for the benefit of the Bibb Manufacturing Company ?” without having, first submitted the same to respondents’ counsel and given them an opportunity to discuss the same to the ■jury. [Note by the court: “I do not remember this as Mr Davis states it. He, however, is so confident of it, that I dislike to disapprove it.”]</p> <p>(21.) Because the court erred in not permitting respondents to re-open the case, after announcing closed, and to take testimony of A. P. Collins as to damage to Harris’s property.</p> <p>[To this ground the court added the following note:</p> <p>“ The taking of the testimony in this case consumed the entire day. Night was coming on, and I announced that I intended to get through with the evidence before I adjourned. Counsel went on for sometime after this, and finally said they were through, with the exception of above, who was detained by sickness in his family. They asked leave to introduce him in the morning, which was agreed to by court. Dr. Collins was then in the court, and had been there all day. It is true that Mr. Harris stated next morning what he states in this ground. Mr. Davis, who had examined the witness, stated that he did not forget Collins, but had changed his mind. I refused to allow him to be introduced, as it would have re-opened the whole case.”]</p> <p>(22.) Because the finding of the jury to 3d question is contrary to evidence.</p> <p>(23.) Because the verdict and finding of the jury are conflicting, insufficient, do not; settle the material issues; and not sufficient to authorize any intelligent decree.</p>

Homestead. Title. Levy and Sale. Mortgage. Debtor and Creditor. Bes Adjudieata. Before Judge Branham. Walker Superior Court.' February Term. 1885. On January 1, 1881, a mortgage fi. fa. in favor of X. G. McFarland against George W. Willis was levied on fifty acres of land in land lot 31 of the ninth district and fourth section of Walker county, and a claim thereto was interposed by Mary C. Rutledge et al., children and grandchildren of Willis.

<p>1. Where a suit was brought against the board of county commissioners of Decatur county, naming them, alleging that they had injured and damaged the plaintiff by proceeding, as such commissioners, to deprive him of a certain bridge and ferry franchise, and appropriating to the public use not only such franchises, but a portion of the lands belonging to him, by enter ing thereon, and had commenced and continued to lay off a public road on both sides of the river running there, and to erect a bridge over that stream within thirty or forty yards of the site on which plaintiff’s bridge stood, and that they were preparing to use the same for the benefit of the public, this was designed as a suit against the county, and the board of commissioners, as agents of the county, were made parties instead of the county itself.</p> <p>(a.) Since the constitution of 1877, all suits by or against a county must be in the name of the county. No legislative action was necessary to put this positive requirement of the constitution into operation, and provision had been made for service where the county was a party.</p> <p>2. Such a suit having been brought against the board of county commissioners, it could not be amended by making the county a party; nor could it be amended by striking the name of the board of county commissioners and changing the suit into one against the commissioners as individuals.</p> <p>3. It is unnecessary to decide whether the action against the county is barred because of a failure on the part of the plaintiff to present his claim within twelve months</p>

<p>Sales. Evidence. Conditional Sales. Election. Debtor and Creditor. Evidence. Waiver. Before Judge Kibbee. Dodge Superior Court. November Adjourned Term, 1883.</p> <p>Reported in the decision.</p>

<p>Where a declaration in Sumter superior court prayed for process requiring the defendant tobe and appear “at the next superior court of said county,’- and the original process required him to be and appear at the superior court to be held “in and for said county of Sumter on the second Monday in April next,” but by mistake the copy-process required the defendant to appear at the superior court tobe held “ on the _ second Monday in December next;” and where it appeared that the process and copy-process were dated December 28, 1883; that the next term of Sumter superior court was in April following, and that no term of court met in December, the service of this declaration and copy-process was sufficient to put the defendant on notice of the case, and if he took no action until after the rendition of judgment, this clerical defect would not be sufficient to cause it to be set aside; nor would it furnish a ground for an affidavit of illegality.</p>

<p>1. The .rule in England is that in an equity case minors or infants must be served with the bill and subpoena in person, and after this a guardian ad litem is appointed for them by the chancellor; but in this state, from the passage of the act of 1854, authorizing the judges of the superior courts in chambers, upon petition, to change trustees or order a sale of trust property, etc., and providing that if minors are interested and they have no guardian, guardians ad litem must be appointed and notified before the cause proceeds, 'until the .passage of the act of 1876, which provides differently; it was the constant practice not to notify the infant, but to appoint a guardian ad litem to represent him. To hold such an order void would be to overthrow the practice of over thirty years and unsettle titles to property and cause endless litigation.</p> <p>2. A decree in this case subjecting a trust estate will be sustained, on the ground that the debt incurred was for money advanced to improve the trust estate, even if the order authorizing the mortgage and loan were void.</p> <p>3. A corporation having executed an assignment while it was still in existence, it passed title to a debt or claim included therein to the assignees for the benefit of creditors of the association. The debtors of the corporation cannot attack it, on the ground that the charter has since expired. If void at all, it would be at the instance of creditors.</p>

<p>[Jackson, C. J., not presiding, on account of indisposition.]</p> <p>Where three parties owned and'ran a saw-mill jointly, on the agreement that one of them was to conduct the operations of the mill, pay all its expenses from the proceeds, and divide the net profits equally between himself and the other two, the three jointly owning the property from -which the income was derived, this constituted a partnership between them.</p> <p>(a.) A charge to the effect that if, under the contract for running the saw-mill, one of the parties was to be responsible for no part of the expenses or losses, but was to have a share of the profits only, such a contract would not make them partners, and the person conducting the mill could sue in his own name for lumber sold, was error, because it ignored all other facts 'in the case tending to show that a partnership existed, and it did not fairly submit the issue. If there were two views of the case, under one of which a partnership would have existed and under the other not, the question should have been fully and fairly submitted to the jury.</p>

Fraud. Debtor and Creditor. Title. Notice. Evidence. Parent and Child. Garnishment. Attorney and Client. Claims. Admissions. Charge of Court. Before Judge Simmons. Houston Superior Court. April Term, 1885. To the report contained in the decision, it is necessary only to add the grounds of the motion for a new trial, which were as follows: (1), (2), (3.) Because the verdict was contrary to law and evidence.

<p>Railroads, Roads and Bridges. Streets and Sidewalks. Presumptions. Municipal Corporations. Verdict. Before Judge Simmons. Bibb Superior Court. April Term, 1885;</p> <p>Reported in the decision.</p>

<p>Homestead. Injunction. Husband and Wife. Before Judge Estes. Habersham Cóunty. At Chambers. June 27,1885.</p> <p>Reported in the decision.</p>

<p>Estoppel. Charters. Roads and Bridges. Damages. Constitutional Law. Eminent Domain. County Matters. Before Judge Bower. Dougherty Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Executions. Judgments. Decrees. Equity. Attorney and Client. Jurisdiction. Before Judge Bower. Dougherty Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. The verdict was supported by the law and evidence.</p> <p>2. Under the Code of Georgia, a room or apartment in a public inn becomes the dwelling of a person when it is either occupied or hired by him, and an indictment alleging a room in an inn which was occupied by a servant thereof to be his dwelling, and charging the accused with breaking and entering it with intent to take, steal and carry away the personal goods therein found, was sufficiently technical and could be plainly understood.</p> <p>(a.) That the room was occupied by another, as well as the prosecutor, does not, in legal contemplation, make it any less the dwelling of the prosecutor. All that the law required was that the indictment should identify the dwelling broken and entered with burglarious intent, and that it should show that it was not the dwelling of the party so breaking and entering, but that it was occupied by the prosecutor.</p> <p>(6.) There was no error in charging that if the defendant broke and entered the room of the prosecutor for the purpose of committing a felony or larceny, he would be guilty of burglary.</p> <p>3. Counsel for defendant having consented that the statement as to the confessions of the defendant might be made in the presence of the jury, and when they were ruled out, having stated that he did not ask to rule out any facts discovered in consequence of the confession, there was no impropriety in the remark of the judge to the effect that he ruled out the confession, but did not rule out the testimony in reference to finding the goods, although they were found by reason of the confession.</p> <p>(a.) Although a confession obtained by means of promises or threats cannot be received, yet if, in consequence of that confession, certain facts tending to establish the guilt of the prisoner are made known, evidence of the facts may be received, together with so much of the confession as relates strictly "to the facts discovered by it.</p>

<p>1. After a bridge has been completed, it is too late to obtain an injunction to prevent its completion; and it is not within the power of a chancellor at chambers to grant a mandatory order requiring a municipal corporation to remodel or remove any part of a bridge forming a part of one of its streets.</p> <p>2. The testimony as to the safety of the bridge in controversy being conflicting, there was no abuse of discretion in refusing an injunction.</p> <p>(a.) On the final trial, the equitable rights of all parties may be determined.</p>

<p>1. The decision complained of should be plainly specified, as well as the error alleged therein, and he who alleges error must show error. Particularly is this true in cases of exceptions to a master’s or auditor’s report, as it, after allowance by the court, is prima facie the truth, and becomes conclusive if not excepted to, or if exceptions be taken and disallowed, and is always sustained where exceptions are questions of fact and there is no evidence to support them..</p> <p>(a.) It is not satisfactorily shown uo this court that the court beiow erred in ruling on the exceptions to the auditor’s report.</p> <p>2. Exceptions to a master’s or auditor’s report are not pleadings in such sense as to give a right of amendment by adding new exceptions, after certain exceptions have been filed and disallowed, and the time allowed for excepting has elapsed, and the case has proceeded to trial. The right to except to the report arises under a special rule, by which the court may allow time for excepting. Where the time for filing exceptions is limited by the order, exceptions cannot afterwards be made, except by leave of the court and. upon good cause, shown, and then it is in the discretion oí the judge to allow or disallow them.</p>

<p>Contracts. Actions. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1884.</p> <p>Reported in the decision.</p>

Trusts and Trustees. Statute of Limitations. Before Judge Lawson. Jasper Superior Court. April Term, 1885. To the report contained in the decision, it is necessary to add only that the exact age of the complainant (Mrs. Downs) does not appear (her husband being a mere formal party), but it was stated that she was married in 1857. The defendant set up in his answer the bar of the statute of 1869.

Debtor and Creditor. Homestead. Purchase Money. Interest and Usury. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1884. Russell brought ejectment against Bugg, based on a deed from the latter to the former. The defendant pleaded that the deed was made to secure a debt infected with usury and was void. Russell brought suit on the note made by Bugg to him. The defendant pleaded usury.

<p>Specific Performance. Equity. Injunction. Judgments. Promissory Notes. Title. Before Judge Ham mond. Fulton Superior Court, March Term, 1885</p> <p>Reported in the decision.</p>

Criminal Law. Police. Officers. Arrest. Evidence. Before Judge Willis. Muscogee Superior Court. May Term, 1885. . Huron Harrell was indicted for assault with intent to murder, committed on tbe person of Zeno Pickett. On the trial, the evidence for the state was, in brief, as follows : Pickett was a policeman in the city of Columbus. On the day of the alleged offense, he was near the bridge leading across the Chattahoochee river into Alabama and was in uniform.

<p>1. "Where a certiorari was taken from the trial of a case of forcible entry and detainer before a justice and jury, and the plaintiff in certiorari paid the costs which had accrued and gave bond for all future costs, this was a substantial compliance with the statute, and a motion to dismiss the certiorari was properly refused. In such a case there is no eventual condemnation money except the costs.</p> <p>2. On the trial of a case of forcible entry and detainer, a party is entitled to purge the jury by putting them on their voire dire, in order to show that they are not fair and impartial jurors.</p>

Practice in Supreme Court. Constitutional Law. Contracts. Roads and Bridges. Before Judge Stewart. Rockdale Superior Court. August Term, 1884.

<p>New Trial. Administrators and Executors. Fraud. Statute of Limitations. Guardian and Ward. Before Judge Brown. Cherokee Superior Court. February Term, 1885.</p> <p>This was a hill filed by the sons of a decedent against the administrators on his estate for an accounting. It was alleged that they bad obtained a discharge by fraud, which the complainants had discovered only some two months before suing. The discharge was obtained in 1871; the bill was filed in 1877; one of the complainants became of age in December, 1S71, and the other about two years later. The former had a guardian; the latter had none.</p> <p>The principal points in contest rested on the discharge of the administrators and the statute of limitations. The case was referred to an auditor, and exceptions to his report were filed. The jury found against the exceptions. A motion for a new trial was made and overruled, and the defendants excepted.</p>

<p>Where a firm contracted a debt, and subsequently dissolved, and thereafter, with notice of the dissolution, the creditors accepted the individual drafts of one of the partners for the debt, and ex-, tended the time of payment, without the knowledge or consent of the retiring partner, the latter was thereby released from such debt.</p>

Criminal Law. Jury and Jurors. Alibi. Before Judge Estes. White Superior Court. April Term, 1885. Ledford, with others, was indicted for riot, and on his trial was convicted. He moved for a new trial, on the following among other grounds : (1.) Because the verdict was contrary to law and evidence. (2.) Because the court charged as follows: “The defendant, gentlemen, sets up the defence of alibi, which is a com•plete defence when made out. The word means elsewhere.

<p>1. Where it is shown that a private way 'has been in constant and uninterrupted use for seven years or more, with no legal steps taken to abolish the same, the obstruction of it is unlawful, and such obstruction may be removed on petition to the ordinary. Code, §§737-, 738; Acts 1872, p. 60.</p> <p>2. Whilst the way is confined by the law to a track of fifteen feet (Code, §721; 61 (7a,., 20, 30); yet the mere running around one spot until the road there could be repaired within a few hours, which was done and it was immediately resumed as the way again, is not such an increase of width as to break the continuance of the use of it.</p> <p>3. The constitutional provision in the first paragraph of the 3d section of the 1st article of the constitution (Code, §5025), which dedares that “In cases of necessity, private ways may be granted upon just compensation being first paid by the applicant,” has no application to a private way acquired by- prescription by seven years’ continuous use of the way.</p> <p>Í. The doctrine that prescriptive titles to the fee in real estate’ by seven years’ possession cannot originate in consent, because the possession there must bo adverse all the time, does not prevail or " apply to a right-of-way, under the act of 1872, and the Code, for the reason that knowledge and acquiescence of the owner of the lands is of the very essence of the right-of-way against the owner. He must have six months’ knowledge to make the right-of-way against him complete (Code, §731), and “steps must he taken to prevent the enjoyment of the way” by the owner, to stop the continuance of the use, or it will ripen into a prescription, though he acquiesce silently or consent openly all the time. Code, §§738, 737; Acts 1872, p. 60.</p> <p>5. Where testimony conflicts, the ordinary settles that conflict, and the court below was right not to disturb his settlement of the issues of fact on such a conflict as this record shows.</p> <p>Judgment affirmed.</p>

<p>The verdict of guilty in this case t was demanded by the evidence; and in such a case, unless there was a patent error of law, a new trial should not be granted. There was no such, if any error at all, in this case, and construing the clauses of the charge excepted to with the entire charge, there was no error at all. 61 Ga., 379; 71 Id., 164, 167, and citations.</p> <p>Judgment affirmed.</p>

<p>1. The verdict is sustained by the evidence, and is not contrary to law or the charge of the court.</p> <p>2. Proof that a defendant was the proprietress of a tippling-house, and that it was kept open on Sunday, is sufficient to show that she is guilty of the crime of keeping it open, unless she show's by some testimony that she did not know that it was kept open; and a charge to that effect was not erroneous.</p> <p>(a.) The court instructed the jury that they could believe the defendant’s statement in preference to the testimony of witnesses, if they saw fit, and did not charge so as to make the jury exclude the statement from their consideration.</p> <p>3. Although a part taken out of a paragraph of the charge, when standing alone, may appear subject to criticism, yet if, as in this case, when taken in connection with the balance of the paragraph, it is not exceptionable, it will not cause a reversal.</p> <p>4. The entire charge is unexceptionable and gave full benefit of the doctrine of reasonable doubts to the defendant and reiterated that knowledge on her part wras necessary. The evidence was conflicting, and the verdict was sustained thereby.</p> <p>Judgment affirmed.</p>

<p>1. The evidence sustains the verdict.</p> <p>2. There was no such error in the refusals to charge as to require a new trial. In substance, all were given, and the entire charge is as favorable to the plaintiff in error as the law and facts would allow.</p> <p>3. The confessions were made voluntarily, and are corroborated abundantly by the bill of sale, the money and the inconsistency of the statements themselves.</p> <p>Judgment affirmed.</p>

<p>1. Where notes were given for a fount and apparatus for the manufacture of soda-water, the title being retained by the vendor until payment should be made, and with the right in him, in case of non-payment of any note at maturity, to retake immediate possession of the apparatus and remove the same, if, upon a trial of the fount and apparatus by the vendee, they did not come up to the representations and covenants of the vendor, as to their quality and condition, and proved worthless, the vendee had a right to rescind the contract without the consent of the vendor, he being able to restore the vendor to the condition in which he was before the contract was made. Code, §2860.</p> <p>2. The evidence being conflicting, there was no abuse of discretion in refusing a new trial, and this court will not interfere</p> <p>Judgment affirmed.</p>

<p>In the case of Weems, trustee, vs. Coker (70 Ga., 746), it was held that the chancellor, sitting at chambers, might grant to a trustee power, upon a petition regularly presented by all the parties, to encumber a trust estate by the execution of a mortgage, and that this jurisdiction, thus exercised, was as extensive and conclusive upon the rights of parties covered by the decree as it would have been had it been rendered upon a bill filed and a trial had at a regular term of court before the judge and jury. Nothing, however, was decided as to the extent to which this decree encumbered the trust property, or as to the respective rights and estates of the several cestuis que trust under the marriage settlement and tbe deed conveying the property in question. Nor was it determined what parties should have been before the chancellor.</p> <p>(a.) Semble, that the minor daughter of Mr. and Mrs. Weems had a present interest in the trust estate and its preservation for her personal use under the trust deed allowing her father to manage and use the propertjq and apply the income arising therefrom “ to the support, comfort, use and benefit of themselves and family,” of which this minor, upon her birth, became a member; and it she was in existence and not represented by guardian ad litem when the decree was rendered, then her present interest in the property, be it much or little, may not have been bound by the decree entered at chambers upon the application and at the instance of the trustee. How far her enjoyment of this interest depended upon the discretion of her parents and of the trustee, and what effect this may have had upon a failure to represent her by guardian ad litem is not now before the court, and is not decided. 70 Ga., 82.</p> <p>(b.) Whether Miss Ingraham’s interest in this trust property was properly represented before the chancellor when the order to encumber it was made at chambers, has not been decided by this court; and whether she was properly represented in subsequent proceedings, is a point in issue under the present hill, as also is the question whether the decree sought to be reviewed was entered into by consent, and whether the parties consenting had authority so to do. A suit pending for the recovery of property duly prosecuted and not collusive, is notice to a purchaser, so as to affect and bind his interest by the decree. Under the English rule, the pendency of the suit begins from the service of the subpoena, but under our statute, it seems that the suit commences and is pending upon its filing in the proper office and the entry of filing thereon by the clerk. 35 6a., 215; Code, §8333.</p> <p>(c.) No necessity for an injunction appears in this case, and its refusal was not en or.</p> <p>Judgment affirmed.</p>

<p>[Blandíord, J., being disqualified, did not preside in this case.]</p> <p>It furnished no ground for an extraordinary motion for a new trial at a later term of court; that the case was tried near the close of a term, and counsel did not have time to perfect the motion for a new trial, where it appears that, after the trial, the court drew juries and did other things usual at the “heel ” of a term; that the dissatisfied party could have made a motion, and taken an order to perfect it and file a brief of the evidence afterwards, hut that this was neglected without any sufficient excuse therefor, and that nothing was done until the next term of court.</p> <p>Judgment affirmed.</p>

<p>1. If the defendant removed the furniture (for the destruction of which suit was brought to recover damages) from the house where it was left, and where the plaintiff had a right to leave it, without authority from her and at his own risk, he thereby became liable for any injury done to it while it was being removed from one place to another, or while it was in his custody at the place where it was officiously moved by him without the owner’s consent previously obtained. He is liable for damages resulting from suth an act, whether he exercised care in the removal of the furniture or not. 2 Bouv. L. Die., 186; Story Bailments, §§189, 190; 40 Ga., 94.</p> <p>(a.) The jury had the right to believe the plaintiff and her witness, andif they did so, there was sufficient evidence to authorize a verdict.</p> <p>2. There being no exception to any ruling or cnarge o£ the court, the verdict being authorized by the evidence, and the court below being satisfied therewith, this court will not interfere.</p> <p>Judgment affirmed.</p>

<p>1. If not absolutely required by the evidence, this verdict is in accordance with its decided weight.</p> <p>2. There wras no error in admitting in evidence the letters mentioned in the third ground of the motion for new trial; the plaintiffs’ counsel, though objecting to them when first offered, whereupon the court ruled them out, did not, when offered a second time under new developments in the progress of the cause, renew the objection, but by his silence, if not by the language he used in relation thereto, acquiesced in, if he did not consent to, their admission.</p> <p>3. There was no error in stopping counsel from commenting before the jury upon evidence that had been rejected upon their motion, and in checking them from drawing inferences from the same prejudicial to their opponents.</p> <p>4. Where, after having fully charged the jury and submitted to them fairly all the law bearing on the issues int he cause, the court, at the request of claimants’ counsel, gave them a further instruction upon a point already covered by the charge, and which, so far as it went, contained nothing objectionable, this, if error at all, might have been corrected on the spot by a request from the plaintiffs’ counsel to make it fuller. He was present, and if he desired more specific instructions, he should have asked ior them ; and as this request would have been nothing more than was already given, it is only just to the court to presume that, had attention been called to the omission, there would have been a ready compliance with the request.</p> <p>(a.) If the entire law claimed to'appl}' to the question had been given in immediate connection with the request, as might have been proper, it does not appear that the result would have been affected in this case.</p> <p>Judgment affirmed.</p>

<p>[Jackson, C. J., not presiding, on account of providential cause.]</p> <p>I. Where there was direct conflict in the testimony upon almost every material issue made by a bill which prayed for an injunction and receiver, this court cannot say that the court below abused his discretion in appointing a receiver; nor does it appear in this case that his discretion was not prudently and cautiously used.</p> <p>3. Where property was involved in litigation, and two or more persons were claiming to have the exclusive right to control and operate it, and where it was in doubt whelher either of them could legitimately control it to the exclusion of the others, and there were encumbrances on it, and the rights of all parties were threatened and could not be fully protected without the appointment,of some person authorized to manage the property, this furnished a proper case for the appointment of a receiver. Code, §§274 and citations, 3149.</p> <p>3. An interlocutory order appointing a receiver is under the control of the chancellor, and if it operates hardly or disastrously to the interests or rights of any of the parties, the chancellor can modify it upon proper application. In advance of such an application, this court will not make a suggestion as to the proper course to be pursued.</p> <p>Judgment affirmed.</p>

<p>The affidavit made in this case for the purpose of dispossessing a tenant holding over after the expiration of his term was in strict accordance with section 4077 of the Code; there were no patent defects in it, and the dismissal, on the ground of patent defects apparent in the face of the paper, was error.</p> <p>Judgment reversed,</p>

<p>[Jackson, C. J., not presiding, on account of providential cause.]</p> <p>Since the constitution of 1877 and the act of 1879 to carry into effect the provisions of the constitution in relation to the uniformity of practice, and also making provision as to the times and places of holding justices’ courts, a justice of the peace in the city of Augusta cannot hold his court and render judgments in civil cases elsewhere than in his own district, notwithstanding the prior local laws of that city. 67 Get., 482.</p> <p>(a.) This does not affect the jurisdiction of any one of those courts over parties residing anywhere in the limits of the city of Augusta. 71 Ga., 244.</p> <p>Judgment reversed.</p>

<p>1. The evidence was conflicting, and there was enough to support the verdict.</p> <p>2. If a pistol he carried concealed hut for a moment, it is a violation of the law. 46 6a., 292.</p> <p>Judgment affirmed.</p>

<p>A bill was filed, claiming that, under a proper construction of a will, the complainant was entitled to the entire estate, as heir of the testator, an intestacy having occurred because of the failure of certain children, which destroyed the basis on which a trust was created by the will; that complainant’s brother-in-law claimed the property under the will as belonging to him, subject only to a charge for her support, and had possessed himself of the property wrongfully under such claim; that he had taken advantage of her distress of body and mind and her inability to support herself except through him, and had extorted from her a settlement, in lieu of all her interest, year’s support, claim of dower and right, to all the property as heir at law. The prayer was for an accounting, etc. The answer denied all allegations of fraud and undue advantage, and set up a release of all interest in the property as being fairly and deliberately executed by her. On demurrer to so much of the billas sought a construction of the will, it was agreed by counsel that if the demurrer should be sustained, the bill should be dismissed with right of exception to the Supreme Court. In this court the case yas dismissed as prematurely brought. 73 Ga., 134. The remitter, as amended, provided that the cause “stand for a hearing in the court below as if never brought here or ruled there on demurrer; that to this end, if stricken, the case be re-instated and tried de novo, and such other action be had as is necessary to effectuate this direction, it having been the true intent and meaning of this court, in the judgmént rendered, simply and solely to decline to rule on the demurrer because it was prematurely brought.” The case was heard again on demurrer, with no amendment, except the striking of certain allegations as to statements made by testator during the last few years of his life. The' demurrer was to so much of said bill as set up complainant’s construction of the will. The judge sustained the demurrer. His order, after reciting the demurrer, proceeded as follows: “It was ordered that the said demurrer be and is hereby sustained, and that the parties proceed to try the issues made by the bill and answer; and thereupon complainant’s counsel having stated in open court that if complainant, on a final construction of said will, was not entitled to the whole estate, they did ndt wish the settlement disturbed, and stated that tbe bill ought to be dismissed. The court thereupon dismissed the bill for want of equity.” A bill of exceptions pendente lite, with an acknowledgment of service thereon, was filed, and also a writ of error t > this court sued out:</p> <p>(&.) There was equity in the bill.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>

<p>Judgment affirmed.</p>