Volume 76 — Georgia Reports

<p>Bankruptcy. Homestead. Constitutional Law. Before Judge Hutchins. Walton Superior Court. February. Term. 1885.</p> <p>A fi. fa. in favor of R. M. Smith- vs. C. H. Shipp was/ levied on certain land, and Shipp interposed a claim, thereto as an exemption set apart to him in bankruptcy.. By agreement, the case was tried by the presiding judge; without a jury, on an agreed statement of facts, in substance, as follows: The debt to Smith was contracted in 1862, reduced to a gold basis February 21,1867, and judgment was obtained thereon in August, 1872. In 1873, the defendant was adj udicated a bankrupt, and afterwards was discharged. The plaintiff never proved his debt in bankruptcy. The land levied on was set apart as a homestead by the ordinary under the constitution of 1868, and after-wards was set apart as an exemption in bankruptcy, as being the homestead allowed by the state constitution of 1868.</p> <p>The presiding judge held the property subject to the fi.fa., and the claimant excepted.</p>

<p>1. The verdict is supported by the evidence.</p> <p>(a ) One of the parties to a contract cannot rescind it without the consent of the other, except for the non-performance of his covenants. In this case, the defendant substantially complied with his contract.</p> <p>2. If it be true that the court omitted to give in charge an appropriate and pertinent principle of law, the party complaining should have called his attention to the omission, and then, if he refused to give it, there would have been ground for alleging error. But such an omission does not appear to have been made, from a consideration of that portion of the charge brought up in the record.</p> <p>3. There is no error specially alleged in the charges excepted to in the fourth and fifth grounds of the motion, and they are unobjectionable.</p>

<p>Equity. Injunction. . Judgments. Laches. Before Judge Willis. Harris County. At Chambers, July 2, 1885</p> <p>Reported in the decision.</p>

Sales. Title. Crops. Before Judge Brown. Cobb Superior Court.

<p>Railroads. Damages. Negligence. Certiorari. Before Judge Cobb. Clarke Superior Court. May Term, 1885.</p> <p>Reported in the decision.</p>

<p>While it might have been a good ground for challenging jurors in a justice’s court, before the jury had been empanelled, that the names of some of the jurors were not on the list of names of jurors furnished by the ]ury commissioners to the clerk of the superior court, yet where no objection was made before the trial, and no ruling was made thereon, it cannot be taken advantage of by cer- ' iiorari after verdict.</p>

<p>Where a burglary has been committed, and a short time thereafter some of the property which was in the house broken open before and at the time of the burglary, is found in the possession of the accused, if the possession of the property is not accounted for, this affords a presumption of. guilt.</p> <p>(a.) There was no error in the charge, and the verdict was sustained by the evidence.</p>

<p>Criminal Law. Larceny. Before Judge Clarke. City Court of Atlanta. March Term, 1885.</p> <p>Reported in the decision</p>

<p>Practice in Supreme Court. Claims, Practice in Superior Court. Before Judge Port. Sumter Superior Court. April Adjourned Term. 1885.</p> <p>Reported in the decision.</p>

New Trial. Practice in Superior Court. Before Judge Roney. Richmond Superior Court. April Term, 1885.

<p>Contracts. Equity. Before Judge 'Fain. Catoosa County. At Chambers. November 23,1885.</p> <p>Reported in the decision.</p>

<p>Forcible Entry and Detainer. Before Judge Kibbee. Pulaski County. At Chambers. February 21, 1885.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors: Sales. Damages. Before Judge Branham. Floyd Superior Court. March Adjourned Term, 1885</p> <p>This case will be found fully reported in It Get., 616. When it again came on for .trial in the superior court, the court charged, in substance, as stated in the second headnote. The jury found for the defendant. The plaintiff moved for a new trial, which was refused, and he excepted.</p>

Criminal Law. Larceny. Charge of Court. Practice in Superior Court. Before Judge Simmons. Bibb Superior Court, April Term, 1885. Charles O’Bannon was indicted for the larceny from the house of a ring belonging to Mrs. Laura P. Holdridge. On the trial, he ivas found guilty. He moved for a new trial on the following grounds: (1), (2.) Because the verdict was contrary to law and evidence.

Attorney and Client. Liens. Executions. Sheriffs. Levy and Sale. Before Judge Kibbee. Laurens Superior Court. January Term, 1885.

Equity. Homestead. Before Judge Brown. Fannin Superior Court. May Term, 1885. Complainants, by their mother, as next friend, filed their bill to recover a homestead alleged to have been set apart to their father and afterwards sold by him.

<p>1. A motion for new trial reaches the errors in the finding of the jury, or such errors of the court as may have led to the finding, but is not the proper method of correcting errors in a decree. Such errors can be reached only by direct exception thereto or by motion to correct them.</p> <p>2. It does not appear that there was any error in the decree m this case.</p> <p>(a.) One who leased homestead property from the head of the family for a term of years, and placed valuable improvements thereon had an insurable interest therein, and having insured the tenements on the property for his own benefit, upon the occurrence of a loss by fire, he alone was entitled to recover therefor.</p> <p>3. Where a case is tried on special issues of fact, the court should only submit to the jury such issues as, when taken in connection with the admitted facts in the pleadings, will enable him to render a full decree in the case. But the submission of improper issues does not bear on the errors assigned in this case.</p>

<p>[Hall, J., not presiding.]</p> <p>Where a defendant was tried on a copy bill of indictment which had been established in lien of the lost original, after conviction, it furnished no ground for a motion to arrest the judgment that the established copy did not have upon it any indorsement of “true bill” or other finding by the grand jury. Such an exception went to the form of the indictment, and did not affect the real merits of the offense charged, and it should have been urged before trial.</p>

<p>1. The charge of the court in this case was unexceptionable.</p> <p>2. Where an attorney brought suit, alleging that the defendants were indebted to him for professional services rendered, and the defendants pleaded the general issue; and further, that plaintiff was employed by their father to render the services charged for, and that he had paid the plaintiff for such services, this was not a plea of payment, but was an amplification of the plea of the general issue, and there was no error in instructing the jury that the burden was on the plaintiff to make out his case by a preponderance of evidence.</p> <p>S. Where complaint was made in a ground of a motion for a new trial, that the court did not construe the written contract between the plaintiff and the father of the defendants, but the record shows that he did construe it, andleft the jury to determine whether the services rendered by the plaintiff and involved in the suit were the same as those contracted for by the father, this was proper.</p> <p>4. The evidence supports the verdict, and there was no error in refusing a new trial.</p> <p>5. Where a motion for new trial was presented and overruled, and. at the same term of court, a similar motion was again presented, the court was right in refusing to entertain it and in dismissing it.</p>

Burden of proof. Practice in Superior Oourt. Notice. Claim. Before Judge Carswell. Jefferson Superior Court. May Term, 1885. A mortgage fi. fa. in favor of William Donovan against J. F. Toole was levied on certain land, to which Sarah A. Doyle interposed a claim. The entry of levy stated that notice had been given to S. A. Doyle, the tenant in possession.

<p>An owner of land was indebted to several persons. One of them agreed with him, that if the debtor would make him a deed to certain land, he would take up the indebtedness and give time to the debtor to repay it, and that he would re-convey the land to the debtor when the latter paid the amount of the indebtedness. The debtor made the deed, but the creditor refused to comply with his part of the bargain. He took possession of the land and held it during the years 1882,1883,1884,1885. In the year 1882, he received only $150 for the land, but it was worth $250 por annum. The creditor testified that he was willing to make a deed if the debtor would pay him fourteen hundred dollars, the amount due. The jui’y found that a title be made upon payment of $470, which was reached by deducting from the total amount due the creditor $250 per annum for the land:</p> <p>Hi Id, that only $150 should have been charged for rent for the year 1882, which would make the sum to be paid, in order to obtain a title, $570. If the defendant in error will amend the decree so os to make that the amount to be paid, the judgment will he affirmed; otherwise it will be reversed.</p> <p>(a.) This case was tried upon the evidence, without reference to the pleadings, and a new trial was asked, upon the ground alone that the verdict was not supported by the evidence.</p>

Claims. Onus Próbandi. Before Judge Carswell. Jefferson Superior Court. May Term, 1885. On November 12, 1883, Cringan, Watkins & Company recovered judgment against L. W. Perdue, and a fi. fa. issued thereon and was levied, on September 1G, 1884, on certain land, to which I. T. Smith, as trustee for Mrs. Annie E. Perdue (the wife of the defendant in fi.fa.), interposed a claim. The evidence is sufficiently stated in the decision.

Title. Trespass. Injunction. Before Judge Willis. Muscogee Superior Court. May Term. 1885. In addition to the facts stated in the decision, it is necessary to add only the following: Complainants claimed the land in dispute as a part of their purchase of sixty-one acres in lot of land number sixty-two.

<p>Continuance. Practice in Superior Court. Witness. Trusts and Trustees. Payment. Fraud. Evidence. Interrogatories. Before Judge Stewart. Monroe Superior .Court. August Term, 1884.</p> <p>Reported in the decision.</p>

<p>1. From the preliminary examination Of the child of six years of age, on whom a rape was alleged to have been committed in this case, it does not appear that she sufficiently understood the obligation of an oath or the punishment the law imposed upon its violation, or that she had the slightest conception of any future, much less of any future punishment for perjury or other bad conduct in this life, so as to have made her a competent witness. Possibly, on a second trial, as she advances in age and moral training, she may, better understand these obligations and penalties, and may become competent.</p> <p>2. The confessions made by the prisoner to Jordan in the presence of his wife were not voluntary confessions, free from fear, and were not admissible. "Where Jordan told the prisoner, that if he did not confess to him, he would have to confess to a justice of the peace, it was equivalent to telling him that, unless he confessed, he would be arrested and taken before a justice of the pea'ce and tried for the offense, and this being done in the presence of the mother of the child charged to have been ravished, and who was accusing the defendant of the crime, such a confession does not appear not to have been induced by the slightest hope of benefit or remotest fear of injury. Code, §3793 Judgment reversed.</p>

<p>1. When the facts are conclusive that the claimant was in possession when the levy was made, his admission that defendant in fi.fa. then had possession, should not work his right to open and conclude the argument. No falsehood should work advantage to any litigant in any court of justice.</p> <p>2. Such admission, thus, made injudiaio, should preclude the Claimant from denying afterwards its truth, but the fact of the possession of defendant after alleged sale to him should stand against him as a badge of fraud.</p> <p>3. The right to open and conclude, especially on the trial and sifting of facts to unravel the subtleties of fraud, is an i mportant legal right, and, if improperly denied, demands the grant of a new trial.</p> <p>4. If there be no witness to a writing, anybody who knows the handwriting of the maker may prove it; especially would it be wrong to require the party to call his adversary to prove his own handwriting, and thus make that adversary his own witness.</p> <p>5. A party may testify to his intention. It is evidence to be considered, but the facts—all the facts—are to be considered, to arrive at the truth respecting his real motive.</p> <p>6. As the case is to be tried over, it is useless to pass on the newly discovered evidence as a ground for new trial.</p> <p>7. Nor would it be fair to pass upon the merits of the great question of fraud or no fraud.</p> <p>8. The motion for a new trial should not have been dismissed. The brief of evidence was approved, subject to corrections, in the time allowed, and filed in time, and afterwards corrected and approved in-full.</p> <p>Judgment reversed on original bill of exceptions and affirmed on cross-bill. (Head-notes by the court.)</p>

<p>1. The evidence abundantly supports the finding that defendant is guilty, and therefore the verdict is not contrary to law.</p> <p>2. The record does not disclose any abuse of the privileges of witnesses in compelling them to answer questions inculpating themselves against their wills, and even if there had been any instances of it in the case of one or two of the numerous witnesses, there is abundant testimony'outside of what they testified to'require • the verdict. Wharton Crim. Law, §§465, 472, 473, 476. ,</p> <p>'3; Reputation of a house being kept andmaintained.as a lewd house is admissible evidence. Wharton’s Orim. Ev., §261; 17 Conn. R., 467. '' ''</p> <p>4. No testimony of consequence running back more than two' years was admitted, and the verdict is- demanded without it. Besides, to show the character long established of such a house, it might well be admitted, the jury in the charge of the court being told not to convict the defendant unless she had kept the house within the two years preceding the accusation.</p> <p>5. Nothing wrong is discovered in ilie charge, as excepted to, when the whole'is read together, and the exceptions are corrected by reference to the general charge, upon which limitation and condition alone they are certified as true.</p> <p>(Head-notes by the court.)</p>

<p>The statements in this declaration are sufficient, if proved at the trial, to entitle the plaintiff to damages for the alleged injury to his premises by the creation and maintenance of the nuisance complained of, as this court decided in 73 Got., 523. Therefore, it follows that there was error in sustaining the demurrer and dismissing the case.</p> <p>(Head-note by the court.)</p>

<p>1. When a bill for injunction arid receiver is not sufficiently verified by the affidavit thereto, it is right in the chancellor to allow it to be further verified. This may be dono by the counsel, or by the creditors, each verifying his own claims on the debtor, demands for payment, etc. In a word, any person who knows may verify the facts of the bill.</p> <p>2. Whilst in a creditor’s bill under the act of 1881 (.Code, §2159 (a) et seq.), the mere demand and refusal to pay alone do not sufficiently show insolvency, as ruled in G8 Ga., 530, especially when it appears that the debtor has unincumbered property above complaining creditors’ debts, yet in the case at bar the allegation is sufficient to show that insolvency. The allegation is that they ‘ ‘ are insolvent, and that they owe divers other large sums to divers other persons and creditors, aggregating eighteen thousand dollars or other large sum; that they own no real estate; that a large amount of their indebtedness, in the shape of notes and drafts, has gone to protest, and that all of said indebtedness is long past due and unpaid.”</p> <p>(a.) The defendants being insolvent merchants and traders within the meaning of the act of 1881, and refusing to pay their debts on demand, the fact that they owe some creditors on claims not due does not defeat the bill brought by the creditors generally. Want of equity in the bill is not made apparent, and nothing wrong is specified in the filing, service, etc.</p> <p>(Head-notes by the court.</p>

<p>The abandonment of an intention by a lease-holder to stop a railroad company by injunction from appropriating to its use the premises leased, even though the company was in possession, with the corisenjt of the owner of the fee, and was proceeding to have the same condemned, under the provisions of its charter, to its use, the lease-holder being no party to such proceedings, and he, at the time of notifying the attorney of the company of his purpose not to institute a bill on the equity side of the court to obtain an injunction, also informing him that he would resort to an action of law to recover damages for the unwarrantable appropriation of the land, did not, in law and in fact, amount to a consent that the company might enter before ascertaining the value of his property thus appropriated and paying for the use of the same, and did not defeat the lease-holder’s action to recover in that suit damages for the trespass.</p> <p>(a.) There was manifest error in awarding a non-s.uit in this case.</p> <p>(Head-notes by the court.),</p>

<p>By the constitution of 1877 and the acts passed in pursuance thereof, there may be an appeal from the decision of a justice in a justice’s court to a jury therein in all cases within the jurisdiction of that court, to-wit, one hundred dollars, Code, §§5153, 415?}, (a) (b); acts 1882-3, p. 95; 69 Ga., 843; 70 Id., 523, 726.</p> <p>(a.) Semble, that, under the constitution of 1877, the appeal lay as well on the law as on the facts; but it is unnecessary to decide that point in this case, there being issues of fact on this appeal, to-wit, the plea of the géneral issue, as well as the plea in abatement, involving, on the former especially, facts as well as law.</p> <p>(Head-note by tho court.)</p>

<p>1. Where several pleas were filed to an action, and a verdict was found for the defendant “on all the pleas,” this was sufficient without .finding as to each separately ; ■ and if there be sufficient evidence to sustain the finding as to one .of the pleas, the verdict will not be set aside.</p> <p>2. While the evidence was conflicting, yet there was enough to warrant a verdict finding that the first note, in place of which that in suit was given, and on which the maker of the second note was endorser, had been settled, and therefore that there was no consideration to support the second note.</p>

<p>[Jackson!, C. J., not presiding on account of indisposition,1</p> <p>1. Where an indictment was headed “ Georgia Liberty county,” this was sufficient to show for what county the grand jurors were drawn and served, and of what county they were.</p> <p>2. On the trial of the defendant for whipping his wife, she is a competent witness against him. Code, §§3854, sub-sec. 4, 4573.</p>

<p>Although the weight of the evidence may appear to have been against the plaintiff on the subject of notice, and although the value placed on the property in controversy by some of the plaintiff’s witnesses may have been too high, yet, there being gome evidence to support the verdict, and the presiding judge having required a portion of tlie verdict to be written off, and refused a new trial, this court will not interfere with his discretion in so doing.</p>

<p>A traverse of a sheriff’s return made at the first term may be amended at a subsequent term by making the sheriff a party. 59 Gd., 461: 68 let., 215.</p>

<p>Where money lias been raised by virtue of a garnishment, and is in tho hands of a justice of the peace, and the money is due the debtor for his weekly and monthly wages as a laborer, he may claim it by bringing a rule against the justice; and it is not error for the court to award the m oncy to the debtor. The proceeding between the creditor and the garnishee is not res adjudicata so as to bind the debtor, but as to him is res inter alios acta. 71 Ga., 748.</p> <p>(a.) While the proceedings between the debtor and the justice of the peace may have been irregular, yet where no question as to such irregularity was raised in the court below by the officer ruled, the creditor cannot be heard to insist on it in this court.</p>

<p>In the case of Angier et al. vs. The East Tennessee, Virginia and Georgia Eailroad et al., 74 Ga., 634, it was held that that road was a domestic corporation in this state. That ruling controls this case, and it was error to order a removal of the case to the federal court, on the ground of non-residence of the defendant.</p>

<p>Assignments. Debtor and Creditor. Laws. Public Policy. Fraud. Before Judge Stewart. Henry County. At Chambers. December 17,1885.</p> <p>W. W. Turnipseed filed his bill in behalf of himself, and such other creditors as might join with him, against George Schaefer, Harry'Schaefer and J. S. Akers. M. C. and J. F. Kiser & Co., Tolbert, Hoyt & Co., S. M. Price, R. A. Henderson, Mrsi R. A. Henderson, Harralson Bros. & Co. and Kerr & Go., non-preferred creditors, were made parties complainant before the hearing, and amendments to the bill were filed. The substance of the bill and amendments was, in brief, as fqllows :</p> <p>On November 9,1885, George Schaefer was in failing circumstances, and had been so for some time, bu.t possessed of assets worth about $60,000 or $70,000. On that day, he attempted to make an assignment, purporting to be for the benefit of his creditors, to Harry Schaefer and J. S. Akers, as assignees. They accepted the trust, took charge of the property set out in the inventory of assets, and proceeded to dispose of the same, or a portion of them. After this had continued for ten days, the assignor and assignees recognized it as invalid for want of a schedule of creditors, with their residences, amount^ etc., and on November 19,1885,- they voluntarily repudiated it, and George Schaefer made a second assignment to them, giving preferences. to S. M. Inman & Co. and George Ober, Sons & Co., first, and with three classes of preferred and one of non-preferred creditors.</p> <p>The two assignments were exhibited to the bill. The first was dated November 9,1885, and purported to convey all of the assignor’s property to the assignees, with certain preferences, Inman & Co. and George Ober, Sons & Co. being the first preferred creditors. This deed had no schedule of creditors attached. It stated in the latter part of it that the assignor appointed the assignees “ his true and lawful attorneys, in fact, irrevocable,” etc.</p> <p>The second assignment was dated November 19,1885. It recited that, whereas, the assignor attempted to make an assignment on November 9, but neither he nor his attorney was aware of the passage of the act of 1885, requiring a schedule of creditors, and attached none; “ and whereas, some of the creditors of the party of the first part dissent to the assignment, and insist that the same is void for the want of said sworn- schedule ; and whereas, regarding the said assignment as void, and as the said parties of the second part have, for said reason, relinquished all their rights, titles and interest in the same to me,” he thereupon reassigned.</p> <p>This assignment of November 19 was to the same assignees as the former.</p> <p>There were three classes of preferences, viz.: First,</p> <p>S. M. Inman & Co............................................ $45,726 14</p> <p>Attorney’s fee for assignment............................ 1,000 00</p> <p>Ober, Sons & Co.............................................. 15,000 00</p> <p>Second. Certain guano companies and one Pullen.</p> <p>Third. Five other creditors; and fourth, general unpreferred creditors.</p> <p>This assignment contained the following clauses:</p> <p>“The intention of the said party of the first part, in making this conveyance, is to trajjgfer all of his property and effects of every kind and description, and'everything in which he has any right, title, interest in or claim to; and if anything has been left out of schedules ‘ A ’ and ‘ C ’ hereto attached, such omission has been made inadvertently, and without any intention on the part of the said George Schaefer; and if anything has been so omitted from said schedule, the parties of the second part are hereby directed and required to take as full and complete possession and control of any such property as if the same was regularly set out and described in this conveyance'; if any creditor has been inadvertently omitted from the schedule of creditors, marked schedule ‘ D,’ hereto attached, they are likewise instructed to pay such creditor, or creditors, upon proper and satisfactory proof of his or their claim, as if the same were regularly scheduled; provided, the funds in their hands are sufficient for that purpose, but if not sufficient to pay all creditors of the said George Schaefer in full, then such claims are to be paid in the manner that class No. 4 of schedule ‘D’ are directed to be paid.”</p> <p>The guano notes and stock on hand were declared to belong to the grnano companies respectively, as security, until their claims should be paid in full; and if any balance remained, it should return to the assignor’s estate; if any deficiency, it should be classed among the unpreferred debts.</p> <p>Attached to the second assignment were what purported to be sworn schedules of assets and creditors.</p> <p>The bill alleges that both assignments are void, and especially attacks the second—that made November 19th, 1885. The points made were, in brief, as follows:</p> <p>(1.) The entire transaction was fraudulent. The inventory of assets attached to the first assignment stated certain values on the assets, pretending to show that the assignor had assets worth $185,000; and he pretended that he was possessed of that amount of assets, and that his debts were only $135,000, and thus sought to mislead his creditors, and did mislead and lull them into security, making them believe that there was enough to pay all creditors, while at the same time he was confederating with his assignees to place the property beyond the reach of legal process by his creditors. The values so stated were false and fraudulent^ the real value of the estate being only $60,000 or $70,000, while the liabilities were largely in excess of the amount stated in either assignment. The assets are put in the second assignment at about $129,000. Since the second assignment, George Schaefer and his assignees have continued these representations, and have pretended to complainants and others that the assets' were sufficient to pay all the debts, and that it was to their interest to remain quiet and take no steps to enforce their claims, as they would much sooner get their money. In fact, at this very time,.Schaefer and his assignees were colluding, and were proceeding to sell the property in haste and at small prices, and were seeking to place the proceeds beyond the reach of complainants and other creditors.</p> <p>(2.) The assignor did not attach to either deed Of assignment a true and correct statement of his assets, but left out valuable' assets owned by him, including notes, accounts, cotton, money, his interests in certain firms, etc., worth several thousand dollars. It was alleged, by amendment, that' the assignor and assignees acted so in concert, and colluded and confederated together s'o constantly, that it was difficult to obtain definite information on this or other subject's; but a number of items were specified, and others were alleged- to exist.</p> <p>(3.) The assignor did not attach to either deed of assignment at the time-of executing it a-full and complete inventory and schedule of all his debts, sworn to by him. He omitted and left out large debts and fraudulently stated the amounts due the preferred creditors at incorrect amounts.</p> <p>By amendment, the following omissions of creditors were specially charged, and others were alleged to exist:</p> <p>S. B. Kimball...................................................... $384 00</p> <p>W. W. Turnipseed............................................... 400 00</p> <p>Harralson Bros. & Co........................................... 100 00</p> <p>J. A. C. Wynn.................................................. 71 82</p> <p>Mrs. B. A. Henderson.......................................... 300 00</p> <p>B. A. Henderson............;............................... 81 43</p> <p>Claims of Hammond, Hull & Company, of Baldwin & Company, and others, are untruly stated.</p> <p>(4.) Preference is given to debts of Edward Schaefer and Schaefer & Company, instead of to the assignor’s own debts, which is in fraud of his creditors.</p> <p>(5.) Both assignments are void because made so as to reserve a benefit to the assignor; and though this may have been concealed under the language of the deed, it was, in fact, so intended, and the assignor and assignees were proceeding for that purpose.</p> <p>(6.) The second assignment was void because the assignor and assignees could not voluntarily set aside the first, after accepting and acting under'it.,</p> <p>(7.) The’ assignor fraudulently left out of his assignment certain creditors, and he and the assignees had paid some of them, to conceal the omissions-and defects in the assignment,-and in fraud of creditors.</p> <p>(8.) The assignment seeks to hinder, delay and defeat complainants and other creditors, and such is its purpose and effect.</p> <p>Insolvency of the assignor and assignees was charged; that one of the assignees was the brother and ex-clerk of the assignor, and the son-in-law of a large preferred creditor ; and the- other was a confidential clerk of the largest preferred creditors; and it was charged that the debts of these creditors were not truly stated. The assignor and assignees are charged to have colluded throughout, and that the assignor was allowed to remain in possession of real and personal property, and Use the same for his own benefit. Discovery was waived.</p> <p>The prayers were for injunction and receiver, to set aside the assignments, to subject the assets to claims of creditors, for subpoena and general relief.</p> <p>Restraining order was granted December 2, and assignees made quasi receivers.</p> <p>The answers presented, in brief, the following, defences to the points made:</p> <p>Admit the making of the first assignment, its setting aside, and the making of the second assignment. Deny all fraud or collusion, and say the assignees had only sold a small amount of goods when the second assignment was made; that “ the creditors of this defendant, except those in the first preference under that assignment, declared that they would not be bound by it; that it was null and void, because it did not meet the requirements of the statute in the particular mentionedthat no creditor had accepted or recognized the first assignment as binding, except those in the first preference, and they consented to the relinquishment and re-assignment; that he did not know, when he made the second assignment, that the first would be attacked, because he himself regarded it as void and not passing title, and was advised by his attorney that he could make a second assignment. The assignor says that he placed on his real estate a value of fifty, to eighty-five Cents on the dollar of what it cost him; on his merchandise an inventory of the cost price; on his personal property what he thought a low valuation, and on his notes, accounts, etc., no valuation except their nominal value. ITe stated to some of complainants and others that he did not desire to be sued; that if he could keep his health, he would get on his feet again financially and pay his entire indebtedness ; and that, if he could keep his health and manage his business, he believed he could make the assets pay all of the indebtedness; but these things were honestly done, and without intention to deceive creditors. He further states that he labored earnestly and faithfully to obtain a full list of his creditors and a full and complete statement of his assets, but that, in spite of his efforts, he omitted both assets and the names of creditors. (The assets and creditors admitted to have been left out will be stated in the evidence ) Some of these were discovered since the assignment by the assignor, and some he forgot to put in. “ This defendant here solemnly states that the failure to insert the aforesaid assets and the aforesaid names of creditors was an oversight and omission on his part; that the existence of the omitted assets and omitted indebtedness entirely escaped him at the time he made his said assignment. All fraudulent reservation or concealment is denied. He had not a pound of CQtton or a dollar of money at the time of either assignment. The interest in firms charged to have been owned by defendant had been settled long before the assignment. The note of Edward Schaefer was endorsed by the assignor, rendering him liable thereon. The note of Schaefer & Company was endorsed by the assignor, and given to Inman & Company for money loaned to him for said firm of Schaefer & Company. All reservation for the benefit of the assignor is denied. The assignor denied paying any debts since the assignment. Admits the relationship, of Harry Schaefer to the assignor and of Akers to the leading preferred creditors, but says they were selected on account of their competency and familiarity with the business. He believes the alleged indebtedness to Inman & Company, the first preferred creditors, is correct, and the debt due Gill, a second preferred creditor, and father-in-law of Harry Schaefer, amounts to $6,800, instead of $6,200, as set out in the assignment. The first preferences are to S. M. Inman & Company, of Atlanta, and G. Ober, Sons & Company, of Baltimore. Both had befriended him, and each had liens on most of his real estate, and he felt an obligation on him to prefer them. Assignor’s health failed, and he was obliged to assign; and under the management of the assignees, the assets may not pay more than sixty cents on the dollar. The assignees deny allowing the assignor to reserve any benefit to himself, and say they have taken charge of all the assets and have recognized all creditors, so far as came to their knowledge, whether included in the schedules or not. They deny insolvency, and make the same statement as to their selection as that made by the assignor. In respect to the dealings between the assignor and one Edwards, charged in an amendment to the bill, the assignor says he had dealings with Ei. wards, but he was acting as the agent of W. M. & R. J. Lowry for the lending of money. The defendants deny that the assignor has control or management of the assets since the assignment, but say that he is allowed to occupy the dwelling-house ás a tenant, subject to be sold at any time. The assignor says that the household and kitchen furniture, phaeton, buggy, horses and cow, not put in the inventory, belonged to his wife. He says that the amounts of the accounts of Baldwin & Company and Hammond, Hull & Company were put in the schedules as stated by them. Defendants state also that Kimball, Wynn and Smith (creditors charged to have been paid since the assignment) were not paid from the assets of the assignor, but by S. M. Inman & Company; that cotton bought by Schaefer of those creditors had been shipped, before the assignment, by him to Inman & Company, and they had charged up the cotton on his account; that the cotton was bought by him for cash, but he had not paid for(it; and that, since the assignment, Inman & Company have, through Harry Schaefer, one of the assignees, paid those parties. The assignor denied owing Henderson or Mrs. Henderson.</p> <p>On the hearing, on December 17th, numerous affidavits were introduced by both sides. So far as material, the evidence for the complainants showed, in brief, as follows:</p> <p>George Schaefer was in failing circumstances some time before the 9th November, 1885, and for several days prior to that time was having an inventory prepared with a view to the assignment. While this was being done, and he was insolvent, he borrowed, through his clerk, five hundred dollars from one of the complainants, in order to pay for some cotton, the clerk saying that complainant could get his money at any time he called for it. The first assignment was on Monday. Up to and during Saturday night, large quantities of cotton were shipped away from the assignor’s place of business, and on Sunday, Harry Schaefer carried away with him to McDonough a large sum of money. Since the assignment, George Schaefer has frequently promised Price to pay him, and when Smith was settled with, George Schaefer told Price that he would pay him next. The day after the assignment, the books of the assignor showed $800 on hand. While the schedules were being made out, Combs, who was a clerk assisting in the work with Harry Schaefer and another clerk named Shell, and whom Schaefer owed for services, made inquiries as to what it was for, and Shell replied that Harry Schaefer was going to take an interest as partner with his brother. Since the assignment, Combs has been paid, his debt not being enumerated in the schedule. One car-load of cotton was shipped away after the .first assignment. The first assignment placed assets at about $185,000, and Schaefer, the assignor, told Turnipseed and others that he would pay their accounts, and told Turnipseed to keep quiet and not to be uneasy, and assured him.that his account should be paid. Turnipseed waited several days, and then learned of the making of the second assignment. His name was not put in as a creditor, and he again sought payment of all or a part of his claim from George Schaefer, who again made him promises, but not having been paid, he filed this bill. On November 19, the assignees relinquished their rights under the first assignment, and at the same time received the second. The first assignment had been partially recorded in the clerk’s office, when it was withdrawn from the clerk’s possession by the assignees, and the inventory accompanying it was altered and changed and utilized in making up the second assignment. In neither assignment does the assignor include a cent of money or a pound of cotton, though he was doing a cotton business at three different points. The assets were estimated in the second assignment at $129,000. The entire assets of the assignor were returned by him for taxation, in 1885, at $31,350. One item, namely, city property, put in the schedule as worth $24,000, was returned for taxation at $8,000. In his sworn tax return, George Schaefer also had an item of $500 for household and kitchen furniture not put in the assignment; also an item of $800 for horses, mules, etc. The assignees have' sent a printed dun to G. W. Bryan, though no claim against him is stated in the inventory. A note made by a Mrs. Waldon to George Schaefer for $100 was omitted from the inventory. From the second assignment and schedules the following creditors were entirely omitted:</p> <p>S. B. ICimball..................................................... $384 50</p> <p>W. W. Turnipseed............................................... 400 00</p> <p>Harralson Bros. & Co.......................................... 100 00</p> <p>J. A. C. Wynn..................................................... 71 82</p> <p>R. A. Henderson.................................................. 818 43</p> <p>Mrs. R. A. Henderson.......................................... 307 17</p> <p>$2,081 92</p> <p>Kimball’s claim was partly composed of $82.50, borrowed on November 9, the date of the first assignment. Since the assignment, he has been settled with in full. Wynn testified that he was paid off by Harry Schaefer after the assignment, his debt being in the shape of a due-bill, and that Harry Schaefer exhibited much anxiety about the matter.</p> <p>Notes for $2,120.55 were given by Schaefer to M. C. & J. F. Kiser & Co. (complainants) on the day on' which he made the first assignment.</p> <p>A -witness, Battey, testified that the amount due Hammond, Hull & Co. was not correctly stated in the assignment, nor was it in accordance with their bill made out against Schaefer; and that it is not true that he, representing that firm, had anything to do with the making of the assignment ; that the assignor admitted to him having used money collected for Hammond, Hull & Co.; that he also stated that Inman & Co. were too grasping, and were trying to get the entire assets; also, that Harry Schaefer was his (George Schaefer’s) “mouth-piece;” and that Akers was Inman & Co.’s “mouth-piece;” and that the former would follow his views in reference to the guano men.</p> <p>The first preferences, stated in the assignment of November 19, are:</p> <p>S. M. Inman & Co...................... .1................... $45,728 14</p> <p>Attorney’s fee for drawing' assignment............... 1,000 00</p> <p>Ober, Sons & Co., principal............................... 15,000 00</p> <p>The actual value of the entire estate is not above about $60,000, and debts much more than that sum.</p> <p>Each of complainants introduced proof of his claim, either by promissory note or sworn account.</p> <p>The evidence for defendants was, in brief, as follows:</p> <p>An instrument executed on December 15, 1885 (sometime after the bill was brought, and after temporary restraining orders, etc., had been granted), by George Schaefer, in which he set out that in his assignment of November 19, he had honestly' endeavored to make complete schedules of assets and creditors, but that, on account of the complicated nature of his business, the number of items of assets and the number of creditors, he had “ inadvertently and accidentally, and without any intention whatever to do so,” omitted certain creditors and assets. He then stated that he did therefore “ amend and supplement the same ” by adding assets and creditors omitted, as follows:</p> <p>Assets admitted to have been omitted:</p> <p>192 sacks salt, invoiced.......................................$147 84</p> <p>Note on J. AV. AVelch............................................ 300 00</p> <p>Notes and accounts in hands of Tye, attorney, for collection. (Cannot give particulars be- )</p> <p>cause not known, and cannot get information '</p> <p>from attorney; not considered of much value.)</p> <p>AVhatever interest'assignor has in bill of sale from E. E. James to him for........................................ $800 00</p> <p>(Assignor says he endorsed notes of James to-Crawford for $800, and took bill of sale to hold him harmless ; is informed that a considerable portion of the debt is paid, but does not know how much.)</p> <p>Suit pending in Henry superior court in name of George Schaefer against E. A. Henderson for... $1,050 00</p> <p>Total...................................................-............ 2,297 84</p> <p>(While in assignor’s name, he says this suit really belongs to a Mrs. Barker, of Baltimore, and I forgot to place it in his schedule and make the statement of its ownership.”)</p> <p>(The salt is alleged to have been sold, and the proceed to be in hands of assignees.)</p> <p>Creditors admitted to nave been omitted:</p> <p>Holston Salt and Plaster Company, Saltville, Ya........,......$ 147 84</p> <p>,W. W. Turnipseed, Hampton, Ga...................................... 372 27</p> <p>(“ I do not admit the correctness of this ámount, but he claims an.account against me of $399.02, and I have paid him on his account $126.75, and if his account is correct, this will leave a balance due by me to him as above stated.”)</p> <p>J. A. Crawford, Atlanta, Ga., about................................... 800 OjO</p> <p>(Same explanation as above made as to bill of sale.)</p> <p>Rent of R. A. Henderson’s, interest in warehouse at Hampton, Ga., $100 per annum. (This was to be credited on the claim of Mrs. Barker.)</p> <p>Assignor endorsed note of Buford and Patterson to Griffin Banking Co. for $500. (To secure himself against loss, and also to secure $800 due him by Buford, took a deed to lands, described in schedule)..................................................... 50000</p> <p>$1,720 11</p> <p>“ The foregoing omissions were the result of oversight, and were not made with the view of secreting any property or of defeating any creditors.” . Has notified the assignees of omissions.—This paper is sWorn to contain all omissions “ so far as he knows.” If was never attached to the assignment nor recorded.</p> <p>A number of affidavits were introduced, in brief, as follows:</p> <p>Assignor states that the household furniture, etc., belonged to his wife, and had so belonged for several years, but were returned by him for.taxation, as had been his habit. He returned his property for taxes at a lotv valuation, as everybody else does. He knows nothing of the •borrowing of the money from Price, though his clerk, who did so, had authority to conduct the business. When he learned of it, he placed Price in his schedule as a creditor. He had nothing to do with the paying of Smith, Wynn, Kimball or Combs; did not borrow money from Kimball or Wynn, but was informed by his clerk that the indebtedness was for cotton bought of them; denies indebtedness to Mr. or Mrs. R. A. Henderson; denies shipping cotton secretly or at night. The cotton that was'shipped was bought with money furnished by S. M. Inman & Co., under contract that he would buy and ship to them. The money taken by Harry Schaefer before the first assignment was paid out on debts. The assignees also stated that the payments made since the assignment were not made with Schaefer’s funds, but with funds received from S. M. Inman & Co., and were made through Harry Schaefer. The debt of Combs, Harry Schaefer stated, he paid with his own funds, in order to get rid of the annoyance of being frequently dunned.</p> <p>[In response to this, complainants introduced Harry Schaefer’s tax returns, showing that he only returned $300 worth of property.]</p> <p>The Walden note never belonged to George Schaefer, but to Harry Schaefer; though made in the name of the former, it was given for a horse which belonged to the latter. Bryan had been settled with before the second assignment, and the dun sent him was a mistake. Harry Schaefer denies exhibiting any anxiety about the settlement with Wynn. The Harralson note was one of those signed by George Schaefer with James, and he did not know that it was held by them before the assignment.. Mrs. Schaefer also made aifidavit to owning the furniture.</p> <p>Counsel stated that when the first assignment came to them from the clerk, the schedules were detached; that two classes of preferred creditors were consolidated, and certain changes made in the statement of assets, and the schedules were used in making up the second assignment.</p> <p>The assignees stated that they had control of the property. Inman & Company testified that the debt to them was correctly stated, and that no interest or benefit was reserved by the assignor that they knew of. So also stated Gill, except that his debt is put at $600 too little. Ober stated that he knew of no reservation of interest or benefit to the assignor; that he was present when the second assignment was signed, and all was fair and Iona fide, so far as he knows. George Schaefer states that the business at two of his stores—at Locust Grove and McDonough—was conducted by his clerks, and he has no personal knowledge concerning it. Denies statements testified to by Battey as to the assignees being mere mouth-pieces.</p> <p>The assignment of November 19, 1885, was introduced. It recited that the first had been abandoned and relinquished on account of the want of schedules, and assigned the assignor’s property to the same assignees for creditors.</p> <p>There were affidavits as to the character and business standing of Akers, and that he was worth tén or fifteen thousand dollars.</p> <p>Other points in dispute need not be set out in detail.</p> <p>The chancellor rendered the following decision:</p> <p>After hearing bill, answer, affidavits and arguments of counsel, it is the order and judgment of the court:</p> <p>“ First. That the assignment made by George Schaefer on the 9th of November, 1885, was void.</p> <p>“ Second. That the assignment made on the 19th of November, 1885, by the said George Schaefer transferred the title of his property to the assignees for the uses and purposes therein set forth.</p> <p>“ Third. It is the opinion of the court that, under the evidence in the case, the. said George Schaefer used ordinary diligence in endeavoring to return a correct list of his creditors and a correct schedule of his property; and, in the opinion of the court, a substantial compliance with the statute touching this matter is all that is required; and in the absence of fraud, an assignment ought not to be held invalid if a small number of creditors or inconsiderable amount of property should inadvertently be omitted by one making an assignment; therefore prayer for injunction and receiver refused.”</p> <p>Fourth. Required the assignees to give bond to carry out the trust imposed by the assignment.</p> <p>Complainants excepted and assigned the following errors:</p> <p>(1.) In holding that the first assignment could be voluntarily abandoned and a second made.</p> <p>■ (2.) In holding the second assignment valid, and that it transferred title to the assignees. •</p> <p>(3.) In ruling and deciding that the assignor used ordinary diligence in endeavoring to return a correct schedule.</p> <p>(4.) In ruling that a substantial compliance with the assignment acts in respect to the schedules is all that is required, and that small, inadvertent omissions of assets or creditors would not invalidate the assignment.</p> <p>(5.) In refusing an injunction and receiver.</p> <p>(6.) In continuing the assignees in office.</p>

Debtor and Creditor. Assignments. Laws. Construction of Statutes. Injunction. Receiver. Before Judge Hammond. Fulton Superior Court. Held: and thereat the following subscriptions were had: Elias Haiman $115,000 S. Landauer... , 15,000' •.C. Beerman... 5.000 L. DeGive...... 5.000 J. Spiro......... 5.000 . ' D. Keller....... 5.000 $150,000 On.May 30th, said stockholders elected said Haiman, Landauer, Beerman, DeGive and Keller directors, who elected Haiman, president,…

• Debtor and Creditor. Assignments. Laws. Construction of Statutes. Before J udge Harden. City Court of Savannah. July Term, 1885. A fi.fa. in favor of S. T. & E. J. Knapp against James G. Watts was levied on a stock of goods, and a claim was interposed by F. F. Watts. By agreement, the property was sold and the fund was brought before the court for distribution, and the case was left to his determination without a jury.

<p>1, A mortgage, if valid at the place where executed, is valid every- . where; and amortgagee of personalty in another state may follow it into this state and foreclose the mortgage in the county where it may be found.</p> <p>2. Where a mortgage on personal property was regularly made and recorded in another state, and the property having been brought into this state, the mortgagee followed it and foreclosed his mortgage in the county where the property was found, and caused it to be levied, which was done before the expiration of the time allowed for the registry of such a mortgage in this state, the foreclosure was valid as against a bona fide purchaser of the property without notice of the encumbrance, although the mortgage was not recorded in this state until after its foreclosure.</p> <p>[a.] This case differs from those of Douglass vs. McOracJein, 52 Oa., 596,' and Richards & Bro. vs. Myers & Marcus, 63 Id., 762.</p>

<p>[Jackson, C. J., being disqualified, did not preside in tbis ease.]</p> <p>1. In 70 Ga., 817, this court held that an act of the general assembly conferring upon a municipal corporation authority to assess real property, abutting on a street, for improvements made thereon, did not involve the exercise of the taxing power, within the meaning of that term as used in the constitution, and there was a distinction between such assessments and taxation; but the question was not considered whether such assessments, being made and collected for the benefit of the public and as a substitute for other • services required of the citizen to effectuate that particular purpose, were not in the' nature of taxation; nor did this court hold that they were not “ ejusdem generis ” with ordinary taxation.</p> <p>2. No corporation, whether private or public, can exercise any power not expressly conferred or necessarily implied to enable it to carry into effect the purposes for which it was created.</p> <p>(■a.) It can never be presumed that the general assembly intended, by such local acts as that authorizing assessments for the improvement of streets, where they have used no language expressly referring to the matter, to modify, alter or change the general law or the uniform and unvarying practice of the government in relation to that and kindred subjects.</p> <p>3. The policy of this state, as exhibited in its constitution and in the history of its legislation, is to encourage and advance religion and to foster charity, and an act allowing local assessments for street improvements will not be so construed as to violate this declared public policy, or as intending, by general expressions, to impose burdens upon religious or charitable institutions.</p> <p>(a.) The constitutional inhibition against taking any money from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religionists, or any sectarian institution, does not conflict with the declaration of a public policy generally encouraging or advancing religion or charity , nor with the power granted to the legislature to encourage religious instruction, by exempting from taxation for the support of the state government places of religious worship.</p> <p>(6.) It is dangerous to imply a legislative intent contrary to previous legislation from doubtful expressions which may admit of different interpretations.</p> <p>4 It was not the intention of the legislature, in passing the act of September 3,1881 (acts 1880-81, pp. 358-365.), to make either public property or property held exclusively for the purposes of religious worship, orany other property named in §§798, 5182 of the Code, subject to the provisions of that act.</p> <p>(a.) The trustees of the First Methodist Episcopal Church, South, of Atlanta could not create any lien, by their.*cts, upon the property they held in trust, without express authority to do so.</p>

<p>1. Tho justice of this case, under the law applied to the facts, has not been reached, and the several exceptions and assignments of error are sufficiently specified to authorize a ruling on the vital point involved, though no motion for a new trial was made.</p> <p>2. Where a sum of money was placed in the hands of the defendant by the plaintiff to loan out for her, and he so loaned it, or made use of it himself, and the rate of interest agreed upon and calculated between the parties was twelve per cent per annum up to a certain time and eight per cent thereafter, and an account stated' was made between the parties showing such rates, in a suit for the balance due, in the absence of any plea of usury, the calculation should have been made from the date of the account stated, as fixing the true indebtedness; and it was error for the court to direct a verdict based upon a calculation at the rate of seven per cent per annum from the time the fund was received^</p> <p>(a.) If any clear and palpable mistake had been made in the account as stated, or there had been any omission of items clearly and satisfactorily proved, to the same extent and with the same certainty that courts of equity require in order to correc t mistakes, then such mistake or omission could be corrected at law in this state; but in the absence of pleadings to that effect and of clear proof before the auditor of such mistake, or before the jury on exceptions to the auditor’s report, the account stated must stand.</p>

<p>Evidence. Railroads. Damages. Negligence. Verdict. Before Judge Harden. City Court of Savannah. July Term, 1885.</p> <p>Reported in the decision.</p>

<p>[These cases wore argued' at the last tertot, and the decision resorved.]</p> <p>1. If drafts were accepted and delivered on Sunday, they were void between the parties, but if they were falsely dated as of another day, and came into the hands of an- innocent holder, who took them for valúe without notice, and in the due course of trade, the acceptor was estopped from setting up that defence in a suit against him by such holder. But if the contract of purchase was ■on Sunday, then it was not in the due course of trade, and the holder would not be protected.</p> <p>(a1.) The acceptances sued on in this case were dated on Saturday, and the evidence in this record fails to show either that the holder was present at their execution, or that he knew they were executed on Sunday, or that they assigned to him and . that he became their owner on that day,</p> <p>(&,) The charge contained in the fourth ground of the motion for new “trial was literally correct, as far as it wei}t.</p> <p>(c.) The charge contained in the fifth ground of the motion, while substantially correct, would have been more accurate, after instructing the jury that, if the transfer of the papers sued on was not finally completed on the Sabbath day, but was afterwardaconsummated on another day, then it would, tor all purposes, be valid, and the plaintiff would be entitled to recover, if the court had omitted the latter clause of the charge, namely, “ unless some other good defence was established by the evidence, under the law, as the court will explain.’' In the connection in which it occurred, this charge Was not sufficiently explicit or guarded.</p> <p>2. The evidence in this record fails to show that the defendant paid the firm from whom he bought goods, or their assignees in bankruptcy, or the holder of the draft, for the goods purchasvd, and for which the acceptances sued on- were made.</p> <p>(o.) it appears that tfie assignees, under an order of the court, had a settlement with the holder of the draft for the effects traced to hie hands, including these papers; that in such settlement he was allowed to retain these papers, and upon accounting for other effects that had come into his hands, to which the assignees were entitled, he was discharged from all suits seeking to render him liable on account of his dealings with the bankrupts, it being provided that he might retain “any collaterals which he might have uncollected, until he collects his full unsettled balance ” due from the bankrupts to him, after satisfying claims that he proved against them in the bankrupt court. It was conceded that neither the holder nor the acceptor could settle with the assignees unless the other settled with them, and it was not denied that the acceptor was cognizant of all that transpired in relation to this settlement, and it does -not appear that he objected or set up any opposition to it until long after its const umatidn:</p> <p>Held, that when this arrangement was completed, the jurisdiction of the bankrupt court over the subject was at an end, and the parties, in relation to the paper, occupied the same position as they would have done had it never been administered or disposed of in that court.</p> <p>(6.) If the jury found that the holder was a bona fide holder of these acceptances, then this law -should have been given them in charge, as applicable to these particular issues, instead of the charge given, as excepted to in the tenth, eleventh and twelfth grounds of the motion for new trial.</p> <p>(c.) It is immaterial what was the motive of the defendant in making tibe arrangement for a settlement of the matters i-n bankruptcy, or what induced him to submit to the'judgmentthen rendered, unless he was misled by the fraudulent representations or practices of a party thereby benefited, or unless he was so situated as that, by the exercise of diligence, he could not have obtained accurate knowledge of the facts which, in its absence, influenced him to act.</p> <p>3. Testimony to the effect that the holder of the paper sued on was the uncle of one of the bankrupt firm from whom he obtained it, was admissible, as tending to show fraud in the dealings between the holder and the firm.</p> <p>4. The allowing of the re-introduction of a witness after both sides had closed their case, and after some argument and the intervention of a night, was a matter of discretion with which this court will not interfere, unless it is made manifest that the party objecting suffered serious detriment therefrom.</p> <p>(a.) The evidence rejected, as complained of in the ninth ground of the motion for a new trial, should have been admitted, both as tending to corroborate a witness for the plaintiff whose testimony had been attacked, and also as bearing upon the question on what day the holder became the owner of the 'acceptances.</p> <p>5. One who is a party to the record, when offered to testify in his own favor with respect to the contract or cause of action in issue or on trial, is incompetent, if the other party thereto is dead.</p> <p>6. The pursuit of one’s ordinary avocations on Sunday is an indictable offence, and a party is not bound to testify to such facts against himself; nor should he'be subjected to injury for availing himself of the privilege of refusing to answer questions which might have a tendency either to criminate him or subject him to penalty.</p> <p>(a.) The other depositions relating to bankruptcy were irrelevant to any issues made by the pleadings as they then stood, and if admissible under any circumstances, their rejection worked no injury, as the date of the dealings in bankruptcy was admitted.</p>

<p>Debtor and Creditor. Levy and Sale. Actions. Principal and Surety. Fraud. Claims. Parties. Before W. K. Moore, Esq., Judge pro kao vice. Gordon Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

Contracts. Railroads. Live-StocK. Evidence. Charge of Court. Before Judge Marshall J. Clarke. City Court of Atlanta. June Term, 1885. Disbrow & Co. brought suit by attachment against the Cincinnati, New Orleans and Texas Pacific Railway Co. for damage to certain live stock shipped over defendant’s road. By amendment, the damages were laid at $2,100.00.

Liquor. Laws. Jurisdiction. Elections. Constitutional Law. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 18S5.

Laws. Constitutional Law. Elections. Liquor. Jurisdiction. Before Judge Clarke. Fulton Superior Court. September Term, 1885/ This case arose under the same election as that stated in the case of Scoville et al. vs. Calhoun, ordinary, next preceding, which see.

<p>Contracts. Insurance. Parent and Child. Equity Before Judge Hammond. Pulton Superior Court. March Term, 1885.</p> <p>Eeported in the decision.</p>

Libel. Parent and Child. Before Judge Clarke. City Court of Atlanta. September Term, 1885. Louise Stewart brought an action for libel against the Swift Specific Company and J. W. Rankin, to recover damages for an article alleged to have been falsely and maliciously published in the “ Atlanta Constitution” and “Atlanta Journal,” two newspapers.

Prescription. Possession., Deeds. Title. Before Judge Branham. Paulding Superior Court. August Adjourned Term, 1885. Held: and prescription was claimed as to the other two also. All of the plaintiffs had been of age for more than seven years, except one. The jury found for the minor plaintiff as to lot number 380, and for the defendants against the other plaintiffs as to it. As to the other lots, the jury found for the plaintiffs.

<p>Criminal Law. Continuance. Before Judge Fort. Schley Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>Receivers. Injunction. Before Judge Willis. Taylor County. At Chambers. February 4, 1886.</p> <p>Reported in the decision.</p>

Promissory Notes. Principal and Surety. Statute of Limitations. Practice in Superior Court. Beforo Judge Willis. Harris Superior Court. October Term, 1885. Ón March 31, 1884, Mrs. S. L. Latham (formerly Kolb) brought her action against P. V. Kolb and T. B. Camp, alleging that they were indebted to her, as bearer, on two promissory notes attached to the declaration.

Judgments. Statute of Limitations. Sheriffs. Illegality. Damages. Before Judge John T. Clarke. Early Superior^Court. October Term, 1885. To the report contained in the decision, it is necessary to add only the grounds of the motion for a new trial, which were as follows: (1.) Because the verdict was contrary to law and evidence.

Deeds. Title. Fraud. Contracts. Verdict. Before Judge J ohn T. Clarke. Terrell Superior Court. November Term, 1885. Jones brought suit against Cox on certain notes given by the latter for the purchase money of land. He also brought ejectment against the same person, who filed a bill in equity against the plaintiff.

<p>Husband and Wife. Debtor and Creditor. Fraud. Claim. Yerdict. Before Marion Bethune, Esq.., Judge pro hao vice. Talbot Superior Court. Seotember Term, 1885.</p> <p>An execution in favor of C. W. & H. B. Kimbrough against J. J. Crawford, based on a judgment rendered September 17,1884, was levied on certain crops of cotton and corn, and a claim was interposed by Mrs. Martha J. Crawford, the wife of the defendant in error. The entry of levy showed that the cotton and corn levied on constituted, the crops growing on the “ Laban Hughes place.”</p> <p>The claimant admitted possession in the defendant and assumed the burden of proof. She and her husband testified, in brief, as follows : The land on which the crops were raised belonged to the claimant. . She bought it in December, 1881, took a deed in her own name and paid for it. Both stated that her money paid for it; that she received a portion of the money from her father’s estate and a portion from her farms. The husband testified that the amount received from her father’s estate a number of years before was $75 or $100; that in 1875, 1S70 or 1S77, she had $100 in gold; that she had purchased some land during the war, but had never sold it, and had not farmed on it for sometime; that $3,500 was paid for the Hughes place ; that he had several places ; that in 1876 or 1877, he sold one place to his son-in-law, and had also sold other places to his sons; that he was considerably indebted when his wife bought the property,; that some of the debts were reduced to judgment in 1882. Both stated that the defendant,cultivated the place with the consentof the claimant for her, without any special contract. He stated that he always returned the property for taxation for her, but did not remember to have returned any property for her before 1881.</p> <p>Other witnesses testified that Hughes moved from the place about the close of 1881 or the beginning of 1882, and that the defendant and claimant had since lived together on the land.</p> <p>The deed from Hughes to the claimant, dated December 3,1881, with the expressed consideration of $3,500, was introduced.</p> <p>The testimony for the plaintiffs inf. fa. was, in brief, as follows °. The defendant, with his family, lived on the land in 1881. He managed the farm. He stated to a witness t hat he bought it; to another witness he remarked in a jocular manner, when he went to pay for the place, that he was afraid of being robbed. The cotton raised the year before the trial was marked with the name of the defendant. The debt to the plaintiffs was contracted in 1883 for supplies to run a farm. One of the plaintiffs testified that the defendant would frequently come in and talk about his crops, and nothing was said about his wife’s having any farm. There were several small places which the defendant had had under his control within the past few years. They are occupied by his children.</p> <p>The jury found the property subject., .The'claimant moved for a new trial, which was refused, and she excepted.</p>

<p>Partnership. Title. Conversion. Notice. Parties. Before Judge Adams. Chatham Superior Court. December Term, 1885.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Indictment. Larceny. Burglary. Before Judge Fain. Gordon Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. The overruling of a demurrer and refusal to’dismiss a case fur-f. . .nishes-no ground .for a motion for a new trial. It is a -piaster for direct exception, hot.for a new trial before a jury.</p> <p>2. Where a demurrer was overruled at one term of court, and a bill' Of exceptions pendente’ lite was filed; Aliff’-at the next term the cáse was tried and a verdict rendered fdr the; plaintiff ,-apd.a new trial was moved for and.denied, and thereupon-exception,tgl^en from, this judgment solely on the ground that the oyerri^lingpf ¿he ' 'demurrer was error,'there was no valid assignment'of érrór'upón -.- .which this cour-t can- act. There must bé sbme legal assignment o£ error on what transpired at the trial term, in order to bring up and assign error upon exceptions pendente lite filed at a previous term.</p>

<p>1. Under the acts of 1873, p. 271, and the acts of 1875, p. 330, which require a person who desires to sell spirituous liquors in Chattahoochee and certain other counties to obtain the consent of two-thirds of the freeholders residing within three miles of the place at which he proposes to do business, and who have so resided for six months prior to the application for license, such consent was a prerequisite to the obtaining of a license, and if a license were granted without a compliance therewith, or upon the consent of less than two-thirds of such freeholders, such license was a mere nullity, and a retailer who continued to sell thereunder did so at his peril.</p> <p>2. It made no difference wheiher or not the ordinary revoked the . license upon discovering that the petition did not contain the requisite number of names of freeholders; but a charge that, if he did so revoke it, and if the defendant did not have the consent of two-thirds of such freeholders, but nevertheless afterwards sold liquor, he would be guilty, did not hurt the defendant.</p>

Railroads. Damages. Negligence. Carriers. Street Railroads. Evidence. Charge of Court. Presumptions. Before Judge Harden. City Court of Savannah. July Term, 1885.

Husband and Wife. Cruelty, Alimony v. Before Judge Stewart. Henry. County. At Chambers.

Interest and Usury. Deeds. Specific Performance. Before J udge Lumpkin. Hancock Superior Court. October Term, 1885.

<p>Where a presentment for vagrancy, found at the March term, 1884, of the superior court, charged that the defendant, “on the 1st of March, 1884, and ob divers other days and times before the finding of the presentment, being able to work and having no property to support him, did wander and stroll about in idleness,” and where the only testimony for the state was by two witnesses that defendant was a licensed preacher, but had no church and no pay except voluntary contributions; that neither knew of his working in the year 1884; that one of them saw him several times in town and the other at his church (both witnesses being preachers), and one of them stated that defendant had been of good standing in the Baptist church:</p> <p>Held, that the evidence was not sufficient to warrant a verdict of' guilty.</p>

<p>Debtor and Creditor. Payment. Before Judge Harris. City Court of Macon. December Term. 1885.</p> <p>Reported in the decision.</p>

New Trial. Waiver. Practice in Superior Court. Practice in Supreme Court. Before Judge Stewart. Rockdale Superior Court. August Term, 1885. E. B. Rosser brought ejectment against John W. Moore to recover 66 acres of iand. The defendant pleaded the general issue, and that he was in possession of only the north half of the land, the balance being in the possession of one F. M. Wilson, who married his brother’s widow. The trial was had at the February term, 1885.

<p>1. An action to recover damages for a personal injury was brought against a railroad company. The plaintiff testified substantially as follows: He was a passenger on defendant’s car. When within three or four hundred yards of the station at which he was to stop, the conductor passed through the car, announced the station, and said to the plaintiff, “I wish I was as near home as you are,” and passed on to the platform of the next car, leaving open the door of the car in which plaintiff was. The train was in motion, running rapidly. The plaintiff followed the conductor/ and when he reached the platform of the car in which he was riding,- he attempted to catch the railing, but was precipitated from the car by its motion, and was badly injured:</p> <p>Held, that a nonsuit was properly granted. The customary announcement of the station which the train was approaching was not negligence; the plaintiff’s injury was caused by his own negligence ; and if the company’s agent was negligent, the plaintiff could have avoided the consequences thereof by the use of ordinary care and diligence.</p> <p>2. There was no error in refusing to allow the plaintiff to prove that the defendant’s master of trains had agreed to pgy all expenses' incurred by the plaintiff on account of his injuries and illness. This agent had no power to bind the company by such a promise, and it was not an admission made by an agent dum fervet opus.</p>

<p>The monthly wages of a locomotive engineer in the employment of a railroad corporation are not subject to the process of garnishment in this state, although his wages exceed the sum of five hundred dollars per annum. Such an employé is a day laborer and not an officer of the corporation.</p>

Ees Adjudicata. Practice in Supreme Court. Equity. Before Judge Hammond. Pulton Superior Court. March Term, 1885. To the report contained in the decision, it is necessary to add only that the dismissal of this case' on exception to the decree will be found reported in 74 Oa., 409.

Assault and Battery. Pleadings. Justification. Reasonable Doubts. Evidence. .Practice in Supreme Court.. Before Judge Estes. Madison Superior Court. September Term, 1885. John H. Bailey brought an áction against John W. Sey- ■ mour to recover damages’ for an assault and battery. The • jury found for the plaintiff $200.00. The defendant moved' for a new trial, which was refused, and he excepted. The > other facts sufficiently appear in the decision.

<p>Contracts. Fraud. Evidence. Charge of Court. Practice in Supreme Court. Nonsuit. Before Judge Fain. Catoosa Superior Court. August Adjourned Term, 1885.</p> <p>The First National Bank of Chattanooga brought an action of complaint against James Massengill on-an open account for money advanced, amounting to $700.00, principal. On the trial, the plaintiff offered in evidence a draft, dated October 19, 18Sl,due twelve days after date, for $700, drawn by the defendant on E. & D. Nepper, of Cincinnati, O., in favor of the plaintiff’s cashier, and endorsed for collection for account of the plaintiff. The defendant objected to this, on the ground that there was no evidence of presentation for acceptance or payment and of notice of dishonor to him, and that the suit was on an open account and not on the draft. The objection was overruled.</p> <p>The plaintiif then read in evidence the interrogatories of its cashier, in substance, as follows: The defendant applied to the plaintiif for a loan of money on October 19, 1881. He had railroad bills of lading covering twelve car-loads of bark consigned to E. & D. Nepper, and proposed to attach them to this draft. He represented that he was authorized to draw this amount as the proceeds of the bark. He said that twelve days were necessary to allow the bark to arrive and be measured by the consignees. On these representations, the draft, with the bills of lading attached, was taken, and $696.51 were advanced to the defendant. The amount never has been repaid. The witness had a conversation with the defendant after-wards, when the defendant was under arrest, on account of this transaction. He did not deny owing the amount advanced. The witness told him that he had seen various letters (which were attached to the interrogatories), and asserted that the defendant had collected for the bark money which belonged to the plaintiif. The defendant neither admitted nor denied these statements, but said the witness had not pursued the proper course to get the money.</p> <p>Attached-to the answers were three letters from the defendant to E. &. D. Nepper. The first was dated October 28,1881, and asked that they would send him New York exchange for as much as they could send on bark which had come to hand, and stated that he would, pay off the draft which he had drawn on them. The second was dated November 9. It acknowledged receipt of New York exchange for $380.24, and asked that all railroad receipts be sent to him. The third was dated January 13, 1882, and contained the following sentences: “I sent you twenty car-loads, and you have rendered statements and sent checks for nineteen car-loads. You are still due me one more. You can send me check for that on N. Y.”</p> <p>These interrogatories were objected to, on the ground that the draft was the contract, and an unconditional implied contract could not be shown by parol, and because the evidence was irrelevant to the case made by the pleadings. The objection was overruled.</p> <p>The plaintiff read in evidence the bills of lading referred to in the interrogatories of the cashier and which were attached thereto; also the following New York exchange, drawn to the order of E. & D. Nepper and endorsed by them to the defendant and by him to others: November 3, 188i, for $380.25 ^November 14, for $110.30; December 3, for $4260.40.</p> <p>The defendant objected to each of these as being irrelevant and incompetent under the pleadings. The objection was overruled.</p> <p>The plaintiff closed. The defendant moved for a non-suit, which was refused.</p> <p>The defendant testified that, at the time of drawing the draft, E. & D. Nepper were indebted to him for other bark shipped to them, besides that included in the bills of lading attached to the draft; and that afterwards he shipped to them other bark, making in all twenty-six car-loads, for which he had received no pay; that the bark included in the bills of lading attached to the draft was worth about $77 per car; that the money which he had received from E. & D. Nepper was for other bark, and that he had never been paid for the twelve car-loads included in the draft. He denied the conversation testified to by the cashier, and stated that he had never had any notice of non-payment, but supposed the draft had been paid, as the drawees had sufficient funds with which to pay it.</p> <p>For the plaintiff, in rebuttal, a witness testified that, at the instance of the cashier of the bank, he told the defendant that he must “ fix up ” the draft, which the latter agreed to do.</p> <p>The defendant requested the court to give various charges, to the effect that if the bill of exchange constituted the contract on which the money was advanced, there could be no recovery on the account, but the proper suit would be on the contract; also that, in order to recover under the bill of exchange, it would be necessary to show presentation, dishonor and notice to the defendant. These requests to charge were refused.</p> <p>The jury found for the plaintiff. The defendant excepted and assigned error on each of the rulings stated above.</p>

<p>Where suit was brought against a married woman on a promissory-note signed by her husband, as her trustee, and on the trial, it appeared that the note was given in settlement of an account made by her, hut it did not appear that she authorized her husband to sign the note, or that the goods were purchased for and on account of her separate estate, and the suit was not based on the account, a nonsuit was properly awarded. There was no liability on her part upon the note per se. It should have been alleged and proved that she authorized her trustee to make the note in settlement of her account, to bind her and her separate estate.</p>

Interest and Usury. Payment. Pleadings. Before Judge Estes. Hall Superior Court. August Term, 1885. On July 29, 1884, DeLaperiere brought - complaint against C. A. Lilly and John E. Lilly on a promissory note, dated November 28,1880, by the defendants to the plaintiff or bearer for $1,120, with interest at eight per cent; from maturity and attorneys’ fees and cost of collection.

Homestead. Tax. Principal and Surety. Officers. County Matters. Before Judge- Carswell. Jefferson Superior Court. September Term, 1885. On December 2, 1884, an execution issued under an order of the commissioners of roads and revenues of Jefferson county, against Weeks and the sureties on his bond as county treasurer, to collect an amount of the funds alleged to be in his hands, and which he faile 1 to pay to his successor at the close of his term of office.

Jurisdiction. Justice Courts. Judgments. Illegality. Before Judge Adams. Chatham Superior Court. December Term, 1885.

<p>Where brokers, on behalf of a firm, ordered certain flour, with the direction to ‘.‘ship, as soon as you can, 45 days’ draft, B. Dub & Co.,” and the flour was sent, and a draft was sent with the bill of lading, and an invoice stating the terms as-forty-five days’ acceptance, the acceptance and return of the draft was a condition precedent to the . passing of title; and where, before so doing, the firm made an assignment, the assignee took no more title than they had, and the vendor could recover the property in an action of trover.</p>

Equity. Decrees. Evidence. Corporations. Nonsuit. Stockholders. Before Judge Lawson. Jasper Superior Court. April Term, 1885. This was an action of complaint in the statutory or short form, brought to the October term, 1875, of Jasper superior court by E. W. Beck,F. D. Dismuke and E. Í?.

Statute of Limitations. Contracts. Consideration. Waiver. Before Judge Clarke. City Court of Atlanta. September Term, 1885.

■ Constables.. Officers. Executions. Levy and Sale. Before Judge Eain. Whitfield Superior Court. October Term, 1885. The Singer Sewing Machine Company ruled a former constable for failing to make the money on a fi.fa. The respondent answered, denying his liability.

<p>Statute of Limitations. Infancy. Guardian and Ward. Auditors. Practice in Supreme Court. Before Judge John T. Clarke. Olay Superior Court. March Term, 1885.</p> <p>Chas. M. Hudnell and Leola Hudnell brought their bill against Richard B. Grimsby on August 14,1883. Chas. M. subsequently dismissed the bill, as to himself, leaving Leola the only complainant. The bill alleged, in brief, as follows: In 1865, Jared Hudnell, the father of complainants, died, leaving a widow and ten children as his heirs at law. The widow only survived him a few weeks. He left a large estate, both of realty and personalty, valued at $25,000, or other large sum, and his debts, if any, were small. In February, 1866, Patrick Hudnell, a brother of complainants, became administrator, converted the estate into money, and had in hand $1,950.00, or other large sum, as the distributive share of each of complainants. On November 5, 1866, Patrick Hudnell became the guardian of the minor children, including complainants. In 1867, as administrator of the estate and guardian of the children, he obtained an order from the superior court to allow him to invest the funds in his hands as guardian in a plantation. At that time, he had in hand $12,050.10, of which three-thirteenths belonged to him and two-thirteenths to each of his wards, which amounted to $1,961.54. He purchased a plantation in Early county, known as the “ Speight place,” with the stock, tools and crops thereon, agreeing to pay therefor $14,000, or other large sum. He had loaned out a large portion of the money belonging to his wards. He paid on the purchase money of the place about $4,000.00. In 1867, he died, and in November, 1S67, defendant, Grimsby, was appointed his administrator, and took possession of the property, collected the notes and converted personalty into money, and from 1867 to 1873, he controlled the plantation and made crops thereon and sold the same, and finally sold all the personalty. He has never accounted to complainants therefor, although payment has been demanded of him by their duly authorized agents. The accounts between the parties are so mixed that a complete legal remedy cannot be had. Discovery was waived, and the prayers were for an accounting as to the personal property, notes and rents, and for subpoena and general relief.</p> <p>The answer was, in brief, as follows :• Denies amounts ólaimed by complainants, and prays strict proof. Says it-may be true that his intestate became administrator of his father, and may have received an amount of money from the estate, and he may have filed the petition and obtained' the order stated in the bill, but denies that he had the amount of cash charged in the bill, or that the interest of complainants was the amount claimed by them. ■ In fact? Ü large part of what Patrick Hudnell had in hand was in notes ($7,979.37). When he purchased the Speight place, he paid some $5,000 in cash, took a deed and gave a mortgage for the balance. For the purpose of protecting any interest his wards might have, he gave bond in the sum of $20,000.00. He farmed in the year 1867 on his own account, contracted, made purchases, etc., in his own name, and not for his wards. After the death of Patrick Hudnell, in 1867, defendant became his administrator and took charge of the property as such. He was induced to. become such at the urgent request of Speight and Holland, who were brothers-in-law of Patrick, and the sureties on his bond as guardian. They represented to him that Speight held the mortgage for purchase money of the place; that he did not wish to foreclose it, but defendant could, as administrator, farm on the place, and pay the debt from the proceeds, and that Speight would make 'advances for that purpose, and thus the place could be saved to the heirs. He acceded to these requests in behalf of .the family, and became administrator, took charge of the property, sold the perishable property, and proceeded to work the place, purchase supplies, etc., and pay the net proceeds on the debt, which was transferred by Speight to Holland. In 1869, defendant first learned that, when the property was paid for and relieved from- the moi’tgage for purchase money, the children would have an interest in it. Guardians were appointed for the children-, D. 0. Adams being appointed guardian for Leola Hudnell. Had defendant stopped paying on the place, it would lrave been sold at forced sale, and would have brought little or nothing. All being represented, it was considered -best for all parties to allow the farm to continue, and Hol: land, who controlled the mortgage, agreed to furnish the minors with board, clothes, etc., and to furnish supplies for the plantation, in order to allow it to be worked, and to save it from being lost Defendant exercised all due care in conducting the farming operations; he acted in good faith, and converted nothing to his own use, except his legal commissions; but the -proceeds were paid out, first, •in paying for supplies, etc.; secondly, for the support, maintenance and education of the children; and thirdly, towards freeing the property from the incumbrance on -it. The plantation was not worth more for rent than i-t actually yielded. In 1872, Holland dmd. His administratrix, in 1873, foreclosed the- mortgage, and the plantation was sold under levy. As- showing the amounts as received from all sources, sales; crops, etc., and. the amounts expended by defendant, he attaches certain annual returns as administrator.</p> <p>He also pleaded the bar of the statute of limitations. • The case was referred to an auditor, who made a report, finding in favor of Leola Hudnell- and against Charles M., on the ground that his action was barred by the statute of limitations. Exceptions were filed to the report. The first twelve were stricken on demurrer. They need not b:e set ,- out in detail. It may be stated that one of them was that , the action should have been against Grimsby in his rep-_ resentat-ive character ■ and not individually. The other three were submitted to the jury and were as follows : 1</p> <p>(13.) Because the auditor erred in his said report in finding for complainant, Leola Hudnell, any part of rent for tlie years Í368,1869,1870,1871,1872 and 1873, as set out in his said, report in the third item thereof; because the same was without evidence to support said finding and decidedly and strongly against the weight of evidence; because the evidence shows that said property, for which rent was charged, was chargeable with just,.valid and outstanding debts against said property; because the evidence in said case shows that said rents were applied to payment of said equitable and outstanding indebtedness; and because the evidence before said auditor and facts in said case show that said rents did not go info the hands of respondent, but to respondent as administrator of estate of Patrick Hudnell, and without notice of any claim thereto on the part of complainant.</p> <p>(14.) Because the auditor erred in his said report in finding for complainant any part of proceeds of sale of any personal property, or conversion of any property, as set in item 4 of his said'report, to the amount of $2,626.56, principal, $3,113.43 interest; because the finding of said amount so due, and complainant’s interest therein was decidedly and strongly against the weight of evidence before said auditor, and contrary to the facts in said case; because the evidence before said auditor and the facts in said case show that the proceeds arising from said property and said amounts so set out were applied to payment of legitimate debts and demands against said sum and property, from which said amounts were deducted; because the evidence does not show how said amounts were arrived at and does not show any interest of complainant in and to said sums. •</p> <p>(15.) Because said auditor erred in his said report in finding for complainant any interest in the mules as set out in 5th item of his said report, and in charging defendant with the value of said six mules, to-wit, $125.00 each, total $750.00, principal, $573.14 interest; because said finding is decidedly and strongly against the weight of evidence; because the evidence in said case shows that the proceeds arising from same went to discharge -a debt with •which said compl¿inant and. said property was chargeable-; and because the1 evidence of Thos'. E' Speight before said auditor showed that said mules were bought by Patrick Hudnell while in life, and paid for by R. B. Grimsby.</p> <p>The jury found in favor of the report, and the defendant excepted.</p>

<p>[This case was argued at the last term, and the decision reserved. ]</p> <p>1. The personal property of a deceased person passes and is to be administered according to the law of his domicile. .</p> <p>(a.) A mortgage on lands in this state, given to secure a debt, does not convey title, but only creates a lien.</p> <p>2. It may be laid down as a general proposition, applicable to the proceedings and judgments of the courts of other states of the union, that they are entitled to have full faith and credit given them in this as well as in every other state. A judgment of another state determining the domicile of a deceased person and probating her will is no exception to the rule; and the issues so passed upon cannot be opened and inquired into again in a proceeding substantially betw.een the same parties and involving the same . issues in the courts of this state.</p> <p>3. Ko general administration upon an estate should have been granted in this state, where there was a will in existence which was after- ‘ wards proved and admitted to record, and if such administration has been granted in this state, and afterwards a will has been established, this would work a revocation, except as to such por- , tions of the estate as had been fully administered prior to the production and probate of the will.</p> <p>, 4. In this case there was no necessity for any one of the limited or partial forms of administration, and the application for general administration having been made and granted pending proceedings • to prove the will in another state, of which the parties at whose instance administration was granted had full knowledge, they being parties to the other proceedings, it is plain that it was thus sought to obviate the force of any judgment which might be rendered in the other state, and prevent its receiving here the full faith and credit to which it was entitled under the constitution and laws of the United States and under the spirit of comity contained in the Code of this state. It was therefore collusive and void.</p> <p>5. Whether certain charitable bequests by which more than one-third of the testatrix’s estate was left to certain charitable, religious and educational institutions, to the exclusion of her children, be void or not, yet as there are other bequests, and the will appoints an executor, the existence of the charitable bequests will not prevent the grant of administration upon the estate under the will.</p> <p>Blandford, J., concurred.</p> <p>Jackson, C. J., dissented.</p>

<p>Auditors. Masters. Evidence. Reasonable Doubt. Charge of Court. Gifts. Admissions. Fraud. Guardian and Ward. Ordinary. Accounts; Practice in Supreme Court. Verdict. Infancy. Amendment. Pleadings. Statute of Limitations. Before Judge Lawson. Greene Superior Court. September Term, 1885.</p> <p>Anna M. Poullain and Hallie B. Poullain (the latter by next friend) filed' their bill for an account and settlement against Thomas N. Poullain.</p> <p>The case was referred to an auditor, who made a report, and bofh parties filed exceptions thereto, but defendant subsequently withdrew his exceptions, and the case was tried on those of the complainants. The bill, answer, and auditor’s report are set out substantially in the report,, when the case was formerly in the Supreme Court. (72 Oa , 412.)</p> <p>The exceptions to the auditor’s report, filed by complainants, were as follows:</p> <p>1st. It is reported in said report that the title to the house and lot in the city of Greensboro, Georgia, was in the defendant until March, 1879, and the defendant did not hold, said property in trust for complainants.—To which complainants except, and allege that only the naked title to the same was in the defendant from -•, 1863, he having held said house and lot from the time last men-, tioned in trust for the complainants.</p> <p>2nd. It is reported in said report that complainants had no title to the real estate in Floyd County, mentioned in the bill, and they cannot recover real estate or the proceeds of the sale of the same, for the reason that the statute of frauds prevents them from asserting title to the same, and the defendant is not estopped from pleading the said statute.—To which complainants except, and allege that they, as against the defendant, do have title to said real estate as set out in their bill, and they can recover either the value of said real estate, or the proceeds of the sale of the same, with interest on either said value, or said proceeds, and the statute of frauds does not protect the defendant from the recovery claimed by complainants.</p> <p>3rd. Because it is reported in said report that the investment made by the defendant, and mentioned in his return of May 24th, 1864, to the ordinary of.county first aforesaid, relieves the defendant of all liability to complainants for the money received by him, as their guardian from the administrator of their father’s estate.—To which complainants except and allege that said investment does not so relieve the defendant.</p> <p>4th. Because it is reported that the discharge of the defendant, as guardian of the complainant, Anna M., is a bar to any right of action which said Anna M. ever had against him as such guardian.,—To which complainants except, and allege that said discharge is not, under the law and the facts, a bar of said right of action.</p> <p>5th. Because it is reported that the complainant, Hallie B., cannot maintain her action against the defendant, she being a minor and he being her guardian.—To which complainant.s except, and allege that said Hallie B. can maintain her action aforesaid against the defendant.</p> <p>6th. Because it is reported the auditor found no evidence to establish the title of complainants to any of the Fontenoy mills property mentioned in the bill, or its dividends.—To which complainants except, and allege that the evidence amply establishes their title to said property and dividends, as claimed in the bill.</p> <p>• 7th. Because it is reported in said report that the evidence does not show the defendant ever gave or intended to give the said real estate in Floyd County to the father of complainants, and that they have no title to the same, nor have they acquired any title to the same by prescription.—■ To which complainants except, and allege that the evidence does show that the defendant gave and intended to give said real estate in Floyd County to their father, as set out in the bill, and complainants have title as against the defendant, both from his gift aforesaid and by prescription to the real estate last aforesaid, and the proceeds of its sale by the defendant, or its real value.</p> <p>8th. Because it is reported in said report that, in a certain event therein stated, the defendant, as guardian and trustee of the complainants, is chargeable with $7,000.07, said sum including, interest to September 15,1880.—To which complainants except, and allege that the defendant is due these complainants, after allowing him all proper credits, at least $10,500.00.</p> <p>9th. Because it is reported in said report that the defendant has expended $8,347.55 for the maintenance and education of complainants, which said expenditures are an equitable set-off against the sums chargeable against the defendant as guardian and trustee.—To which complainants except, and allege that the defendant can show no authority for his encroachment upon the corpus of their property claimed by him in the bill, and he is due them, in any event, the entire amount of said corpus.</p> <p>In said report the auditor allowed to said defendant in-West on the disbursements.—To which allowances these complainants except, and say that the evidence shows the annual interest was more than the annual disbursements, and therefore, under the law, said defendant is not entitled to charge interest on the disbursements.</p> <p>After the return of the case from the Supreme Court to the superior court, complainants amended the fourth exception by charging that the discharge of defendant as guardian of Anna M. Poullain was null and void, because the application was not published once a week for four weeks, and the requirements of the law were not complied with, and Anna M. never had any legal notice and was not cited, as requred by law, by the ordinary to appear at the time the dismission was granted. It was also null and void because it was procured by fraud on the part of the defendant, in that he fraudulently represented to the ordinary that, at the time the dismission was granted, he had fully discharged his duty as guardian of said Anna M., and thereby procured a discharge, when, in truth and fact, the defendant had not fully discharged his duties as guardian, and had only charged himself, as guardian, with a small sum received from the administrator of complainant’s father, which arose from the sale of the personal property of the estate, when he well knew that he was indebted to complainants upon each and every item set out in their bill, and it was his duty to have charged himself with these items, which omissions were fraudulent, and made with intention to defraud complainants of the amounts justly due them, and which he never accounted for.</p> <p>To this amendment defendant demurred on the following- grounds:</p> <p>(1.) Because it embodied a new and distinct cause of action.</p> <p>(2.) Because it was barred by the statute of limitations.</p> <p>(3.) Because the allegations of fraud were not sufficient ' to set aside the judgment granting a discharge.</p> <p>(4.) Because there was no averment in the amendment that the complainant, Anna M. Poullain, was ignorant of the fraud complained of at the time said discharge was granted.</p> <p>This demurrer was overruled.</p> <p>The court sustained the fifth exception to the auditor’s report, it being an exception of law.</p> <p>On the trial, the evidence for the complainants was, in brief, as follows: Defendant was appointed guardian for complainants on May 4, 1 863, and gave bond for $10,000. He made only three returns altogether as follows :</p> <p>On January 4,1864, he returned a single item: “To cash in Confederate treasury notes of William McCollough, administrator of Junius Poullain, $1,600.00.” (Recorded March 24,1861). On May 24, 1861, he made a return containing a single item, stating that he had invested $1,600 00 in Confederate four percent, bonds, and obtained a certificate of the agent of the Confederate States at Augusta, under the act of March 21,1864. (Recorded July 15,1864.) The third return was only as to Anna M. It was sworn to March 3, and recorded at the April term, 1879, of the ordinary’s court, and stated that she was entitled to a half interest in $1,600.00 in Confederate bonds, which was the only property he ever received as the property of his ward, and that he therewith returned to the court the bonds. On March 3, 1879, he applied for dis-mission as guardian of Anna M., alleging that he had fully discharged his duties, and at the April term of court he was dismissed, no objecting having been filed.</p> <p>The ordinary testified that, when defendant made his final return, he saw from it that he had charged himself with only $1,600.00, and defendant stated to him that there were $1,600.00 in Confederate bonds, and witness thought at the time that they were there, and did not discover, until after the dismission was granted, that there were only $1,300.00. There was no fraud or collusion between defendant and the administrator of W. S. Poullain in procuring the discharge, that the witness was aware of.</p> <p>It was admitted that certain eight per cent, bonds were filed with the ordinary when defendant made his application for discharge; that they were not the bonds in which defendant invested the funds of complainants, but that they had on them in defendant’s handwriting the endorsement: “ These bonds belong to the estate of Anna M. and Hallie B. Poullain.”</p> <p>Complainants introduced a letter from defendant to his wife, dated Rome, 29 November, 1856, in which defendant stated that “ I have this day purchased a tract for Junius, thirteen miles from Rome, and eleven miles from Calhoun, on state road.” He then proceeded to describe more in detail the improvements, and stated that the tract contained 865 acres, and that it was desirable and well worth $8,000,</p> <p>Mrs. Anna M. Poullain, the mother of complainants, testified, in brief, as follows: Her husband, Junius Poullain, was a son of the defendant. They moved from Greensboro, Georgia, to Floyd county, Georgia, in 1856. (Defendant bought the place for her husband, and that was the way he came into possession of the farm.)* Junius Poullain worked the place and had full control of it, and received the income. His health was impaired. He died in May, 1863, leaving witness and the two complainants as his only heirs. After the death of her husband, the witness, at the instance of the defendant, moved to Greensboro, to the house furnished by him, and has been living there since. The defendant took possession of the plantation in Floyd County and told her that he would control the place for her and her children, and that it should be the same to them as if he had given it to them by deed; that he simply wanted to manage it for their benefit. In the spring of 1863, he told her that he had sold the place of her husband for $10,000 ; that she and her family had the right to the proceeds of the land; that he did not claim the money for himself, but would take charge of it for the benefit of her and her children. She at first thought of taking out letters of administration on her husband’s estate, but defendant approached her in regard to taking charge of the estate himself, and having confidence in his integrity, she consented, and did not apply for letters. Complainant, Anna M., was born November 4, 1856, and Hallie B., June 28, 1860. Before the death of Junius Poullain, he became dissatisfied with the Floyd County plantation, and defendant advised him to sell and move away. The defendant told the witness a number of times that he had given the Fontenoy property to all of his children, and that she and her children would share it equally with his children. In April, 1865, he told her that he had $40,000 in Confederate money for her and her children, which he would invest for them in Augusta, Ga. Defendant furnished complainants each annually about $20 in money until they. were twelve years old; also furnished them about $15 worth of meat, meal and flour, and the value of the wood furnished for both the complainants was about $15 annually. They all dispute the item in the answer of rent charged for the house in Greensboro, because they consider the house and lot theirs; also the item of $750 claimed by him.</p> <p>The complainants testified, in brief, as follows: The defendant told them a number of times that he realized from the sale of the property in Floyd. County, belonging to their father, the sum of $10,000. About a year before the testimony was taken, defendant told them that the reason why he had not made a deed to them to the house and lot in Greensboro was that he had lately lost property) and that they had to share his misfortunes with him ; that he regretted very much to see their house and lot sold to satisfy judgments against him.' He always led complainants to believe that they were living on the income from the estate of their father, never denying their interest in the proceeds of the sale of the Floyd County place Until ■the beginning of this suit. They have been in possessiqn of ■the house in Greensboro for seventeen'years; never heard .of-any claim for its rent until this suit was begun. They consider it theirs. Besides the property already mentioned, they have nothing more, except 'their interest in the Fontenoy mills property and in the estate of Wm. S. Poullain.</p> <p>John H. Lovejoy testified, in brief, as follows: In December, 1863, he purchased from defendant the plantation in Floyd County, Georgia, on which Junius Poullain .resided before and at the time of his death; paid the defendant $10,000 in Georgia Railroad bank bills. Defendant said that he paid $6,000 for the place in 1856, and that his son had made improvements, such as clearing, building houses, ditching, etc., so as to bring it up to $10,000. Defendant demanded Georgia Railroad bank bills, because, he said, he wanted it as an investment for his son’s wife and children, because he could purchase the Georgia Railroad stock with them better than he could with other money, and that he wanted the railroad stock as a permanent investment for his son’s wife and children. He said he was selling the property as his son’s, and he wanted to make a safe investment for his son’s wife and children.</p> <p>■ Other witnesses-testified that -Junius Poullain cleared land, built fences, repaired the houses, covered some of them, put up gates, etc., on the land.</p> <p>J. M. Storey testified that he heard defendant say, sometime after 1868, that when he owned the Fontenoy mills property, he made money, but that his children were not making money out of it as he had done.</p> <p>W. M. Weaver testified that, sometime before the war, he heard the defendant say, in conversation with W. H. Morgan, that he had purchased a plantation in Floyd county for his son, Junius.</p> <p>C. 0. Norton testified that' defendant came to him and offered to pay him, as administrator of Felix Poullain (another son of defendant), the dividends of the Fontenoy mills property belonging to the estate of Felix, but that he refused to receive them, as he considered that they, belonged to the children of Felix. Antoiiie and Thomas Poullain. were in possession of the property, managing it for the children and grandchildren of the defendant, from' sometime during the war until its sale in 1875.</p> <p>Mrs. Henry Moore testified, in brief, as follows : The defendant is her father. She has frequently heard him speak of the place in Floyd County, on which Junius Poullain had lived, as the property of Junius Poullain. Heard him say that if Junius, Poullain did not like the Floyd County plantation, he could sell it and buy another. Witness had a child’s part in the dividends of the Fontenoy mills property—that is, .one-seventh. On one occasion, during the war, witness received $60,000, and on another $50,000. Since the war she received $3,000 in greenbacks through the defendant. She has heard it commented upon in the family as a singular fact, that the defendant gave places to his sons, Felix, Thomas, William and Junius, and yet did not make, titles to them.</p> <p>A letter from the defendant to the complainant, A. M. Poullain, was introduced, dated August 12, 1879, stating that she would find from the records that he only loaned the land and negroes to her father, and saying, “I gave William Smith $2,325 for,your house and home, which is more than the dividends from the factory.”</p> <p>Antoine Poullain testified, in brief, as follows : The use of the Fontenoy mills property belonged to the children and representatives of children of defendant; this commenced. about 18G2 or 1863. The factory was run by water-power, and the income belonged to the children and representatives of children. There were seven parties in interest, and complainants were entitled to a seventh interest, if they were all of the legal representatives of Junius Poullain. Witness entered the dividends, their amounts, and to whom paid, on his book, to which he refers. Defendant never made any title to his children to the mill or .other property, and it was the habit of witness to send the dividends to him for distribution. (The book was introduced, showing entries of payments to “ T. N. Poullain, Sr., for stockholders,” and to “Estate Junius Poullain, dividend.” In 1864 and 1865, there were two such items of $20,000 and $50,000; in 1867, $1,000 ; in 1868, $1,000.'</p> <p>The evidence on behalf of the defendant was, in brief, as follows:</p> <p>It was'S'admitted that A. M. Sloan deeded the Floyd County land in controversy to the defendant, November 26,1856, for $6,000, and that the defendant conveyed the land by deed to John H. Lovejoy, December 20,1862, the consideration being $10,000. It was also admitted that in the returns of McCullough, as administrator of Junius Poullain, the personal property was appraised at $2,667.06, and that it was sold for $3,263.72.</p> <p>A receipt from Junius Poullain to defendant was introduced, showing that the former received from the latter certain negroes as a loan. It was dated January 6, 1859.</p> <p>Several witnesses testified that they knew the land when Junius Poullain lived on it; that its condition when he went into possession and when he left was about the same, or that it had deteriorated; that it had not been enhanced in value by improvements placed there by him; and that he did not erect valuable and substantial improvements thereon.</p> <p>T. N. Poullain, the defendant, testified by interrogatories, in brief, as follows: He received $1,600 from McCullough, administrator of Junius Poullain, in Confederate money, and invested in 4 per cent. Confederate bonds; bought the Floyd County land from one Sloan at $6,000; never gave it to Junius, and never intended to do so, simply gave him the use of it; in the letter to his wife, meant that he had bought it for the use of Junius; generally designated it as Junius’s place, meaning the place where Junius lived; intended to give the same use of the land as of the negroes specified in the receipt in evidence; .'sold the land to Lovejoy for $10,000 in Confederate money; .denies the' statement testified to by Lovejoy about the Georgia' Railroad bills and the intended investment, or that he was selling the land as his son’s in order to make a permanent investment, or that Junius had made any improvements on the place. At the time he sold it, he considered it worth less than when he bought it. He turned over to Antoine and Thomas (his sons) the Eontenoy mills property for the use and benefit of all his children, subject to his control and liable to be terminated at any time. During the war, Antoine and Thomas, as his agents, managed this property. He had a right to control the dividends. Thinks he received about $4,000 in good money, most of which he gave to his children. Supposes he received in Confederate money over one hundred thous- and, perhaps one hundred and fifty thousand dollars, most of which he has on hand now; much has been lost or destroyed. Is certain that it is the same money and turns it over to one of the commissioners. Witness knows nothing of the books kept by Antoine; saw them for the first time during the pendency of the arbitration at the court-house several years ago. Don’t know whether the . entries on them are correct or not. The account attached to his answer is correct.</p> <p>It was admitted that certain Confederate money produced in court in a basket was that referred to by defendant in his testimony.</p> <p>The jury returned a verdict as follows:</p> <p>' “ "We, the jury, find against the first exception of complainants.</p> <p>G. N. Boswell, Foreman.”</p> <p>And so likewise as to each exception to and including the seventh. Then followed the following finding:</p> <p>“ We, the jury, sustain the report of the auditor in full in favor of the defendant. G. N. Boswbll, Foreman.”</p> <p>Complainants moved for a new trial on the following</p> <p>• (1), (2), (3). Because the verdict was contrary to law and evidence, and was not supported by the evidence.</p> <p>(4.) Because the court erred in charging the jury as follows : “ The auditors report is an important element in this case. It is evidence before you, evidence of a high character, and is prima facie true and correct, and to overcome it the burden of proof is upon the complainants who exr cept to it, and they must produce evidence to you so strong, clear, unambiguous and unequivocal as to leave in your minds no reasonable or serious doubt that the auditor erred, and that his report is erroneous and should be overruled or set aside.”</p> <p>(5.) Because the court erred in charging as follows: “ It is claimed by complainants that the defendant, Dr. T. N. Poullain, gave the Floyd County place to their father, Junius Poullain. Upon this subject I charge you, there can be no quesion that the existence of the gift of this place by Dr. Poullain to his son, Junius, must not be left in doubt. The evidence on this point must be so strong, so clear, unambiguous and unequivocal as to leave upon your minds no doubt, no reasonable, serious or grave doubt that Dr. Poullain actually gave this place to his son. Hence the courts have always been averse to acting upon expressions picked out of casual conversations or-extracted from correspondence between the parties themselves, or of the vendor or grantor with others, especially where that correspondence is not forthcoming, or from act3 of the parties of an equivocal character, which may as well be ■ referred to something other than the alleged agreement or' gift, or from the inducements which an anxious parent. holds out to a wild and dissipated child to effect his re- ■ formation, and the like.”</p> <p>(6.) Because the court charged the jury as follows: “If' your minds are satisfied beyond a reasonable, serious or grave doubt that Dr. T. N. Poullain did actually give the Floyd County place to his son, Junius; if you are so satisfied from evidence of the character I have indicated— that, is, evidence clear, strong, unambiguous and unequivocal, then you should go further, for in. the absence of a deed or other written evidence of title from Dr. Poullain to his son, the mere gift and putting Junius in possession is not of itself sufficient to pass the title. Something more is required. Junius must have remained in possession under such gift for seven years, or he must have made improvements on said place, substantial and permanent in their nature, beneficial to the freehold, valuable in character and such as an owner would ordinarily make. It is admitted that Junius did not remain in possession seven years; but complainants allege that their father, Junius, while in possession, made such improvements as I have mentioned. On this point I charge you that the burden is on complainants to show you that Junius did make such improvements, and the evidence must be on this point of the same character which I have told you was necessary to establish the gift—that is, it must be so clear, strong, unambiguous and unequivocal as to leave upon your minds no reasonable, serious or grave doubt that Junius actually made improvements of the nature and character I have before mentioned upon the place.”</p> <p>(7.) Because the court charged as follows: “ If you believe from the evidence that the defendant was, in the court of ordinary, discharged from the guardianship of the complainant, Anna M. Poullain, and that such discharge was not procured by any fraud practiced by defendant on the ordinary, then you should find against the complainant, Anna M., in toto / for if you' find that there was no fraud so practiced, then she has no interest and no claim against the defendant whatever in this case, except for funds mentioned in his returns, even if he owed her or had funds belonging to her in his hands besides those returns at the time of his discharge. If she had notice of his application for discharge, and the law presumes she did in absence of proof to the contrary, then she has had her day in court, and cannot be heard now, it matters not whether defendant made a true and correct report or return to the ordinary. If he practiced no fraud—that is, acted in good faith, although he may have been mistaken, and actually had funds belonging to her which he did not return, still his discharge would be a bar to her.”</p> <p>(3.) Because the court refused to charge the jury, as requested in writing by complainant’s counsel, the following : “ That the discharge,of the ordinary can only be good for what it covers—that is, that it can be only set up here as a defence to the $1,600.00 Confederate money received by defendant from the administrator of plaintiff’s father, and cannot, in any event, be set up against claim of complainants for dividends from Fontenoy mills and interest in .the Floyd County place.”</p> <p>(9.) Because the court erred in not admitting in evidence, the. same having been offered by complainants’ counsel, the following evidence by Mrs. Anna M. Poullain, to-wit: “ The defendant bought the place, that is, the Mnd in Floyd County, for Junius Poullain, and that was the way he (Junius) came in possession of it.</p> <p>(10.) Because the court erred in not admitting the following evidence of the witness, J. M. Storey, to-wit: “ That he heard Dr. T. N. Poullain say, sometime after 1868, that he had given the Fontenoy factory to his children.”</p> <p>(11.) Because the court erred in not admitting the following evidence by the witness, CharlesC. Norton,to-wit: “ That he heard the defendant say that he had given the Fontenoy mills property to his children and grand-children.”</p> <p>(12.) Because the court charged as follows: “If you believe from the evidence that the defendant invested the $1,600.00 in Confederate money, which he received from the administrator of Junius Poullain, in four per cent, bonds of the Confederate States, as claimed by him in his special return to the ordinary of Greene County, made May 24th, 1864, then he is not liable to complainants for its value at the time he invested it.”</p> <p>(13.) Because the court charged as follows: “ Ordinarily a guardian cannot encroach upon the corpus of the estate of his wards without an order of court authorizing him to do so; but if you believe, from the evidence in this case? that the defendant purchased the house and lot in Greensboro with the funds of his wards and their mother, and they occupied said house and premises and got the benefit of the same, it matters not if he did encroach upon the corpus to this extent; he cannot be held liable for it, even if he had no order of court authorizing it.”</p> <p>[Addition to this ground by the court: “The court charged that the investment in the house and lot without an order would be allowed, in the event the complainants now hold the house and lot, and in the event all the income of complainants’ property was needed for their support and education, and was actually expended in their support and education.”]</p> <p>(14.) Because the verdict is contrary to the following charge of the court: “ If your minds are satisfied beyond a reasonable doubt, from evidence clear, strong, unambiguous and unequivocal, that defendant gave the Floyd County place to his son, Junius, then I charge you that slight improvements, and of small value, made by, or caused to be made by Junius, provided they are substantial and permanent in their nature, beneficial to the freehold, and such as none but an owner would ordinarily make upon the estate in like circumstances, may constitute such improvements contemplated by the statute, as would pass the title; but whether slight or extensive, they will not serve unless of real value, nor unless they are made by or for the donee pending his possession, and upon the faith of the parol gift sought to be set up and enforced by the bill.”</p> <p>(15.) Because the jury found contrary to the following charge of the court: “ If you believe that the defendant turned over the proceeds of Fontenoy mills to his children and representatives of children, and put said mills in the possession of Ms two sons, Antoine and Thomas, or Henry Moore, as the agents of his children, to operate for their benefit, and that dividends from this source, after it was so turned over, which belonged to complainants, went into defendant's hands, then he is liable for it, and you should find the amount for which he is so liable.”</p> <p>(16.) Because the verdict is contrary to the following charge of the court: “ If you believe from the evidence that the defendant gave the proceeds of Fontenoy mills to his children and representatives of children, and put his sons, Antoine and Thomas, in possession, to operate said mills for this purpose, but reserved the right to revoke this arrangement and take back the possession of said mills to himself at his pleasure, then I charge you that all the dividends or net earnings of s.iid mills be • longed to his said children and representatives of children, so long as he did not revoke said arrangement and take back the possession of said mills. And if, during the time it was being so operated for their benefit, any part of said dividends, to which complainants were entitled, went into defendant’s hands, as guardian or otherwise, he is liable for two-thirds of such amount that went into his hands on account of the interest of his son Junius’s family, and you should so find.”</p> <p>(17.) Because the verdict is contrary to the following charge of the court: “If the defendant turned over the Fontenoy mills to his children, that they might receive the dividends arising therefrom, and reserved the right in himself to take said mills back at will, then, so long as he did not take them. back, his children and representatives of children were the joint owners of said dividends. There being seven children, each was entitled to a share of one-seventh in said dividends, and these complainants would be entitled to two-thirds of one seventh of the same; and if one of these seven shares of dividends, which was for Junius Poullain or his wife and children, went into the hands of defendant, either as guardian for complainants or otherwise, and. has not been accounl ed for by him, you should find for the complainants two-thirds of the amount which so went into his hands ; and on this point you are authorized to find a verdict in favor of the preponderance of testimony. The rule as to the character of the evidence which I have charged you, on the point of the gift of the Floyd County place and improvements on same, does not apply on this point, and ail others, except the gift and improvements. On this question preponderance of evidence is sufficient upon which to find.”</p> <p>(18.) Because the jury failed to find any verdict on the 8th exception filed by complainants to the auditors report, and there is no verdict on said 8th exception, as required by law.</p> <p>(19.) Because the jury failed to find any verdict on the 9th exception filed to the auditor’s report by complainants, and there is no verdict covering said exception, as required by law.</p> <p>(20.) Because the verdict is contrary to the following charge of the court: “ You should find seriatim on each and all the exceptions, except the 5th, which has been disposed of by the court. Write out a separate and distinct finding on each of the exceptions to the auditor’s report, except the 5th.” The jury failed to find on the 8th and 9th exceptions by complainants to the. said auditor’s report.</p> <p>The motion was overruled, and complainants excepted. Defendant also filed a cross-bill of exceptions, assigning error in the sustaining of the 5th exception to the audit- or’s report, and in overruling the demurrer to the amendment.</p> <p>cited as follows: Auditor’s report only prima</p>

Criminal Law. Insanity. Drunkenness. Evidence. Bes Gestx. Charge of Court. Malice. Before Judge Estes. Rabun Superior Court. September Term, 1885. Eugene W. Beck was indicted for the murder of his wife, Ella Beck. He pleaded not guilty. On the trial, the evidence for the state was in, brief, as follows : On October 28, 1884, Beck went to the jail, and while there, talked to the town marshal about some hogs belonging to one Wall that kept getting into his lot.

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. If one of a number of penitentiary convicts, who were engaged in emptying and filling cans wilh water from a river, fell into the stream, and was not attempting escape; and if the guard in charge, as a reasonable man, must have so concluded by observing his efforts to return, if such were made, but nevertheless fired upon and killed him, it would be murder. But it is the duty of the guard to keep safely the convicts placed in his charge, and to preventtheir escape; and therefore, if the circumstances were such as to lead him, as a reasonable man, honestly to conclude in his own mind that the convict was trying to escape, and that the n;cessity was upon him to shoot and kill in order to prevent the escape; and if, urged by this necessity pressing upon him in the discharge of official duty as a guard, he did shoot and kill to prevent the escape, then the homicide would be justifiable.</p> <p>2. In order to justify the homicide of a convict by the guard, the cir. cumstances must be such as to enable the jury to find that the guard, as a reasonable man, was impressed, at the moment of the killing, that the necessity was upon him to kill in order to prevent the convict’s escape, and that he did act and kill with intent solely to discharge duty and prevent escape. If there be proof of malice of any sort, satisfactory to the jury beyond a reasonable doubt, on the part of the guard towards his prisoner, then that should be weighed as a motive moving the guard, and from it the jury might conclude that the malicious intent, and not the intent to discharge duty and prevent escape, predominated in the breast of the guard, and made a case .of murder.</p> <p>(a.) Whether the guard halted the convict, or commanded him to stop or return, would also be a circumstance to be weighed with the other circumstances in the case.</p> <p>S. There can be no involuntary manslaughter where the intention is to kill. If there is any evidence to raise a doubt, even though slight, as to the intention to kill, the court should give in charge the law of involuntary manslaughter, but if there.is nothing to raise such a doubt, the failure to charge on that subject will not require a new trial.</p> <p>(a.) A charge on the subject of involuntary manslaughter in the commission of a lawful act without due caution and circumspection should have been given in this case.</p> <p>Hall and Blandfobd, JJ., concurred in the judgment, but announced that, in their opinion, if the facts showed any crime, it was not greater than involuntary manslaughter in the commission of a lawful act without due caution and circumspection.</p>

• 'Parent and Child, Contracts. Minors. Before Judge Clarke.' City Court of Atlanta. At Chambers, May 26, 1885. William and Caroline Miller petitioned for the writ of habeas corpus to obtain the custody of Etta Wallace Miller, a child four years of age, from the possession of her father, James T. Miller.

Costs. Officers. Courts. Criminal Law. Sumter County. County Courts. Before Judge Fort. Sumter County. At Chambers, January 23, 1886. Blalock, the solicitor of the county court of Sumter county, petitioned for a mandamus against the judge thereof, alleging, in brief, as follows: An indictment for assault and battery was transferred from the superior court to th.e count y court and came on for trial at the Novernber term, 1885.

<p>Criminal Law. Verdict. Before Judge Willis. Marion Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

<p>Where an indictment for burglary alleged that the defendant broke and entered the store-house of “ The Walker Iron and Coal Company,” with intent to commit a larceny, without stating whether . such company was an artificial or natural person or a firm, this did not furnish a ground for arresting the judgment after conviction. At most, the exception went merely to the form of the indictment, and if good, should have been taken before trial.</p> <p>(a.) This case differs from that in 73 Ga., 474.</p>

Railroads. Damages. Negligence. Charge of Court. Before Judge Clarke. City Court of Atlanta. September Term, 1885. Lucinda Harris brought suit against the Central Railroad to recover damages for the killing of her husband.

<p>1. Whers personal property was sold under a contract by which the vendor should retain the title until the purchase money was paid, and without payment thereof, the purchaser re-sold to another, who appropriated it to his use, and refused to deliver it to the original vendor on demand, this was sufficient evidence of conversion.</p> <p>2. The plaintiff in trover having elected to take damages in place of the property, could recover the value of the property in suit with hire.</p> <p>3. Where a steam-engine was sold by the agent of the owners, title being reserved in them until the purchase money notes should be paid, and without paying them, the purchaser sold to a third person, against whom the vendors brought an action of trover, it was error to strike a plea to the effect that the defendant bought and paid for the engine without any notice of title in the plaintiffs, but that be had since learned that his vendor bought from the agent of the plaintiffs with the understanding that the title was to remain in them until fully paid for; that the purchaser failed to pay; that the agent of the plaintiffs, without making any effort to collect the •• • purchase money from him or out of'the property, agreed with Mm that he might sell the engine and thereby raise the money to pay for it, provided he would pay to.said agent five thousand dollars, out of money which he expected 'to receive from a certain trade.about to be made; that, failing'to make the trade, he could not-, carry out the contract with the agent, but in the meantime he had. sold to defendant, who had bought without notice of any incumbrance on the property, or of any defect in the title, or of the . agreement between his vendor and the agent of the plaintiffs; and •' that this conduct operated as a fraud upon defendant, and estopped plaintiffs from recovering the property.</p> <p>(a.) There also was error in rejecting evidence offered under such plea and pertinent thereto.</p>

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. There are two modes provided by the Code for the submission of matters in dispute to arbitration: one under the act of 1856, codified in §4225 et seq., and the other codified from the common law, in §2883 et seq. Under the former there must be three arbitrators ; under the latter any number of arbitrators will do, and there need be no order to make the award the judgment of the court, but it is binding without, unless attacked for fraud in the arbitrators or party, or a palpable mistake of law, or reference to chance or lot. In either case, a guardian may make the submission and the award will be binding on the wards.</p> <p>2. It is not incumbent on the court to send the case back to the auditor when that officer has erred on points of law; especially where no error hurt the movant therefor.</p> <p>3. No opinion is expressed on the facts, except in so far as the verdict conflicts with this opinion. Thus far, under the facts as they appear, it is contrary to law.</p> <p>4. Where the auditor reports the facts, the jury may differ with him thereon. The controlling rule of law on the subject of what is necessary to overcome tí e prima facie correctness of tho finding having been misapprehended, it is best-that the case be tried over, although it was contended that the charge was favorable to the movant; especially where a general verdict was found, on exceptions to an auditor’s report, though by consent.</p> <p>(a.) The relation between husband and wife is close, and the acts of the two should be scanned closely where or.e holds himself out as the agent of the wife. This case should be tried over as to all of the plaintiffs.</p>

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>The order of the chancellor upon this application for injunction, though not in the terms of complainant’s prayer, keeps the subject-matter in dispute in the position in which it was found when the bill was brought, and protects every interest of the contending parties, until the cause can be finally heard. Nice and doubtful questions were properly not determined on the preliminary hearing under ex parte affidavits, and those questions will not be reviewed here.</p>

<p>[This case was argued at the last term, and the decision reserved.1</p> <p>Where the undisputed evidence showed that an engineer of a railroad company violated its rales furnished for his government in respect to passing switches and turnouts, and in respect to the speed at which trains should he run, and the precautions to be used by engineers to prevent collisions, and that a collision was occasioned in whole, or at least in large part, from his negligence in this regard, and that such collision caused his death, a recovery by his widow against the railroad for his homicide was contrary to law and unsupported by the evidence, whether or not there was also negligence on the part of the company’s employés on the other traia with which the collision occurred.</p> <p>' (a.) Such violation of rules appearing from the evidence for the plain- , tiff, semble that a non-suit should have been granted.</p>

<p>ílhis case was argued atibe last term, and the decision reserved.]</p> <p>1. Where goods were shipped by steamer from Baltimore, Md., to Savanraah, Ga., andtbeneebya connecting railroad to Brunswick, and en their arrival it appeared that a portion of the goods had been abstracted, and the railroad tendered their value, but this was refused because the consignees also claimed damage to the goods from salt water during1 the voyage, which was contested:</p> <p>Meld, that the items for damage and for loss of goods were severable; and the tender was proper, and should have been accepted.</p> <p>2- Where it was conceded that the damage to the goods occurred during the ocean yoyage, and was complete before their delivery to the railroad, the liability of the latter to the consignees therefor would depend upon the contract of affreightment between the steamship company and the plaintiffs. If the steamship company was not liable, and the railroad company would have no recourse on it, the railroad company would not be liable to the consignees.</p> <p>(a.) Where the bill of lading issued by the steamship company provided for an exemption from injury resulting from “blowing” of bilge-water upon the goods, and from other perils of the sea, and the evidence showed that the injury resulted from such “blowing” of bilge-water, occasioned by the rolling and tossing of the vessel, and there was no evidence of negligence, either in the stowage of the goods or in allowing any unusual quantity of bilge-water to collect, a verdict finding for the plaintiffs for the amount of damage so occasioned was contrary to law.</p> <p>(b.) A bill of lading by an ocean steamship company containing an exemption from liability from “blowing” and other perils of the sea is valid and binding on the consignees who receive it.</p> <p>(c.) Opinions of witnesses offered as experts, that damage to goods was occasioned by negligence, is not admissible, and if admitted should not weigh against positive testimony to facts instead of conclusions.</p> <p>(d.) Where the evidence leaves it in doubt whether the damage was occasioned by the ordinary perils of the sea or by the negligence of the company, and where there is an exemption in the bill of lading from the injury occasioned by such perils, semble that the plaintiffs cannot recover. If they would protect themselves from the damage resulting from this cause, they should have obtained a marine policy of insurance.</p> <p>(e.) The verdict in excess of the shortage is contrary to law and unsupported by evidence, and is set aside; for the amount of the shortage it must stand. But plaintiffs must-pay costs both in the superior court and in this court.</p>

Contracts. Principal and Surety. Guaranty. Principal and Agent. Before Judge Hammond. Fulton Superior Court. March Term, 1885.

<p>Criminal Law. Embezzlement. Jury and Jurors. Indictment. Practice in Superior Court. Character. Evi.dence. Charge of Court. Before Judge Roney. Richmond Superior Court. April Term, 1885.</p> <p>Geo. T. Jackson was indicted for embezzlement, and was tried and found guilty. A new trial was refused him, and he excepted. For the other facts, see the decision.</p>

Contracts. Notice. Insurance. Pawns. Evidence. Time. Before Judge Adams. Chatham Superior Court. June Term, 1885. On December 17, 1883, Grant sued out an attachment against the Alabama Gold Life Insurance Company for $3,500.

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. If a request to charge be not all proper, the court need not give any part of it in charge.</p> <p>(a.) If a city constructed a bridge in one of its streets of loose planks, or upon re-constructing it, the planks were left unfastened by its. employés, notice to them is notice to the city.</p> <p>(6.) A request to charge that such defects must have been so open and notorious and of such a character and have existed for such a length of time that the city knew or might have known of them was too broad.</p> <p>2. The newly-discovered evidence, with the depositions in answer thereto, could not change the verdict.</p> <p>3. Where it was shown that a bridge in a street, over which the plain- ■ tiff was passing when injured, was in general and daily use by pedestrians, though in the street and not the sidewalk, it being the best crossing, especially in bad weather, there was no error in refusing to charge that a pedestrian could not, for mere convenience or pleasure, deviate from the established line of the sidewalk and go upon a bridge or crossing designed for the street or roadway proper, there being no evidence that the plaintiff went upon it for pleasure, but only as other passers did.</p> <p>(a.) Besides, this ground is not certified.</p> <p>4. A city is bound to keep its streets, sidewalks and bridges in a reasonably safe condition.</p> <p>(a.) Keeping, as so used, includes the proper construction or reconstruction of a bridge, forming part of the street.</p> <p>5. The evidence sustains the verdict.</p> <p>(a.) The cases in 70 Qa., 193, and 66 Id., 195, do not conflict with the ruling in this case.</p>

Railroads. Damages. Negligence. New trial. Before Judge Marshall J. Clarke. City Court of Atlanta, September Term, 1885. Holcombe & Co.- brought their action against the Atlanta and Charlotte Air-Line Railway Co., alleging, in brief, as follows: Plaintiffs were engaged in the business of buying wood .along tbe line of defendant’s road, having it cut a.nd shipped to Atlanta for sale.

<p>Jury and Jurors. Criminal Law. Practice in Superior Court. Evidence. lies Gestes. Before Judge Lumpkin. Hancock Superior Court. October Term, 1885.</p> <p>John Carr was indicted for assault with intent to mur- ' der and was found guilty. He moved for a new trial on the grounds which are substantially set out in the decision.</p> <p>The motion was overruled, and he excepted.</p>

Railroads. Common Carriers. Contracts. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1885. To tbe report contained in the decision, it is necessary to add only the following: The defendant pleaded the general issue; that the damage occurred before shipment, if at all; and that its liability ceased upon delivery of the goods in good order to the next connecting road.

<p>1. A bill of exceptions to a judgment granting or refusing a new trial will not be dismissed on motion of defendant in error because it fails specifically to set forth the errors alleged to exist in said judgment, and the party be thereby deprived of a hearing, at least as to the general grounds usually relied on to obtain a new trial, or such as set out newly discovered evidence which might or should produce a different result on another trial. The motion and brief of evidence are parts of the record, and need not be set out in the bill of exceptions except by reference.</p> <p>2. If the grounds of the motion plainly specify both the decisions complained of and the errors alleged to exist therein, under §4251 of the Code, this court would be bound to hear it under a general exception to the judgment granting or refusing the new trial; but if deficient in either of these particulars, this court would not, under such general exception, determine it, at least as to the particular point so complained of.</p> <p>(a.) The sixth ground of the motion in this case complains of a charge given by the court, but does not specifically set forth what is the error alleged to exist therein, and cannot, therefore, be considered.</p> <p>(b.) The charge complained of appears to have been warranted by the evidence.</p> <p>3. The evidence was conflicting, the presiding judge was satisfied with the verdict, and this court cannot say that he abused his discretion in allowing it to stand.</p> <p>4. It is not clear that the jury disregarded that portion of the charge of the court in which he construed a letter from plaintiff to defendants, in which oceun-ed the expression, “Place the $700” (sent with the letter) “ on interest,” and instructed the jury that the legal effect of this letter was to give the defendants general authority to place the money mentioned for the plaintiff in the hands of some person who would pay him interest therefor. At all events, the charge itself was too broad and was not sufficiently qualified or guarded in its terms. Under the facts in evidence, this was an ambiguous expression, the meaning of which should have been left to the jury.</p> <p>(a.) For the court to treat as an instrument em bodying the terms of the contract, and to construe in such a manner as to bind the jury, every expression found in a correspondence relating to the conduct of the business in pursuance of the contract, does not seem to be in accordance with the provisions of the Code conferring the power and making it the duty of the court to construe contracts, and other provisions qualifying' and restricting this power.</p> <p>6. Newly discovered evidence, which is merely cumulative and tends only to show admissions made in a casual conversation between the plaintiff and a witness, will not require a new trial; especially where the statements thus proposed to be proved are directly denied by the counter-affidavit of the other party to the conversation, and where the integrity of the affiant is assailed.</p> <p>(a.) As a ground for a new trial, the discovery of new testimony is tolerated rather than favored, because of its liability to abuse and its tendency, as a general rule, to mislead.</p>

Railroads. Roads and Bridges. Fences. Before Judge Clarke. City Court of Atlahta. December Term, 1884.

<p>■ Criminal Law. Verdict. Charge of Court. New Trial. Before Judge Hammond. Clayton Superior Court. March Term, 1885.</p> <p>John Bernhard was indicted jointly with Jim Mitchell, Dock Curtis and Abe Ponder for the larceny of cotton, alleged to belong to J. E. Lindler and W. D. Banks. Bern-hard was put on his trial separately. The evidence for the state was, in brief, as follows : Certain cotton belonging to I. E. Lindler and W. D. Banks was stolen from a gin-house on the night of November 29, orthe morning of the 30th, 1882. On that night, after twelve o’clock, a wagon was heard passing up the road in the direction of the gin-house, Later in the night, Jim Mitchell and another man stopped at the house where Mrs. Cox and her sons lived, and wanted to hire a wagon and to get one of the sons to haul, some cotton to Fairburn, a distance of some twenty or twenty-five miles. The man who was with Mitchell was called John Bernhard, but the Coxes could not identify him certainly as the defendant, and testified with much confusion and want of recollection. The cotton was transferred from the wagon on which it was brought to the wagon of Mrs. Cox, and her son carried it to Fair-burn and deposited, it at the depot (as he stated). The cotton was found in a warehouse in Fairburn early in December. Some of the' bands on one bale, which was marked with the name of Banks, had been taken off, but were still there.</p> <p>Dock Curtis, one of the parties indicted, testified that. = Mitchell and Bernhard came to his house, about, a mile and, a half or two miles from the gin house, to get him to help-, load cotton; thátthey said it was cotton about which there was a suit, but on his objecting to going, they said they., had bought it; that they insisted on his going, and finally, drew weapons on him; that as they drove from the gin, they said they were afráid he would tell; .that he said they. o'ught- to -tell'.</p> <p>The judge in a note certified that Lindler stated that he was often known by the name of J. E. Lindler. There • was much cross-examination as to the statements, threats, ■ etc., which'need hot be stated'in detail. The defendant-made a statement to the effect that he had been ginning, all' day; left his wagon on the scales all night; went up : to the store and was drinking; about eleven o’clock, went' home and wént to sleep; next morning got up and loaded.: his'wagon; knew nothing of the larceny.</p> <p>The verdict was, “We, the jury, find .the. defendant; guilty.” The defendant madé a motion in arrest of judgment on the ground that it was not stated which defendant was found guilty. This was overruled. He also made a motion 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 refused to give certain charges, which need not be copied in full, in order, to understand-the decision.</p> <p>(8.) Because- the- court refused .to charge as follows: “ While drunkenness is not- an excuse for crime, yet if yon believe from the evidence that the defendant was drunk ah the time of the alleged offense, then you may look to this as a circumstance going to show any- intention on his part: to commit an offense.”</p> <p>(4.) Because the court charged as follows: “If you.' should believe that the witness was not an accomplice in the crime, knowing that the crime was being committed, then this , rule of law as to corroborating circumstances would not apply, because, in that event,' you would be authorized on his testimony alone to base a conviction.”</p> <p>' (5 )' Because the court charged as follows: “ If you believe in this'case that either of the witnesses who testified for the state was present when the crime was committed, if you think a crime was committed, and aided and assisted in'it with the knowledge that a crime was being committed, then he would be an accomplice, and his testimony alone would not be sufficient to convict the person he said was. present and committing the crime.”</p> <p>(6.) Because the court charged as. follows: “ If you should believe that the name of I. E. Lindler was written thus by mistake, and that he is frequently known as J. E. Lindler, although his name is I. E. Lindler, and that the. property in question was that of I. E. Lindler and W. D. Banks, then the court charges you that would be a sufficient description of the ownership of the property,' and' you would be authorized to so find.”</p> <p>' The motion was overruled, and the defendant excepted.'</p>

Practice in Superior Court, Administrators and Executors. Comity. Set-off. Newly Discovered Evidence. Before Judge Marshall Clarke. City Court of Atlanta. September Term, 1885.

Criminal Law. Rape. .Verdict. Witness. Evidence. Before Judge Carswell. Washington. Superior Court. September .Term, 1885. Ben Brown was indicted for the rape of one Sarah Edwards. On the trial, the, evidence, on the. behalf of the state was, in brief, as follows: On Friday, May 10, 1884, the defendant hoed cotton all day with Bill Edwards, his wife and daughter, Sarah, who was eleven years of age.

Homestead. Title. . Husband and Wife. Before Judge. Roney. Richmond Superior Court. October Term, 1885 Sarah E. Bridwell, as head of a family, for herself and minor children, as the widow of T. H. Bridwell, deceased, filed an application for homestead and exemption in certain property belonging to the deceased husband.

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>1. Where suit was brought on a promissory note, a plea of failure of consideration was sufficient, which alleged that the note was given for the exclusive right to sell patented machines in certain counties, that the machines were worthless and unsuited to the purposes for which made, and that the note was purchased after due by the plaintiff. The exclusive right to sell was valueless if the machine was worthless</p> <p>fa.) The adaptation of a machine to the uses for which it is made is always warranted.</p> <p>2. There was no error in charging that, unless the machines were reasonably suited to the uses for which they were intended, or • • were utterly and absolutely worthless', the jury would be author- ., ized to find-for the’defendant.</p> <p>3, The verdict is supported by the evidence, and being approved by the presiding judge, must stand.</p>

<p>Justice Courts. Certiorari.’ Pfactice'in Superior Court: Judgments. ' Words' and Phrases. Before' Judge Hammond.' Pulton Superior Court'. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>[This case was argued at the last term, and the decision reserved.]</p> <p>Where suit was brought'by one railroad company against another : . connecting with it, alleging that the plaintiff, the defendant and another railroad company all entered into a contract to transport certain iron át a given rate, and the freight Was to’be apportioned among the three companies on the basis of the rate fixed, and that, in a settlement, the plaintiff accounted to the defendant at a higher rate for a portion of the service, and it sought to recover the excess so paid above the agreed rate, and where the defendant contended that the agreed rate was to continue only during the summer months, and that for any freight thereafter transported it and the other roads engaged in shipping the iron were to have advanced rates, it was admissible for the defendant to introduce in evidence a memorandum made by the general freight agent of the plaintiff for the purpose of instituting suit against the party for whom the transportation was done, such memorandum indicating that at the time it was made, the plaintiff’s agent understood the contract to be as the defendant contended that it was, and the agent who made it having been authorized to do so in the prosecution of the plaintiff’s claim, and having acted within the scope of his authority in mating it. In this transaction, he was the alter ego of the plaintiff.</p> <p>(a.) If there be other errors in the record, they are such as do not seem material, and they will doubtless be corrected on another hearing.</p>

Attorney and Client. Homestead. Before Judge Simmons. Bibb Superior Court. October Term, 1885. H. F. Strohecker foreclosed an attorney’s lien against E. D. Irvine for services in obtaining a homestead to be set apart and in resisting a levy thereon. Execution was issued and levied on certain personal property described in the affidavit to foreclose the lien. Irvine interposed a claim on behalf of his wife and child.

<p>When the testimony on the controlling issues involved in an application for injunction was conflicting, the discretion of the chancellor in granting or refusing the injunction prayed for will not be controlled.</p> <p>(a.) Where a bill was filed by a minority of the stockholders of a ■ corporation to enjoin the action of the majority in borrowing money to improve the common property, and where there was no allegation that the directors had gone outside of the charter powers, but the bill was apparently an effort of the minority to have the courts intervene in respect to different views of policy among the stockholders in regard to their internal management of affairs within the limits of the charter, it would require a strong case to authorize such interference, if it could be done at all.</p>

<p>Roads and Bridges. Pleadings. Franchises. Quo Warranto. Before Judge Estes. Hall Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

Deeds. Mortgages. Rowers. Sales. Administrators and Executors. Principal and Agent. Before Judge Simmons. Bibb County. At Chambers. February 27,1886. D. T. Roland, administrator of David Roland, deceased, filed his bill against S. T. Coleman & Company to enjoin a sale which they were proceeding to make by virtue of the power of sale contained in a written instrument made by the intestate to the defendants, which is fully set out in the decision.

<p>Tax. Title. Levy and -Sale. Injunction. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Accomplice. Venue. Yerdict. Before Judge Lumpkin. Habersham Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>Practice in Superior Court. Witness. Before Judge Willis. Muscogee Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

Practice in Supreme Court. Criminal Law. Before Judge Willis. Chattahoochee Superior Court. September Term, 1885. To the report contained in the decision, it is necessary to add only that the evidence on behalf of the state, connecting the defendant with the offense charged, and showing knowledge on his part, was, in briéf, as follows: Certain coi ton was stolen from the gin-house of one McKinsey and from one Shipp. The theft occurred at night.

Bankruptcy. Homestead. Before Judge Hammond. Fulton Superior Court. March Term, 1885. On December 30,1884, W. S. Withers applied to the ordinary of Fulton county for an exemption of personalty. Holland and other creditors filed objections, on the ground, among others, that in 1874 Withers had been adjudged a bankrupt; that his assignee had set apart to him $1,000 in personalty and $2,000 in realty; and that he was not now entitled to another exemption.

<p>Practice in Supreme Court. Practice in Superior Court. New Trial. Debtor and Creditor. Fraud. Interest and Usury.' Deeds. Title. Payment. Claim. Before Judge Stewart. Rockdale Superior Court. August Adjourned Term, 1886.</p> <p>On February 21, 1882, Irwin et al. recovered judgment against Zachry. Execution issued and was levied on certain real estate, and McKnight interposed a claim. The claimant relied on a deed from the defendant in fi. fa. to him, dated February 10,1875. He claimed that he took this to secure himself against loss on account of going security for Zachry; that he had to pay the money, amounting to a large sum— more than the value of the property, and thereupon took possession of it, Zachry resigning it in December, 1881.</p> <p>■ ■ The plaintiffs insisted that the conveyance was made to hinder, delay and defraud creditors.</p> <p>It is unnecessary to set out the evidence in detail. The jury found for the claimant. The plaintiffs moved for a new trial on fifteen grounds. The judge did not certify the grounds as alleged, but added a voluminous note, correcting the grounds and certifying them as corrected. The motion was overruled, and the plaintiffs excepted.</p> <p>The remaining facts will sufficiently appear from the decision.</p>

<p>Estates. Mortgages. Sealed Instruments. Equity. Before Judge Hammond. Butts Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>A case was tried, and resulted in. á verdict for the plaintiff; a new trial was granted, on motion of the defendant. On the re-hearing at a subsequent term, the case having been set for trial, under the rules of the court, it was called, and the plaintiff announced ready. An attorney moved for a continuance on the ground that the attorney for the defendant, who was also a witness, was absent, and also because certain interrogatories had not been returned. The motion was overruled, and the court directed counsel to strike the jury. The attorney who made the motion then asked the indulgence of the court for time to allow the agent of the defendant, who was present in the court-room during the entire proceeding, to procure counsel to conduct the case. An hour was asked. The court granted half an hour. At the end of that time, the judge returned to the bench, the court was called to order, and counsel, who had been employed for the defendant, moved to dismiss the case, on the ground that the process attached to the declaration was not sufficient in law. This motion was overruled. The defendant then filed a petition to remove the case to the circuit court of the United States, on the ground that it was a foreign insurance company, and that, from prejudice and local influence, it would not be able to obtain justice in the state court, which ground was sworn to by its agent:</p> <p>Held, that the final trial of the case had begun, and the petition to remove the case came too late.</p> <p>(a.) A literal compliance with the terms and limitations imposed by the act of congress, of March 2, 1867, for the removal of causes from the state to the federal courts, on the ground of prejudice or local influence, will be required.</p>

Justice Courts. Pleadings. Service. Certiorari. Before Judge Hutchins. Banks Superior Court. September Term, 1885. Kfi.fa. issuing from a justice’s court in favor of J. N. Coggins against J. C. King, was levied on certain personal property, and J. L. Telford interposed a claim. An appeal to a jury was taken. The plaintiff offered thefi.fa. in evidence.

<p>Where certain land sued for was described as being in the second and. third districts of Lee county, and the deed under which it was claimed described it in the same way, but testimony was introduced to show that the land was in Terrell county, which had been made, in large part, from Lee county, and on the trial, the record of the setting apart of a homestead was offered in evidence, which contained the plat of the county surveyor, showing the lands set apart as being lots numbers 33 and 34 in the sixth district of Terrell county, and lot number 33 of the second district, while the description in the surveyor’s affidavit stated them as being in the second and third districts of Lee county, the land embraced in the homestead was sufficiently identified as being that in controversy, and it was error to reject the record of the setting apart of the homestead'from evidence.</p>

<p>Where one took a deed to land to secure a debt, and gave bond to re-conyey upon its payment, and subsequently brought suit and recovered a general judgment against the debtor, and filed and had recorded a deed re-conveying the land, and thereupon caused it to be levied on and sold, such judgment was entitled to the fund arising from the sale in preference to an older judgment, rendered since the conveyance to secure the debt was made. ,It is not necessary that such a judgment should set forth any specific lien or right of priority; but where the facts appear from the untraversed answer of the sheriff, the fund will be awarded to such judgment.</p>

<p>Partnership. Attachment.' Amendment. Parties. Judgments. . Before Judge Clarke’. Fulton Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

<p>The evidence introduced before arbitrators is required to be filed with the exceptions to the award. Where an award was inade in February and exceptions thereto were filed in July thereafter, there was an abundance of time in which to have prepared and filed a a hiíéf of the evidence,- and there was no error in dismissing the sWófn exceptions to thé award for á failure in so doing, ór in refusing to postpone the hearing to allow time for the preparation , and filing of the brief., , . , ....</p> <p>(:d.“y Where an awárd has been returned by arbitrators under the státüte,'all suggestions' as to'its invalidity should be under oath, and exceptions not under oath will be dismissed.</p>

<p>Parties. Homestead. Amendment. Before Judge Carswell. Emanuel Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

<p>Continuance. Appeal. Practice in Superior Court. Distress Warrant. Before Judge Hutchins. Jackson Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. Where the creditor of a husband was seeking to subject property which was claimed by the debtor’s wife, on the ground that the conveyance by the husband to the wife was made to hinder, delay and defraud creditors, and where there was evidence to show, or from which the jury might infer, that the conveyance from the husband to his wife was without consideration, it was proper for the court to give in charge the law in reference to voluntary conveyances and their effect upon the rights of creditors.</p> <p>2. On the trial of su'ch an'issue between a creditor and the wife of the debtor, involving the bonafides of the parties and the transfer of the property directly ,or indirectly from the husband to his wife, a deed and mortgage connected with or growing out of the transaction which resulted in the conveyance from the husband to the wife, which was in issue, threw light upon the dealings between the debtor and his wife, and were admissible in evidence, although the deed was made some months after the conveyance of the property directly in dispute.</p> <p>3. No impropriety appears in the fact that the court said to counsel for claimant that he and the court agreed as to the law of the case, and that there was no difference on that subject between counsel for the contending parties; nor does it 'appear how such remarks could have improperly influenced the jury. -</p> <p>4. Although one sentence of a charge, if taken alone, may have seemed to require that the consideration of a conveyance from, a husband to his wife must be adequate, in order to sustain a claim to the property against'his creditor1, yet if, when taken in connection with its context, it appears that such was not the rule laid down, but that the court charged that gross inadequacy of consideration,- if it existed, was a badge of fraud and a circumstance that the jury might consider in determining whether the conveyance to ■the claimant was fair and honest or was fraudulent, and also charged that if the husband, bona fidé and for a valuable consideration, conveyed the land-in dispute to his wife in payment, or part payment, of an indebtedness to her, and if the consideration was fair and just, they would find for the claimant, this furnishes no ground for a reversal.' •</p> <p>(as.1) There was sufficient evidence to sustain the verdict.</p>

<p>1. A deed was made to a trustee for a married woman for life, and at lier death the property was to be equally divided between the children of her husband. The life-tenant having died, the children brought an action of ejectment against the occupants of the land. Defendants in ejectment filed their bill against the children and their father, alleging that the latter left in the hands of another certain notes in 1862, upon the eve of his departure for the war, and instructed such other person to look after his family and provide ahorne for them during his absence; that the person spentrusted collected the money and purchased the land in controversy, and had the deed made to him as trustee for the uses above stated; that this was done without the knowledge or consent of the plaintiff’s father, and he had no knowledge of it until 1866,-when he had sold one hundred acres of the land to one of the complainants ; that he then discovered the mistake in the deed, and' he and his wife consented that the person named as trustee might make such complainant a title, and afterwards that ho might make title to the other complainants, which was done; that the father received the money for the land, and out of it had supported, maintained and educated the children; and that complainants had., placed valuable improvements on the land. The prayer was for a decree declaring complainants’ title good and setting aside the trust deed, or in default of this, that complainants be subrogated to the rights of the father and be repaid the money expended for the education and maintenance of the children, and that a reasonable sum be allowed for the improvements:</p> <p>Reid, that the bill was demurrable, and that complainants were not entitled to any relief either at law or in equity. From the lapse of nearly twenty years after the discovery of how the deed was made, it will be concluded either that it was originally made on proper authority or that the act of the trustee was ratified by the father.</p> <p>2. It being the duty of the father to support, educate and maintain his children, he has no right against them to which the complain- ’ ants could be subrogated.</p> <p>(a.) This case differs from those in 46 Ga., 557, and 70 Ga., 179.</p> <p>3. Complainants having bought with their eyes open, they knew, or could have known, of the title of the children by the use of very little diligence; and no fraud or imposition having been practiced upon them, they can only set off improvements against mesne profits.</p>

<p>Principal and Surety. State Depositories. Estoppel. Contracts. New Trial. Before Judge Branham. Floyd Superior Court. March Adjourned Term, 1885</p> <p>Reported in the decision.</p>

Husband and Wife. Debtor and Creditor. Fraud. Charge of Court. Evidence. Before Judge Eve. City Court of Richmond County. September Term, 1885. Miller & Bussey brought suit against Mrs. Sarah E. Vaughn on an open account for $1,241.01 for merchandise furnished. The defendant pleaded the general issue.

<p>Criminal Law. Words and Phrases. Larceny. Before Judge Lawson.. Wilkinson Superior Court. April Term, 1885.</p> <p>Reported in the decision.</p>

<p>Where the evidence was conflicting on material issues in the case, and the presiding judge sustained the certiorari, and thereby granted a first new trial, this court will not interfere.</p> <p>(a.) If the plaintiffs refused to furnish goods to a son on credit, and. were informed by the father that, if they would do so, he would see that they were paid, and they thereupon furnished goods to the son and charged them on their books to the father and son merely as a memorandum, to enable them to distinguish this from another individual account of the father, and to show precisely the amount furnished to the son, in the absence of other testimony, this would be sufficient to uphold the contract of the father as aboriginal undertaking.:</p> <p>(b.) A test whether the undertaking is original or collateral may be furnished by the question whether the son is still held' liable.</p>

<p>Equity. Mandamus. Practice -in Superior Court. Before Judge Fort. ■ Macon' County. At Chambers. January 4, 1886.</p> <p>Reported in the decision.</p>

<p>Attorney and Client. Criminal Law. Practice in Superior Court. Before Judge Clarke. Clay Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. This case arose out of the same homicide as that involved in the case of Hudson vs. The State (decided to-dáy), and the ruling in that case as to the sufficiency of the evidence to sustain the finding applies in this.</p> <p>2. There was no error in charging that, if the defendant and her brother conspired together to kill the deceased, and went to where he was, and in pursuance of such common intent, she engaged in a violent and unlawful attack upon the deceased, and continued so engaged until her brother shot him, and all of this was done to carry out and consummate a common intent formed between them to kill the deceased, then she would be guilty as a principal.</p>

<p>Judgments. Jurisdiction. Equity. Ordinary. Practice. Laches. Before Judge Brown. Cobb County. At Chambers. September 9, 1885.</p> <p>Reported in the decision.</p>

<p>Tax. Comptroller General. Levy and Sale. Before Judge Clarke. Early Superior Court. April Term, 1885.</p> <p>Ivey brought ejectment against Rish for certain land in Early county. The plaintiff relied on a chain of title from the state. The defendant relied on a tax sale under afi.fa. issued by the comptroller general for tax on the property in dispute as wild land, whose owner was unknown. The fi.fa. was issued October, 1877, for taxes of 1874, and the sale was made on the first Tuesday in May, 1878. A sheet forming part of the “ Weekly Constitution,” published at Atlanta, dated March 30, 1875, and setting out a list of unreturned wild lands for 1874, was introduced, and a witness stated that he had seen similar advertisements in the clerk’s and ordinary’s offices for a considerable time.</p> <p>The evidence for the plaintiff showed that the land had been returned and the tax for 1874 paid to the tax collector of the county of the plaintiff’s residence.</p> <p>The court charged, among other things, as follows.; “When the defendant claims title under a wild land tax fi.fa., he must show that, before the comptroller general issued said fi. fa., he had published the lot of land here sued for in the list of unreturned wild lands for thirty days in some newspaper published at the capital of the state;, and where only one issue of said paper has been introduced, showing that this lot of land was advertised by the-comptroller general in a newspaper published at the capital of the state, it is not sufficient to prove that said lot was advertised for thirty days; and if there is no other evidence of such advertisement, you must find for the plaintiff.”</p> <p>. The jury fo.und for the plaintiff. The defendant moved • for a new trial, which was refused, and he excepted.</p>

Justice Courts. Judgments. Constitutional Law. Laws. Publications. Words and Phrases. Before Judge Simmons. Meriwether Superior Court. August Term, 1885. A fi. fa. in favor of Gaither against Shuttles was levied on certain land, and Freeman interposed a claim. On the trial, the plaintiff offered the execution in evidence. It stated that it had been rendered on August 18, 1879, by a notary public' and ex ojfieio justice of the peace.

Claim. Pleadings. Bonds. Trusts and Trustees. Before Judge Kibbee. Dooly Superior Court. March Term, 1885. This action was brought in favor of Bowen, constable, for the use, etc., against “ John C. Penny, trustee for M. T. Penny,” as principal, and John D. Adams, as security. It was alleged that a fi.fa. in favor of John F. Lewis & Son, the usees in the suit, against John 0.

Principal and Surety. Bonds. Distress Warrant. Practice in Superior Court. Judgments. Before Judge Willis. Taylor Superior Court. August Term, 1885. On January 27,1879, Bivins sued out a distress warrant ■against Walker for $456.24. It was levied, and the defendant filed a counter-affidavit, denying indebtedness, and gave a replevy bond with Willis and Lockett as sureties. At the April term, 1880, of court, the following judgment was rendered: “Jas.

<p>Although the charter of a railroad company authorized it to acquire such strips of land between its terminal points as it might deem necessary, the width of the right-of-way not being stated, yet when the road was located along and near the land now in dispute, and for thirty years the company did not take or use it, but it remained in the possession of others who claimed title to it, this was conclusive that it was not deemed necessary by the company for the successful operation of the road, and was not, therefore, a part of its right-of-way under its charter, no conveyance to the company or condemnation of the land appearing; and a verdict finding in favor of the company for the land, under such facts, was without sufficient evidence to support it.</p>

Liens. Laborers. Pleadings. Before Judge Mershon. Clinch Superior Court. November Adjourned Term, 1885. J. Q. Floyd and N. Skipper each made affidavits to foreclose general laborers’ liens against W. R. Lane.

<p>Where suit was brought on certain promissory notes given for the subscriptions of the makers to the stock of a railroad company, it was not admissible for the defendants to prove that the parties who obtained the subscription to the stock represented that the road, when built, was to be a broad or standard gauge road, and was to be ironed and equipped by the Central Railroad; whereas, when constructed and put into operation, it was ironed and equipped by the company itself, and was a narrow gauge road— there being no such condition in the notes or in the charter, and the evidence not showing that the parties who made them made any stipulation, verbal or written, for the terms alleged as a condition to their subscription, or that the parties making such representations had authority to bind the company thereby, or that they attempted to do so, or that the representations were reported to the company and assented to by them. ’</p> <p>(a.) Equity will not reform a written contract of subscription by inserting a condition therein, except upon proof that the parties intended, at the time of executing the contract, to insert it, and that it was omitted by fraud, accident or mistake of fact, and the mistake must have been that of both parties, and not of one only.</p> <p>(5.) This case differs from those of Hendrix vs. The Academy of Music, 73 Qa., 437, and The Academy of Musió vs. Flanders Bros., 75 Id., 14.</p> <p>(c.) Vague, general and uncertain allegations that the charter of a company is contrary to law and the constitution of the state, and that its existence as a legal corporation is denied, make no question upon which an issue of law or fact could be taken. Besides, this question was abandoned in this court.</p>

<p>Eailroads. Service. Words and Phrases. Continuance. Leases. Before Judge Hammond. Fulton Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

<p>Wills. Estates. Infancy. Legacies. Presumptions. Before Judge Harris. Douglas Superior Court. July Term, 1885.</p> <p>Reported in the decision.</p>

<p>Garnishment. Distress Warrant. Justice Courts. Rule. Before Judge Adams. Effingham Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

<p>Evidence. Contracts. Promissory Notes. Before Judge Adams. Effingham Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

<p>County Matters. Roads and Bridges. Floyd County. Constitutional Law. Elections. Before Judge Branham. Floyd County. At Chambers. April 24, 1886. '</p> <p>Reported in the decision.</p>

<p>Justice Courts. Jurisdiction. Judgments. Nullities. Estoppel. lies Adjudicata. Before J udge Clarke. Randolph Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

Railroads. Damages. Negligence. Charge of Court. Life Tables. Trespass. Husband and Wife. Before Judge Carswell. Scriven Superior Court. November Adjourned 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) to (3.) Because the verdict was contrary to law, evidence and the charge of the court.

<p>Criminal Law. Evidence. Before Judge Bower. Webster Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

Torts. Actions. Libel. Before Judge Hammond. Eultom Superior Court. March Term, 1885.

<p>Criminal Law. Indictment. Perjury. Before Judge Fort. Sumter Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. A rule against a sheriff is not limited to cases in which he has neglected or violated his duty, causing injury to the movant; but where he has a fund in his hands in respect to which there are conflicting claims, and he is honestly in doubt as to what is his duty, he is entitled to the direction of the court relieving him from responsibility as to the matter in controversy; and this may be had by a rule to distribute the fund, which serves the purpose of a bill of interpleader, the sheriff being a mere stakeholder, and the contestants litigating over the funds in his hands.</p> <p>2. Where a defendant in fi. fa. conveyed certain land, and subsequently other judgments against him were rendered, if the land was sold by the senior execution and the fund brought into court, after satisfying the older fi. fa., the equity of the holder of the deed was superior to that of the holders of the junior judgments; and this could be asserted on a rule to distribute the fund.</p> <p>(a.) This cáse differs from those in 53 Oa., 79, and 72 Id., 767.</p>

<p>Homestead. Equity. Injunction and Receiver. Before Judge Adams. Chatham Superior Court. December Term, 1885.</p> <p>Reported in the decision.</p>

<p>Mortgages. Debtor and Creditor. Appropriation of Payments, Before Judge Estes. Floyd Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

Administrators and Executors. Principal and Surety. Contracts. Bonds. Escrows. Evidence. Pleadings. Before Judge Branham. Haralson Superior Court. January Adjourned Term, 1885. On September 19,1S82, S. M. Davenport, ordinary, for the use of the heirs of T. H. Satterfield, deceased, brought suit against S. M. Satterfield, principal, and Seaborn Goldin and W. J. Brown, sureties on the bond given by the principal, as administrator of T. H. Satterfield,'deceased.

<p>Landlord, and Tenant. Estoppel. Deeds. Fraud. Before Judge 'Willis. Talbot Superior Court.' September Term, 1885.</p> <p>Beported in the decision.</p>

<p>The charter of the city of Griffin gives it no authority to define a nuisance, hut it has only the power to prescribe the mode and man ner of trying all charges thereof, and the state law must determine what a nuisance is which may be so abated. Therefore a petition by a property owner to abate a nuisance, consisting of an encroachmenl on one of the streets of the city, should have shown some specidamage to him in which the public did not participate; and in the absence thereof, such a petition was properly dismissed on demurrer.</p>

<p>Evidence. Larceny. Embezzlement. Accessory. Practice in Superior Court. Before Judge Lumpkin. Haber-sham Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>A motion to set aside a judgment dismissing an appeal is directed to the legal discretion of the court. Where the court entertained such amotion and granted an order directed to the adverse party, requiring him to show cause at the next term of court why the motion should not be granted, and where no service was made, and at the next term the court, for that reason, dismissed the motion, there was no abuse of discretion in so doing.</p>

<p>Peddlers. Tax. Words and Phrases. Before Judge Lawson. Putnam County. At Chambers. October 3, 1885.</p> <p>Reported in the decision.</p>

<p>In a claim case, the court instructed the jury to find a verdict in favor of the plaintiff in execution or in favor of the claimant; the jury found a verdict “for the claimant in execution.” Counsel for the claimant moved to put the verdict in form, but the court said it was already in form, and the jury dispersed, the court, however, having understood the finding to be merely in favor of the claimant. The court took a recess for dinner, and bis attention was called to the fact that the jury had meant to find for the plaintiff in execution, as stated by some of them to plaintiff’s counsel. After dinner, at the instance of plaintiff’s counsel and over objection of claimant’s counsel, tho court assembled the jury, polled them, and upon each of them stating that ho meant to find for Hie plaintiff in execution, the verdict was so altered:</p> <p>Meld, that this was error. While a verdict may be amended in m're matter of form after the jury have dispersed, yet after it has been received and recorded, and the jury have dispersed, it cannot be amended in matter of substance, either by what the jurors say they intended to find or otherwise.</p>

<p>While the original declaration in this case was confused and not as plain and distinct as the law requires, yet the amendment does set up clearly two causes of action, in that it alleges both improper and negligent rules by defendant for working the elevator where the injury sued for occurred, and the defective machinery of the elevator itself, as a negligent act of his, and ignorance thereof by the plaintiff, as the cause of the injury.</p> <p>(a.) Where knowledge is essential to charge the master, negligent ignorance is equivalent to knowledge. 2 Thomp. Neg. 994; Shear, and Eedf. Neg , 93.</p>

<p>1. No recovery can be maintained on a contract which was made in obedience to a mandatory special act of the general assembly in regard to the employment of convicts and their superintendence on the public roads of a particular county, where such special act conflicts with the general road laws of the state concerning the working of convicts on public roads, such special mandatory act having been enacted after the adoption of the constitution of 1877, ' and being in conflict with the first paragraph of the fourth section of the first article of the constitution. Code, §5027.</p> <p>2. It makes no difference in the result of such conflict with the constitution, in making the contract unconstitutional and invalid, because based upon an unconstitutional enactment, that such enactment was an amendment of a special act passed prior to the adoption of the constitution, if the amendment coerced the commissioners of the county to make the contract recovered upon by its imperious mandate, when the prior special act before the adoption of the constitution merely authorized such contract, at the option and in the discretion of the commissioners.</p> <p>3. Especially must such be the necessary sequence of the premises, when the original special act was passed in February, 1877, and the amendment made as lateas October, 18S3, more than six years thereafter, and when the contract recovered upon was not made until immediately after the compulsory amendment of 1883, and showed upon its face that such amendment forced the commissioners to act, and put in operation a special law which had remained inoperative until the mandate of the unconstitutional amendment deprived the commissioners of all option and discretion in putting the special law in operation.</p> <p>4. No contract based upon an unconstitutional law can be enforced upon any party appealing to the shield of the fundamental law; a fortiori, when such party is a political division of the state, whose agents have been forced to make the contract, the fulfilment of which that division—the county—resists behind that shield—the constitution.</p> <p>(Head notes by the court.)</p>

<p>Where the fire masters of a city employed a man at will, and not for a year or any specified time, under a resolution adopted by them, that “ instead of electing, the men be employed for the different positions subject to the will of the board,” upon his discharge, he could not recover against the city, or the members of the board of fire-masters, for his wages for the balance of the year; and such facts appearing from the plaintiff’s evidence, a nonsuit was proper.</p> <p>(a.) There being no proof of damage to character and standing, or loss of service, no verdict could have been rendered therefor, and a non-suit was right.</p> <p>(6.) It is unnecessary to consider how far the resolution of the board was restricted by the ordinance of the council.</p> <p>(e.) What was said to plaintiff by others than his employers was inadmissible; and custom could not affect his rights under his contract in this case, not being such as to enter into his contract at the time it was made.</p>

<p>The chancellor having appointed a receiver and directed that the defendant turn over to him the property in dispute, and a part of the fund having been diverted from the receiver’s custody, and there being sufficient proof to show that the defendant participated in, if he did not contrive and direct, such misappropriation and aid in placing the fund beyond the reach of the court, it was the, duty of the judge to prevent a trifling with or evasion of his authority, and an order that the defendant pay over the fund, or be committed to prison, was a mild use of the judge’s discretion.</p>

<p>1. On the trial of a claim interposed to the levy of a mortgage;?, fa. there was no error in admitting in evidence the rule nisi and rule absolute, as recorded on the minutes of the court where the trial was had.</p> <p>2. The claimant having bought with full knowledge of the mortgage lien, and having agreed to pay it, a verdict subjecting the property was required by the evidence.</p>

<p>1. There was no deficiency in the affidavit made for the foreclosure and enforcement of (his laborer’s lien, or in the execution which issued thereon, and which followed it, either as to the terms of the contract, or the time of its completion, or as to the demand made upon the defendant for payment and its refusal previous to taking out the process, or the enforcement of the liens, general and special within twelve months from the completion of the contract of labor, etc. In all these particulars, the affidavit met every requirement of the statute. Code, §1991.</p> <p>2. The special lien of the laborer on the products of his labor, as well as his general lien upon the property of his employer, was likewise pronerly set up and enforced by this proceeding, and the proper preference was given to the special liens in accordance with the law. Code, §§1975, 1974.</p> <p>3. The evidence offered by the claimant to show outstanding title to the property claimed in a third person was properly rejected. 6 Ga., 515 (h. n. 13), 529.</p> <p>(Head-notes by the court.)</p>

<p>There was no error in overruling the city court and granting a new trial o” account of the providential absence of the defendant in error from court.</p> <p>(Head-note by the court.)</p>

<p>A married woman has no ground to enjoin the/, fa. issuing upon a judgment of foreclosure of a mortgage against her, which she alleges was given as a security for the debt of her husband, unless she shows that she had a good defence to the suit, of which she was entirely ignorant, or which she was prevented from making before the judgment was rendered, either by fraud or accident, or the conduct of the other party; and such failure to set up her defence must have been unmixed with fraud or negligence on her part. The questions made by the bill were, as between the parties, res adjudicata by the judgment of foreclosure. 70 Ga., 57, 63, 475, 552; 73 Id., 477*</p>

<p>The evidence in this case was ample to sustain the conviction; and there was no error in the charge that if the prisoner fled, his flight was a circumstance that could be considered by the jury in determining his guilt, unless it was shown to he from another cause than from a sense of guilt, or was otherwise explained. 20 Qa., 156, 166; 26 Id., 276, 281; 63 Id., 170.*</p> <p>(Head-note by the court.)</p>

<p>Where an affidavit of illegality was filed to an execution based on the foreclosure of a mortgage on personal property, and the affiant neither gave bond with security for the forthcoming of the property nor made affidavit of his inability, from poverty, to do so, the affidavit of illegality was properly dismissed. Code, §§3975, 3976; 75 Ga., 676.</p>

<p>Where two verdicts have been rendered in favor of the same party-on substantially the same issues of fact, and two new trials have been granted by the presiding j udge, the rule of discretion applicable to the first grant of a new trial does not apply; and if there was nothing objectionable in the rulings of the presiding judge on the last trial, and the evidence, although conflicting, supported the second verdict, it should not be set aside. 70 Qa., 809.</p> <p>(a.) Bepresentations made by a party in possession of land as to the title thereto, on the faith of which the person to whom they were made purchased from a third party, and subsequent conduct in pursuance of such representations, would estop the party making such representations and doing such acts from attacking the title acquired by the purchaser. Code, §2966.</p>