Volume 77 — Georgia Reports

<p>-Where a widow had set apart to her as the head of the family, a homestead out of the property of her deceased husband, and, after the- grant of administration on his estate, took dower-in the same lands which had been so set apart, and allowed the administrator to sell the balance of the homestead land not included in the dower without objection, as against a judgment creditor of the widow, fhe homestead was good on behalf of herself and family, and was not rendered subject to levy, as to her life estate, by.the subsequent dower proceedings. If there were adult heirs of the decedent, the homestead would be invalid as to them, but none such appear in this case; and, while the agreed statement of facts' is unsatisfactory, the inference from it is that the heirs are minors.</p>

<p>1. Where an indictment was found in the superior court, charging the defendant with a misdemeanor, and he gave bond for his appearance to answer the charge in that court, if the case was subsequently transferred to the county court, the securities on the bond were bound for the appearance of their principal in the latter court; and, on liis failure to appear "there upon the call of the case, the county judge could proceed to forfeit the bond, if not beyond his jurisdiction in amount.</p> <p>2. Where a criminal recognizance was forfeited in- a county court, and an appeal was taken to the superior court, this suspended the judgment and opened the case to a full hearing on all the issues made, and the securities on the bond could defend against the forfeiture, .except as to costs, by showing that since the judgment in the . county court, the principal had been tried for the offense with ydiieh he was charged in the county court and acquitted.</p> <p>The evidence offered was considered as if there had been pleadirigs to authorize it, and was rejected.</p>

<p>lies Adjwlicata. Judgments. Before Judge Harris. Coweta Superior Court. September Term, 1885.</p> <p>J. H. Walthall brought suit to the September term, 1866, of Coweta superior court, against A. J. McWilliams, on a promissory note for $2,500. The defendant pleaded the general issue; that the plaintiff agreed to receive payment in Confederate money, but when tendered, he refused to accept it; and that the defendant had lost largely by the results of the war. The jury found for the plaintiff “ the return of the land,” and a j udgment was entered thereon. The case was taken to the Supreme Court by writ of error, and the judgment of the court below was affirmed by a dismissal of the case (41 Ga., 422). A writ of possession issued and was executed. The defendant entered into a written agreement with the plaintiff to attorn to him.</p> <p>The defendant then moved to set aside the judgment, on the grounds that the verdict was void for uncertainty; that the judgment was not entered up at the term when the verdict was rendered; that it did not follow the verdiet; and that the verdiet did not decide the issue- made by the' pleadings. •</p> <p>Subsequently McWilliams filed-a bill in aid of his motion' He alleged that the sheriff had notice of an intention to resist the writ of possession by affidavit of illegality; that time was asked to prepare such affidavit, but it was refused, and that complainant was compelled to sign the lease contract in order to prevent being turned out with his family at once. It was alleged also that Walthall would dispossess the complainant, under the lease unless enjoined; and it was prayed that he be so enjoined, and that the lease be cancelled and the judgment set aside.</p> <p>J. H. Walthall died, and Leonard H. Walthall et al. became executors. They -answered, denying any duress in regard to the making of the lease, and alleging that on the trial of the common law case, an amendment to the declaration was filed, or agreed to be considered filed, praying a return of; the land; and that the case was tried and evidence submitted, without objection, for equitable relief under the relief act of 1868.</p> <p>On the trial, the jury found for the defendants the possession of the land and $1,000 rents. This case was carried by writ of error to the Supreme Court, and the judgment was affirmed (65 6a., 109).</p> <p>McWilliams then brought the present • action of ejectment against Walthall et al.,. executors, who pleaded the former recovery. On the trial, they offered in evidence the records of the original action on the note and of the •equity cause. The plaintiff objected to them, on the ground that the verdict and judgment in each case was void, and because the legal issues were not the same as in this action.</p> <p>The jury found for the defendants. The plaintiff moved for a new trial, which was refused, and he excepted.</p>

<p>Administrators and Executors. Jurisdiction. Ordinary. Infancy. Constitutional Law. Before Judge Simmons. Coweta Superior Court. September Term, 1885.</p> <p>Mary E. Cook et al. filed in the court of ordinary of Coweta county their petition for a settlement with A. B. Hearn, of Campbell county, as executor of Samuel Hearn, alleging, in brief, as follows: The testator, who was their great-grandfather, died in 1850. By his will, he left the bulk of his estate to his wife for life with remainder over to several remaindermen, and at the death of the life tenant, the executor was to distribute the estate. Among the remaindermen were two grandsons of the testator, B. F. Hines and W. A. Hines, for whom the executor was made guardian and trustee. The former died in 1862, and the latter was his sole heir, there being no administration. W. A. Hines, who was the father of the plaintiffs, died in July, 1862, after his brother, 'and before the life tenant, who died in 1863. Their mother was left with three small children, and being so advised, did not take out any administration on their father’s estate, but used such amounts as she could collect for the support of herself and children. The executor of their great-grandfather never fully accounted for the interest of their father, which they alleged to be one-eighth of the estate. He made false returns, and in 1875, obtained a discharge by fraudulent returns and representations. The plaintiffs then were minors, and one of them is still a minor. Only recently have they learned of the frauds practiced by the defendant. The administration was in Coweta county.</p> <p>The case was appealed to the superior court by consent. The defendant demurred to the petition on several grounds, among them that the court of ordinary of Coweta county had no jurisdiction to call this discharged administrator to account, unless the discharge were first set aside, and because this summary proceeding is not the proper method of settling the interest of the plaintiffs in the estates of the various decedents. The demurrer was sustained, and the plaintiffs excepted.</p>

Debtor and Creditor. Partnership. Verdict. Practice m Superior Court. New Trial. Before Jacob Watson, Esq., Judge pro hao vice. Pulaski Superior Court. May Term, 1885. • E. Crockett & Sons brought complaint against Roebuck & Scarborough on an open account containing items dated from November, 1881, to April, 1882.

Trover. Bonds. Principal and Surety. Practice in Superior Court. Judgments. Practice in Supreme CourtEstoppel. Before Judge Fort. Macon Superior CourtNovember Term, 1885. On December 14, 1883, T. J. Marshall brought suit against H. H. Livingston to recover certain corn, fodder, cotton and cotton seed, and on the same day made affidavit to obtain bail process. In this he stated that the value of the property was $405.50.

<p>1. Where a son, in 1866, accepted from his father and mother a conveyance purporting to be a voluntary gift of property, on the expressed consideration of love and affection, and held it until 1884, without any effort to correct any mistake in such expressed consideration, and his parents having died in 1877, and the paper having been held to be testamentary in character, he filed a bill in 1884, alleging that the real consideration was that complainant should sell out his property in Texas, where he was living, remove to Georgia, and take care of his father and mother during their lives, and give them a decent Christian burial at their respective deaths, which he did, and that in consideration of love and affection, he had conveyed the land to his wife, who joined him in the bill, equity will not grant relief by correcting the original conveyance after such a lapse of time, nor by decreeing a specific performance.</p> <p>(a.) If the deed was amere voluntary conveyance, a mistake in it will not be corrected against heirs of the gianior, nor will a specific performance of it, when corrected, be decreed.</p> <p>2, In order to recover damages in lieu of a specific performance, when the latter cannot be had because the party has put it beyond his power by his conduct, it is essential that a case for specific performance should be made out, so as to give equity jurisdiction of the subject-matter; otherwise the courts of law will have jurisdietion and can relieve; and if the account which made the consideration of a promised deed he out of date, equity will not seize jurisdiction to put it within date. If equity had jurisdiction for the purpose of correcting a mistake in the contract and compelling a specific performance, it would decree damages in lieu of, property which could not he returned in kind.</p> <p>(a.) In this case, it appears that the complainant did not perform his part of the contract sought to he enforced, but that he kept accounts against his parents, swore to them, and presented them to his father’s administrator.</p> <p>(5.) In order to have a specific performance, the complainant must make a clear case, and the contract he sets up must be specific. Where the allegations of the bill were uncertain, confused and contradictory, the bill was demurrable.</p> <p>(c.) This case differs from those in 23 Qa., 431; 28 Id., 61.</p> <p>3. The statute requires that an affidavit in forma pauperis, made for the purpose of carrying the case to the Supremo Court, shall state - in the alternative the inability of the excepting party to give bond or pay costs. This requirement is not met by an affidavit stating conjunctively tho inability of the plaintiff in error to pay the costs and give the bond for tho eventual condemnation money, as required by law; and such an affidavit does not relieve counsel for the plaintiff in error from responsibility for the costs in this court. (Rep.)</p>

<p>[Blandford, J., being disqualified, Judge Clarke, of the Atlanta circuit, presided in his stead. J</p> <p>As a general rule, the construction of a contract is a question for the court; but where the terms of a written instrument are ambiguous, its meaning should be left to the jury.</p> <p>(a.) The stockholders of a railroad entered into an agreement to sell the road to one Logan, through his agent, Garrard, for $100,000, providing in the agreement that it should remain binding for only thirty days, and that, in the event of the sale, the stockholders should execute quit-claim deeds to all their right, title and interest. The contract was dated April 12,1881. On May 12, it was extended for thirty days, it being stated that O the option for the sale and purchase of our stock in said railroad” was extended. No sale having been completed to Logan, and the stockholders still desiring to sell, they gave to one Dexter the following agreement: “ We, the undersigned stockholders in the Columbus and Rome Railroad Company, do hereby extend the option on sale of Columbus and Rome Railroad heretofore granted to Louis P. Garrard, on April 12,1881, and expiring on June 12,1881, to Armory Dexter, to commence on the 12th day of June, and to expire on the 12th day of July, 1881:”</p> <p>Held, that this agreement was not ambiguous, and was properly construed by the court. It fixed the price by reference to the former agreement, and under it Dexter could either buy for himself or another, provided he paid that price.</p> <p>(6.) In construing contracts, it is important to look to the substantia] purpose which must be supposed to have influenced the minds oí the parties, rather than at the details of making such purpose effectual.</p>

<p>Principal and Surety. Fraud. Before Judge Cars-well. Jefferson Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

Deeds. Evidence. Levy and Sale. Before Judge Fort. Schley Superior Court. September Term, 1885.

<p>Under §3293 of the Code, an attachment cannot issue until the debt is due, and where it was not so alleged, there was no error in dismissing the attachment.</p>

Justice Courts. Judgments. Judge. Before Judge Hutchjks. Walton Superior-Court. August Term, 1885 A fi'. fa. issuing from a justice’s court was levied on certain property, and the defendant interposed an affidavit of illegality.

<p>Garnishment. Principal and Surety. Estoppel. Before Judge Simmons. Floyd Superior Court. March Term, 1885.</p> <p>Reported in the decision.</p>

<p>New Trial. Practice in Superior Court. Certiorari. Before Judge Hutchins. Walton Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

<p>Principal and Agent. Factors. Yen dor and Purchaser. Sales. Before Judge Kibbee. Houston Superior Court. October Term, 1885.</p> <p>Ruan brought suit against Gunn on an open account for guano. The defendant pleaded, among other things, that he had not bought the guano from the plaintiff, but from C. D. Anderson & Son, who were warehousemen, and who acted as principals and owners in making the sale to defendant,- and were so believed to be by him; that no other principal was disclosed; that Anderson & Son were indebted to him, and it was his understanding and expectation that the price of the guano should be credited on this claim, and this was known both to Anderson & Son and Ruan. Several claims against Anderson & Son were pleaded as a set-off.</p> <p>On the trial, the jury found for the defendant. Plaintiff moved for a new trial on the ground that the verdict was contrary to law and the evidence. The motion was overruled, and plaintiff excepted.</p>

Verdict. New Trial. Before Judge Harden. City-Court of Savannah. July Term, 1885. Hazzard brought suit against the Mayor, etc., of Savannah to recover for a personal injury, caused by falling over certain lumber which was lying in a street, and which projected over the edge of the sidewalk.

<p>S. obtained a common law judgment against F., and caused the,/?. fa. issued thereunder to be levied on certain cotton. L. foreclosed a landlord’s lien for rent against F., and caused it to be levied on the cotton. F. replevied the property levied on, giving a forthcoming bond with L. as surety thereon. On the day of sale, the property was not forthcoming, and the constable, to whom the bond was payable, brought his action for the use of S, and recovered judgment against F. as principal and L. as surety. L. paid the money due on the judgment to the sheriff, and gave him notice that he claimed it on his lien for rent, which had been foreclosed:</p> <p>Eeld, that on a rule to distribute the fund, it was properly awarded to S. in preference to the lien of L.</p>

<p>Res Adjwlicata. Equitable Pleadings. Words and Phrases. Decrees. New Trial. Before Judge Lumpkin. Hancock Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

<p>1. There is nothing in the general grounds of the motion for a now trial in this case.</p> <p>2. Although a charge of the court excepted to, if taken alone, may he objectionable, yet if, when considered in the light of the whole charge, it is harmless, it will not constitute an error which will require a reversal.</p>

Principal and Agent-. Brokers. Contracts. Before Judge Hammond. Pulton Superior Court. September Term, 1885. Preston Gumming & Company brought an action of complaint on an open account against Clark & Nunnally to recover $291.30, alleged to be a balance due them on a sale of peanuts by the defendants.

<p>Where, on the trial of an indictment for hog-stealing, the evidence showed that the prosecutor lost several hogs which had been marked; that he found them in the defendant’s pen near his house; that they had been re-marked, and an attempt made to entirely obliterate the marks of the prosecutor, though some of his marks remained, and they were identified as belonging to the prosecutor, a verdict of guilty was supported by the evidence.</p>

Railroads. Damages. Negligence. Nonsuit. New Trial. Before Judge Branham. Floyd Superior Court. September Term, 1885.

<p>Railroads. Damages. Negligence. New Trial. Before Judge Stewart. Newton Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

Res Ad judicata. Practice in Supreme Court. Verdict. Before Judge Hutchins. Clarke Superior Court. October Adjourned Term, 1885. This case will be found reported in 75 6s®., 718, where the Supreme Court reversed the judgment of the court below, holding that a verdict for the defendant was contrary to law and evidence. On the last trial, the jury found for the plaintiff $7,500.

<p>Witness. Evidence. Before Judge Willis. Chattahoochee Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

Railroads. Damages. Negligence. Before Judge Eain. Dade Superior Court. September Term, 1885. John B. Wilkinson and his wife brought their action against the Alabama Great Southern Railroad Company, alleging, in brief, as follows: On March 36, 1882, Mrs. Wilkinson purchased a ticket entitling her to be carried from one station to another on the line of the defendant’s road. She entered the car, carrying with her, by consent of the conductor, her two infant children.

<p>Practice in Superior Court. Charge of Court. Before Judge Eichard H. Clark. DeKalb Superior Court. September Term, 1885.</p> <p>The facts are stated in the head-note.</p>

Landlord and Tenant. Liens. Distress Warrant. Before Judge Branham. Polk Superior Court. August Term, 1885.

<p>New Trial. Evidence. Verdict. Before Judge Lump-kin. Hancock Superior Court. October Term, 1885.</p> <p>Reported in the decision.</p>

<p>The plaintiff brought an action for damages against the defendant for a personal injury received from the falling of a derrick used in the digging of a well for the defendant. The testimony for the plaintiff was, in brief, as follows: He was in the employment of the defendant as an ordinary railroad hand; one Palmer employed him; Palmer and his son superintended the work on that section. The hands were engaged in digging a well for the defendant, and for that purpose used the derrick. The plaintiff had not been there on Monday, but on Tuesday morning, he went to work with the others. The younger Palmer, who had charge of the hands, ordered the plaintiff to go up on the derrick and unscrew one of the guy-poles. The plaintiff stated that he had heard some of the hands say that the guy-pole had been cracked on the day before, and asked if it was so, and if there was .any danger in going up. Palmer replied with an oath that it was none of the plaintiff's business ; that there was no danger at all, and if ho did not do as directed, he could leave there at once. The plaintiff went up carefully and unscrewed a nut from the pole, but had not taken out the pieces thatheldit, whenihe guy-pole broke some distance below, and the whole derrick fell, throwing the plaintiff about twenty feet and injuring him. The plaintiff did not know that either of the guy-poles had been cracked, but he heard some one say that one of them had been damaged, and therefore asked the “boss ” if it was so. A witness for the plaintiff stated that the younger Palmer, the “boss,” knewthat the guy-pole was cracked, and that the pole broke at the point where it was cracked:</p> <p>.Held, that it was error to grant a nonsuit. The evidence certainly had a tendency to show negligence on the part of the defendant, and the case should have been- submitted to the jury.</p>

<p>Levy and Sale, Illegality. Damages. Process. Before Judge Port. Macon Superior Court. November Term, 1885.</p> <p>A fi. fa. from the county court of Macon county was levied on certain land pointed out by the defendant. This levy was subsequently dismissed by the levying officer by order of the plaintiffs, and another levy was made on personalty. The defendant filed an affidavit of illegality on the grounds (1) of a partial payment to the plaintiffs’ attorney, for which no credit was allowed; and (2) of the former levy and its dismissal and re-levy.</p> <p>This affidavit, on demurrer, was dismissed by the county judge. The case was carried to the superior court by certiorari, and the decision of the countyjudge was affirmed. The defendant excepted.</p>

<p>1. When this case was formerly before the Supreme Court (73 Ga., 477), it was held that a married woman was bound by a judgment •against herself and her husband, and that if she had any defence to the suit, she should have urged it before the judgment was entered.</p> <p>2. The feme covert having pleaded that there was no legal service upon her, or notice to her of the suit in which the judgment was rendered against her and her husband, and the jury having found in her favor, and the presiding judge having granted a first new trial on account of newly-discovered evidence to show her domicile, this court will not interfere with his discretion in so doing.</p> <p>(a.) Where the husband and wife were living together, the law made his domicile hers.</p> <p>3. Where a motion for new trial was made on several grounds, and was granted on one of them only, the others thereby being impliedly overruled, and exception was taken to the grant of the motion, a cross-bill of exceptions would seem to be necessary in order to have the question made by the overruled grounds considered.</p> <p>(a.) Had this been done, laches in failing to traverse the return of the sheriff at the next term of the court rendering the 'udgment after she had notice thereof would appear.</p>

<p>New Trial. Witness. Experts. .Before Judge Lumpkin. Wilkes Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

<p>Principal and Surety. Practice in Supreme Court. Damages. Before Judge Fain. Bartow Superior Court. July Adjourned Term, 1885.</p> <p>Reported in tbe decision.</p>

<p>1. The presiding judge did not abuse bis discretion in refusing to grant a new trial, after there had been three verdicts in favor of the defendant, in a case where the evidence was directly conflicting on all of the material issues.</p> <p>2. Although an error is assigned in a ground of a motion for new trial because the court rejected a transcript from certain books, which was furnished'by a witness in response to a subpoena duces tecum, in compliance with §3517 of the Code, yet when the transcript so rejected is not set out nor the ground of its rejection shown, it is impossible for this court to determine whether it was pertinent and relevant evidence.</p>

<p>Practice in Supreme Court. Practice in Superior Court. New Trial. Before Judge Carswell. Johnson Superior Court. September Term, 1885.</p> <p>Reported in the decision.</p>

<p>There was no error in charging that, in order to make the homicide for which the defendant was tried murder, it must have been committed with malice aforethought; “ that is, it must exist prior to the killing; it is not necessary that it should exist for any considerable length of time; if it exists a moment before the killing, it is malice aforethought in law.”</p> <p>(a.) The charge of the presiding judge in this case fully and fairly submitted all the law applicable to the case, and it is not denied that the evidence sustained, if it did not require, the verdict.</p>

<p>It is well settled that the first grant of a new trial, whether upon motion or certiorari, will not he disturbed wherever there is a conflict of evidence on material questions, and it is not made plainly to appear that the judge has abused his discretion in the judgment rendered.</p>

<p>Where at the end of a note were the words, “Signed and sealed,” followed by the signature of the maker and a scroll for a seal, with the letters “L. S.” written across it, this was equivalent to the words, “witness my hand and seal,” followed in the same way, and the paper was a sealed instrument under §2915 of the Code. .</p>

<p>Although the preponderance of the evidence may appear to be against the verdict, yet where there is enough to support the finding, and the presiding judge refuses to grant a now trial on the ground that the verdict is contrary to law and evidence, this court will not interfere to control his discretion.</p>

<p>1. The evidence required, defendant’s conviction for gaming. The boy who waited on the owner of the chip's brought him two stacks; two of those with whom he played had paid for their chips, and though the police broke up the game before he had paid for his, yet when he won some of theirs or lost some of his to them, he gambled by betting at the game of poker. That he got them on credit is apparent from these facts, and that they represented money is proved by two witnesses.</p> <p>2. Any time within two years the state may prove that he played the game of poker at thi^ place of gambling. It is not confined to the particular day charged in the accusation.</p> <p>3. The charge of the court is the law of the case; and if it were not, as the evidence required the verdict, error in the charge would not operate to give the defendant a new trial, because another trial could not change the result.</p> <p>Judgment affirmed. (Head-notes by the court.)</p>

<p>1. Where the superior court has awarded a nonsuit upon the eround that tiie evidence did not authorize a verdict for the plaintiff, and this judgment was reversed by the Supreme Court, and upon the trial of the case a verdict was rendered for the plaintiff, it is error for the superior court to grant a new trial on the ground that the verdict is contrary to and without evidence to support it, the facts being substantially the same on the last trial as they were when the' nonsuit was granted.</p> <p>2. Where a railroad company leaves a dangerous machine, such as a turn-table, unfastened in a city, on a lot which is not securely inclosed, and where people and children are wont to visit it and pass through it, this is negligence on the part of such company; and where an infant of ten or twelve years of age resorted to the turntable, and in riding upon it was dangerously and seriously injured, the railroad company is liable for damages for such injuries to the infant.</p> <p>3. And this is so, notwithstanding the father of the infant permitted her to go near the turn-table to carry breakfast to a minor brother, who had been left by the father to protect other property of the company than the turn-table. The fault of the father, if any, is not attributed to the infant, the action being brought by the infant hersel f.</p> <p>Judgment in main case reversed; affirmed on cross-bill of exceptions. (Head-notes by the court.)</p>

License. Notice. Turpentine. Before Judge Kibbee. Dodge Superior Court. November Term, 1885. Carr brought an action of trespass against Colcord and Bacon, alleging that the defendants entered on certain land which the plaintiff held under a lease and used for malting turpentine, and by cutting down trees and. hauling them away destroyed his turpentine, etc. The defendants pleaded the general issue.

<p>The name o£ one Jones was on the panel o£ jurors put upon the prisoner. One Jobson served in his place, and when the name of the former was called, the latter answered, and served on the jury trying the defendant. After conviction, a new trial was moved for, and the defendant and his counsel made affidavits that they did not discover the substitution until áfter the trial; that the original and substituted jurors were both unknown to them; but, from inquiry as to both, counsel stated that he was satisfied that Jones would have been acceptable to them, while Jobson would not:</p> <p>Held, that a new trial should have been granted.</p>

Assignments. Laws. Before Judge Branham. Floyd County. At Chambers, December 1, 1886. Held: claimed or owned by him now at the time of executing the foregoing deed or instrument of assignment.”

<p>Administrators and Executors. Executor de son tort. Partnership. Before Judge Richard H. Clark. Clayton Superior Court. March Adjourned Term, 1S86.</p> <p>Lois Cloud brought suit against W. H. H. Morrow and Ella 0. Morrow, as executors in their own wrong of .the estate of 0. A. Key, deceased, on an account for services by the plaintiff to the deceased as a teacher. The defendants pleaded the general issue, and that they were not executors in their own wrong. On the trial, the plaintiff showed that Key was the principal of the Middle Georgia College; that he had employed the plaintiff as a teacher at a stipulated price; that he had paid only a part of the amount due her; that he had left a policy of insurance on his life, which Morrow had collected, and a will which had been probated, but no letters thereunder had been issued to either of the defendants.</p> <p>It appeared from the evidence for the defendants that Key, who was a brother of Mrs. Morrow, had his life insured in the Knights of Honor, and took a certificate or policy payable to himself or to his will; that sometime before his death, he handed it to his brother-in-law, Morrow, and being unable to pay the assessments himself, asked Morrow to do so; that some, time thereafter, he made a will, leaving his property, after paying his debts, to his sister, Mrs. Morrow, and mentioning this policy; that he placed the two papers in an envelope and handed them back to Morrow; that after his death, Morrow collected the amount due on the policy; that a silver watch he owned was delivered to his brother, in accordance with his wish expressed before death; and that there were several volumes of books left which remained in Morrow’s hands. The defendant showed further that Key was president of the Middle Georgia College; that a Mrs. Fields was principal of the female department; and that Key was to pay all expenses and salaries of teachers, and of the balance remaining, he was to have two-thirds and Mrs. Fields; the other third.</p> <p>The jury found for the plaintiff against W. H. H. Morrow $105 principal. This defendant moved for a new trial on the following grounds :</p> <p>(1), (2.) Because the verdict was contrary to law and; .evidence.</p> <p>(3.) Because the court erred in the following charge to-the jury : That the defendant set up as a defence that C.. A. Key and Mrs. Fields were partners in the school; and if it was true, it would be a good defence; but to establish-a partnership, the jury must believe from the evidence-that Mrs. Fields was wholly or proportionally liable for the losses. An interest in the profits only as compensation for services does not make such person a partner;; and if the jury believe from the evidence that C. A. Key was elected president of Middle Georgia College, and Mrs. Fields, principal of the female department, and C. A. Key, as such president, hired plaintiff to teach at a stipulated price, to-wit, thirty dollars per month, and Key was to pay out of the proceeds of the school whatever was necessary for assistance or other expenses of the school, and then, as to what was left, was to divide equally or in any other proportional way with Mrs. Fields -the balance of the proceeds of the school, then that would not make them partners, and they must so find; but if, on the other hand, Mrs. Fields did not share a proportional interest for her services only, or was liable for the losses, that would make her a partner, and if a partner, they could not find for plaintiff.</p> <p>(4.) Because the court erred in the following charge to the jury, the evidence not authorizing any such charge: That if Key, when he died, left any books or watch, and ■defendant kept them as his own, or gave them away to Ney’s brother or any one else, then defendants would be ■executors de son tort, or executor in their own wrong, and therefore would bo liable to plaintiff in double the value -of ¡said books and watch, and it would be their duty to so .find.; but if, on the other hand, they did not believe there was ¡such watch or books, and that defendants made a disposition of them, then they would not be liable, or executor de son tort, and as to such losses they would find for -defendant.</p> <p>(5.) Because the court erred in charging the jury as follows : That if defendant, Morrow, collected accounts from the books of the school, but collected them for Mrs.Fields, .and by her direction, then that would not make him liable as executor de son tort, because she would have an interest in the accounts contained in the books ■under the contract with Key, if the jury believed there was a contract, whether they believed the contract made .her a partner or not.</p> <p>(6.) Because the court erred in the following charge and instructions to the jury: That if C. A. Key was a member .of -the .Knights of Honor in his lifetime, and held a benefit certificate in the nature of an insurance policy for $2,000.00, that would be in law a chose in action, and unless lie transferred that to the defendant in writing before his death, then it would go into Key’s estate after his death, and therefore would be liable to be administered upon; and if the defendants took it and collected the money on it after his death and paid it out, either in whole or in part, then they would be liable as executors in their own wrong, and it would be their duty to so find; but if, on the other hand, this action by defendant as charged is not believed by the jury from the evidence, then as to such he would not be liable as executor de son tort, and they should find for defendant. [The court added the following note:</p> <p>“ The court charged the jury upon all the issues of the case, so far as warranted by the evidence; and in his charge said to the jury that each defendant was bound only by his or her own act, and if they did not believe from the evidence that Mrs. Morrow did any act which made her an executor de son tort, then they should find in her favor in their verdict, provided they should find against Morrow under the charge I had given, as applied to the evidence; but if they found in favorof both, then they shouldfind generally in favor of defendants.”]</p> <p>The motion was overruled, and defendant excepted.</p>

<p>1. The act of October 16, 1885 (Acts 1884-5’, p. 98), regulating the practice in cases referred to masters in chancery or auditors, and as to exceptions filed to their reports, is not in conflict with the section of the constitution which provides that the right of trial by jury shall remain inviolate.</p> <p>{a.) The interposition of juries in the trial of chancery cases is purely a matter of legislative regulation, and originated in this state in the judiciary act of 1799. It is not a constitutional right or one guaranteed by Magna Oharta.</p> <p>2. There were no exceptions of fact iu this case, but all the exceptions went to the conclusions of the master in chancery, drawn from the facts reported, and the result reached was sustained by the law applicable to the facts in evidence.</p> <p>(a.) One creditor of a common debtor, who delayed in collecting his debt, waited until another creditor had foreclosed a mortgage against the debtor, and then sought to assist the debtor in obtaining an extension of time by paying a part of the mortgage debt, could not set aside the judgment against the debtor, except for fraud affecting his rights, without negligence on her part; and the allegation that there was usury in the original mortgage debt was not alone sufficient to establish fraud which would avoid the judgment.</p> <p>(6.) No other conclusion could have been reached in this case than that reported by the master and approved by the court.</p> <p>Jackson, C. J., dissented as to the construction to be given to the act of 1885, considered in the light of the constitution.</p>

<p>Practice in Supreme Court. Jurisdiction. Alimony. Before Judge Simmons. Bibb County. At Chambers, December 4, 1886.</p> <p>Reported in the decision.</p>

<p>1. Where a bill was filed against an administratrix and the sureties on her bond, and a decree rendered against the defendants, it furnished no ground of illegality on behalf of one of the sureties that the execution issued under such a decree, directed the money to be first made out of the estate and the individual property of the administratrix, and then from the property of the sureties. Such a direction was to the benefit of the sureties.</p> <p>(a.) The execution in this case substantially followed the decree.</p> <p>(. 6.) An affidavit of illegality cannot go behind the decree.</p> <p>(c.) There being before the court, who tried the case without a jury, entries of nulla bona as to the property of the estate and of the administratrix, the ground of illegality by one of the sureties that the affiant believes that there was and is property enough to make the money out of the estates, but that the neglect of the administratrix caused its loss, without designating any such property, was properly overruled.</p> <p>2. A ground of illegality by such a surety which alleged that the administratrix was dead; that, since her death, the plaintiff in fi. fa. had, without authority of law, wrongfully intermeddled with her estate, and had converted to his own use certain named property thereof, of sufficient value to pay the decree, and that the surety was entitled to have a credit on they?, fa. therefor was good, and should not have been dismissed.</p> <p>(a.) The surety will not be compelled to go-into equity to set up such defence, but may do so by affidavit of illegality.</p> <p>(6.) Such a surety is within the spirit of §2441 of the Code, and will be entitled to have'at least the value of the property converted applied in extinguishment of the fi. fa.; and it seems that he would be entitled to have double the value of the property so applied.</p>

<p>Homestead. Debtor and Creditor. Before Judge Kibbee. Dodge Superior Court. August Term, 1886.</p> <p>B. II. Harrell and W. W. Harrell filed their bill, alleging, in brief, as follows: A fi.fa. in favor of B. H. Harrell against W. L. Harrell was levied on certain personalty, which was sold at a constable’s sale, and complainants became the purchasers. At the time of the sale, an application by thedebtor as the head of a family, for an exemption of personalty, was pending before the ordinary, covering the property sold. It was afterwards set apart. W. L. Harrell having died, his widow, Leah Harrell, on behalf of herself and other beneficiaries of the homestead estate, brought trover against defendants for the property and recovered a money verdict. A fi. fa. was issued, and it has been levied on the property of the complainant, B. H. Harrell, which has been advertised for sale. Mrs. Harrell and the other beneficiaries of the homestead estate are insolvent, and to pay the money to them would hazard its loss. Complainants claim that they obtained a title to the property subject to the homestead estate and have the same interest in the money representing it. They pray for its investment, under order of the court; for a receiver; and that the-defendant and the sheriff be enjoined from proceeding to-sell under the fi.fa. levied on B. H. Harrell’s property. Discovery was waived.</p> <p>It is unnecessary to set out the answer. The chancellor-granted the injunction, but refused the receiver, and the-defendants excepted.</p>

<p>Certiorari. Before Judge Harris. Dougias Superior Court. January Term, 1886.</p> <p>Reported in the decision.</p>

Judgments. Actions. Abatement. Parties. Torts. Before Judge Adams. Chatham Superior Court. June Term, 1886. Ellen O’Brien brought suit against the Skidaway Shell-Road Company to recover damages for a personal injury resulting from falling into a ditch, alleged to have been unlawfully dug by the defendant, and on the trial, she recovered a verdict for $1,000. A motion for a new trial was made, and after argument, the court reserved his decision. After this the plaintiff died.

<p>Where a person died indebted to divers persons, some of whom claimed priority over others in the payment of their debts, and the administrator, in the exercise of his discretion, continued the business of the decedent until the expiration of the then current year, during which it became necessary, as he alleged, to contract debts to enable him to carry on the business properly; and where suits were pending against him at the instance of some of the creditors holding claims against the intestate, and also at the instance of others on account of indebtedness incurred by the administrator in carrying on the business of the estate, the facts made a proper case for a bill to marshal the assets of the estate, and the holders of debts existing against the estate at the time of the death of the intestate should have been enjoined from proceeding until there could be a settlement of the accounts of the administrator, including not only the ordinary expenses of administration, but the allowance of any liabilities incurred by the administrator in conducting the business of the decedent during the remainder of the year in which he died.</p> <p>(a.) The administrator had no authority to contract with those holding claims incurred in carrying on the business of the decedent so as to bind the estate; but he became individually liable to them, and they should not be enjoined from prosecuting their demand's against him individually. He would be entitled to charge the es_ tate with such liabilities, and to have all or such parts of them allowed him as he may be able to show were proper and necessary to carry on the business for which they were contracted. The rank and dignity of these claims he may litigate with the creditors of the intestate, and the amount and rank of their respective claims may be ascertained and fixed by decree.</p>

<p>Courts. Practice in Superior Court. Witness. Subpoena. Jury and Jurors. Criminal Law. Before Judge Adams. Chatham Superior Court. March Term, 1886.</p> <p>Five subpoenas duces tecum, were issued by the clerk of the superior court of Chatham county, November 17,1885, directed to “Honorable Rufus E. Lester, mayor of the city of Savannah,” calling upon him to be and appear at the superior court and to bring with him a certain book or docket, known as the information docket of the city council of Savannah, used during the months of September and October, 1885, and also the book or docket containing the disposition of cases tried before the mayor, to be used as evidence by the state in certain cases pending before the grand jury. Four of these stated the cases in which testimony was desired, while the fifth merely stated that it was in certain cases, without naming them. They were served, and upon the failure of the mayor to comply with their requirements, a rule nisi was issued against him, calling on him to show cause why he should not be attached for contempt. He answered that the statutory provision upon which these subpoenas were based contemplated civil cases and not criminal proceedings before the grand jury; that when they were issued, none of the cases were pending cases; that the grand jury had not been organized and was not organized until the first Monday in December thereafter; that the subpoenas did not show that the evidence was material, and it was neither material nor admissible ; that the mayor of Savannah is the presiding officer and judge of the police court of that city, which is made by statute a court of record; and that one court of record has no authority to compel, by subpoena, the production before it of the original records of another; and that the subpoenas were not issued upon the order of the' judge nor of the grand jury, but by the clerk solely on request of the solicitor-general.</p> <p>The court held that the subpoenas were legally issued,, and refused to discharge the rule, and the respondent excepted.</p>

Administrators and Executors. Parties. Abatement. Actions. Before Judge Adams. Chatham Superior Court. June Term, 1886. G. B. Lamar died in New York, leaving a will which was admitted to record in that state on November 10,1874, as a will of personal property only, and letters testamentary were issued to G. DeRosset Lamar, who was appointed executor by the will.

Actions. Pleadings. Banks. Principal and Agent. Before Judge Van Epps. City Court of Atlanta. March Term, 1886. J. L. Dickey & Company brought suit against Henry 0. Leonard for $358.85.

<p>1. The superintendent of a plantation has no more right to terrify the laborers under him, and their families, than they have to terrify him and his family. And this is so, regardless of the color of the respective parties. All races and all classes are alike bound to keep the peace and observe the laws.</p> <p>2. Where the superintendent, after profanely reprimanding two of his laborers, went armed to the house of one of them, the latter, with his wife and children, being within, and discharged his gun into or by the window, and then, upon seeing the two men walking with their guns towards the public road (they most probably intending to go to the owner of the plantation and report what had taken place), pursued them, and, after they had reached the road and taken shelter behind a tree, shot at them, hitting one of them in the face, if they also shot at him in the same moment, this shooting on their part was justifiable.</p> <p>3. If, immediately afterwards, the one who had been shot in the face called out to the other to shoot, and the other did not shoot, but rushed to the place where the superintendent was standing, and drew his gun to strike and threatened to kill, but was prevented from striking by the by- standers, he did not by this conduct render himself responsible for shooting, which was subsequently done by his wounded comrade when the superintendent had changed his position and was retiring.</p> <p>4. As the evidence, fairly construed, furnishes no ground for any theory of a common enterprise or purpose which was not defensive in its nature and design, or which embraced any attack upon the prosecutor after he had ceased to face to the front and occupy an offensive attitude, it was error to charge the jury as to 'the responsibility incurred by persons who participate in a common enterprise or purpose to make an unlawful attack.</p> <p>5. A common purpose, formed suddenly in an emergency, to defend with even too much force and violence, will not render one participant responsible for offensive acts done by the other alone after defence has been accomplished, and whilst the original assailant is retreating from the scene of conflict.</p>

Practice in Superior Court. Fraud. Contracts. Principal and Surety. Justice Courts. Appeal. Certiorari. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886. This case arose on a certiorari.

Officers. County Matters. Treasurer. Evidence. Principal and Surety. Before Judge Harris. Douglas Superior Court. January Term, 1886. On April 7,1885, the ordinary of Douglas county issued an execution against D. W. Price, the former treasurer of that county, and the sureties on his bond.

Libel. Privileged Communications. Before Judge Van Epps. City Court of Atlanta. June Term, 1S86. James Johnson brought suit against the Bradstreet Company to recover damages for a libel. The evidence is sufficiently stated in the decision. On the trial, the jury found for the defendant.

Practice in Superior Court. New Trial. Interrogatories. Evidence. Contracts. Yerdict. Before Judge Mershon. Glynn Superior Court. December Adjourned Term, 1885. W. O. DePauw brought an action of complaint against A. Kaiser & Brother to recover on an open account for certain glass sold to the defendants, aggregating $1,304.10.

Evidence. Practice in Superior Court. Practice in Supreme Court. Charge of Court. Negligence. Roads and Bridges. Before Judge Bower. Dougherty Superior Court. April Term, 1886. This case will be found reported in 63 Ga. 488, and 74 Id. 469. On the last trial, the jury found for the plaintiff $10,000.

<p>Damages. Actions.- Criminal' Law. Interrogatories. Witn^s. Practice -in Superior -Court. Evidence. New Trial.' Verdict. Practice in Supreme Court. .Before Judge Roney. Richmond Superior Court. April Term,’ 188(5.</p> <p>To the report contained in the decision, it is necessary to add only the following, which were, in substance, the grounds of the motion for a new trial:</p> <p>(1.) Because the court overruled a motion to strike the plaintiffs’ declaration on the ground that the allegations therein made a case of criminal negligence amounting to a felony, and contained no averment of any prosecution • commenced' previously or concurrently with the filing of the writ; and also because the court refused to charge the jury that aggravating circumstances cannot be found to exist unless such as would make the driver liable to conviction for criminal negligence; and that, unless such criminal negligence is prosecuted for before, or. simultaneously with, the commencement of the suit, there can bo no recovery by plaintiffs, unless the jury find such negligence was not a crime.</p> <p>(2.) Because the court overruled the motion of the defendant, made before the empanelling of any jury, to have the case tried before a special jury, a new trial having been granted to the defendant May 2,1885, the court stating, as to such motions, they were to be granted only in his discretion, and the only case where he had permitted it was where there had been a verdict of two juries, and a third trial was had.</p> <p>(3.) Because the court overruled the objection of defendant’s attorneys to the execution of the interrogatories taken out by the plaintiffs for the examination of Mrs. Powell; — the ground of objection being that this plaintiff had failed to answer the first cross-interrogatory as to her physical ability to attend court. [The cross-interrogatory and answer were as follows: “ Are you not able to attend the court in person, and is not your examination by interrogatories of your own seeking.?,” (A.) “The examination at my house is of my own seeking. I have never been in a court-house, and fear that I could not attend as a witness personally, as the surroundings would excite me so that I could not answer the questions which might be propounded to me, intelligently.”]</p> <p>(4.) Because the court admitted in evidence the answer of Mrs. Nathan Davis to the direct interrogatoy which had been objected to at the time the interrogatories were crossed and the same renewed when the testimony was offered. [The following were the 3d and 4th interrogatories objected to as leading: “ What, if anything, happened to Mrs. Powell in the course of her illness ? Did she, or not, suffer an abortion or miscarriage ? If you answer that she did, state particularly what consequences, if any, followed said abortion or miscarriage. — State whether or not flooding, and to what extent, was caused by said abortion or miscarriage, and how long it continued, and its effect upon Mrs. Powell.”] .</p> <p>(5.) Because the court allowed, over the objection of defendant’s attorneys, the testimony of the witness, Dr. Baker, as to the condition of Mrs. Powell after the commencement of this suit, and particularly as set out in the' brief of evidence.</p> <p>(6.) Because the court refused to allow the introduction, in behalf of defendant, from E. G. Mosher, superintendent, the statements of Francis L. Dye, father of Mrs. Powell, who was shown by the testimony to have been present at the time of the alleged injury, and who was the first to report the circumstances thereof to this witness four days after the alleged occurrence. — The ground of objection, which was sustained by the court, was that the witness was dead ; while the defendant claimed the testimony to be admissible, in view of the testimony already in'with reference to the interview had between Powell, the father of the husband, and Patrick Walsh, the president of the defendant, with the knowledge and sanction of the plain.tiff and her husband, and also to rebut the presumption of negligence, and to show why ho action was had with reference to the driver of the car on that' occasion.</p> <p>(7.) Because the court refused to charge the jury that injuries to the maternal hopes and anticipations from miscarriage of the plaintiff, cannot be considered .by the j ury in estimating damages.</p> <p>(8), (9) and (10.) Because the verdict was contrary to certain specified charges of the court, and to the evidence and the principles of justice and equity.</p> <p>(11.) Because the verdict was excessive.</p> <p>(12.) Because the court overruled the objection to the testimony of Dr. Baker as to future injuries of Mrs. Powell, particularly as to the future consequences of miscarriage and abortion, and in allowing the question, “ How would those troubles affect the nervous system; those troubles that grow out of a violent injury, causing abortion?” the answer being, “ Those internal injuries to the womb would affect the nervous system then and afterwards. Afterwards they might affect it seriously and might not. I don’t know that there is necessarily any affection to the nervous system, or any serious affection, but there might be, and those injuries would be of that character.” The ground of objection was that the witness was called upon .to testify as to the dicta or opinions of the profession gen. ■erally as to the general effect of miscarriage, and not confined by the court to injurious effect to the plaintiff, and the plaintiff’s pleadings did not authorize a recovery for such future injuries to Mrs. Powell.</p> <p>(13.) Because the court admitted, over the objection of defendant’s attorney, the mortuary table, as published in 70 Ga. 845, the ground of objection being that they were not material or admissible under the pleadings.</p> <p>The court overruled all the grounds except the eleventh, but granted a new trial on that one; and to.this the plaintiffs excepted. The defendant filed a cross-bill of exceptions, alleging error in the overruling of the other grounds.</p>

<p>Evidence. Master and Servant. Railroads. Principal and Agent. Comity of States. Statute of Limitations. Charge of Court. Construction. Before Judge' Yan Epps. City Court of Atlanta. June Term, 1886.</p> <p>Fred. Krogg brought an action for damages against the Atlanta and West Point Railroad Company and the Western Railway of Alabama, alleging, in brief, as follows: In 1882, he was employed in Atlanta by the defendants jointly as a locomotive engineer to run between Atlanta and Montgomery on the line formed by the roads of the two defendants. While thus running, on March 2,1883, his engine was thrown from the track at or near Cusseta, Alabama, without fault on his part, and he was. permanently injured, etc. The negligence of the defendants, consisted in having the elevation of the curve at the point too high for safety, and in having a broken rail and rotten cróss-ties. The track was otherwise in an unsafe condi-. tion, and the defendants and their agents were negligent.</p> <p>On the trial, the evidence was voluminous and need not be set out in detail. So far as necessary to illustrate the assignments of error, that on behalf of the plaintiff showed, in brief, as follows: The two roads were controlled by the same general manager, paymaster and general officers, and ran through trains from Atlanta to Montgomery, employing jointly the same conductors and engineers, using the same engines and ears and having a common pay-roll. In 1882, the plaintiff was employed by the defendants as an engineer, and on March 2, 1883,. at night, near Cusseta, Alabama, his engine left the track, breaking the train and injuring him and others. This occurred on a curve, the elevation of the outer rail of which was too high, being about five inches, when it should have been one and five-eighths inches for a train running thirty miles an hour, which was a fast schedule for that line. After the catastrophe, the elevation on this and other curves was reduced. A number of cross-ties here were rotten. The section-master stated that he considered the track at that point in safe running order, but it was not in first-class condition, that it had been about a year since he put new ties in that portion of the track; that it was the custom to do this about once a year; that he had applied to the road-master before the accident for more cross-ties, but did not receive them; and that, shortly after the accident, the general manager and road-master walked over that section of the track, and after that he received new ties. Cecil Gahbett was the general manager and the highest officer in Alar bama and had charge of the running of the roads, the control of employés and the care of the track. He was asked, “Isit your duty to know all about everything going on?-’ and answered, “ Yes, sir.” Also, “ And to keep everything straight ?” Answer, “ Yes, sir.” The president had nothing to do with managing the road. On the night of ■the injury, Gabbett was on a train going from Atlanta to Montgomery, and at West Point was asleep in a car. The conductor, Sandwich, testified that about ten o’clock he -went into the car where Gabbett was, woke him and told him of the wreck of the plaintiff’s train; and Gabbett rer marked that he had told the road-master that those curves were too high. He then took a car and went to the wrecked train, andón arriving there made an examination of it and ■of the track, etc. The plaintiff testified that after this, Gabbett came into a car where he and a mail agent, Hester, were lying, injured, and asked plaintiff ■ what, m his opinion, caused the wreck. Plaintiff replied that he thought it was a broken rail, but was not positive. Gabbett replied, “You are mistaken.” Plaintiff then asked what, in Gabbett’s opinion, caused the wreck, as he had made an examination, and he replied, “ It had too much elevation on the curve.” Plaintiff asked if he was positive about it, and he replied, “ Yes, I know it; hereafter I will remedy this, and have no more accidents from that source.” Hester swore that he was the mail agent; that he also was lying in the car near the plaintiff, and heard Gabbett say he thought the cause of the accident was, the elevation was too high.</p> <p>The testimony for the defendants conflicted with that of the plaintiff in many particulars. Gabbett denied the conversations attributed to him ; and evidence was introduced to show that if the outer rail of the curve had been too high', the engine would ndt have been (as it was in fact) thrown off on that side; and much evidence was introduced as to the condition of the road-bed and track. There was also conflicting evidence as to the extent of the injury, and whether the plaintiff’s condition was the result of such injury or of disease.</p> <p>The jury found for the plaintiff $15,000. The defendants moved for a new trial on many grounds. The following, which are stated in substance, will serve to explain the points decided:</p> <p>(l)-(3.) Because the verdict was contrary to law and evidence and without evidence to support it.</p> <p>(4.) Because the verdict was excessive.</p> <p>(5.) Because the court refused to grant a nonsuit as to the Atlanta and West Point Railroad Company.</p> <p>(6.) Because the court struck a plea of the statute of limitations, filed by the defendants, which set out that the injury happened in Alabama; that the statute of limitations of that State required suits for personal injuries to be brought within one year of the time of their occurrence. The court held that the law of Georgia, and not that of Alabama, was applicable as to the limitation of the action, and struck the plea and rejected testimony offered under it.</p> <p>(7.) Because the court erred in charging the jury in the following language: “If you believe from the evidence that the plaintiff, on the 2nd day of March, 1883, was a joint servant of these two defendants, under contract with them to drive an engine on the line of their road from Montgomery to Atlanta, and that while in the line of his duty, and without fault on his part, while driving his engine along the track, near Ousseta, Alabama, said engine was thrown from the track because of defendants’ negligence in failing to provide a suitable track or to keep said track in reasonably safe and good condition for the passage of the train of cars thereon, but that plaintiff was injured thereby, and has sustained damages, then the plaintiff is entitled to recover such amount in damages as will compensate Mm for his injuries thus inflicted. The j®y is instructed that the law is, that one who is the joint servant of two employers, and is injured in such service, has Ms election to sue either or both of his employers.” The error in this charge consists in the failure of the court to point out to the jury that the road guilty of the negligence causing the injury would alone be liable; and in charging that both defendants would be liable, the evidence in the case failing-to show that the Atlanta and West Point Railroad, its servants, agents or employés were guilty of any fault or negligence causing the accident.</p> <p>(8.) Because the verdict of the jury is contrary to the following charge of the court: “ If you believe from the evidence that such alleged, defects existed, and that Arrington, the section-master, or any other subordinate officer of the company who did not represent its personality and stand as its substitute, knew of such defects and failed to repair them or to communicate them to the company, and the company was not negligent, the plaintiff could not recover. For all such casual or incidental or accidental acts of negligence or omission of duty by a fellow-servant, the master is exempt; it is a risk of the employment,”</p> <p>(9.) Because the court erred in making the following charge: “ If you believe from the evidence ihat Mr. Gabbett was the superintendent and general manager of defendants, and that as such he represented a function of the company in the executive control and supervision of all its departments, and through the heads of departments exercised a superintendence over all of the defendants’ operatives and internal business and affairs, the machinery . and appliances of the company, then Mr. Gabbett, for all purposes of notice, and knowledge of defects in such machinery and appliances, would represent the personality of the company, and would stand in law as its substitute.” The error in this charge consists in telling the jury that . knowledge of defects in machinery, etc. of defendants by -Gabbett is the knowledge or the defendants, and; that notice in him is notice in the defendants for which they would be liable.</p> <p>(10.) Because the court erred in making the following charge: “ It would also be proper for you to take into consideration the condition of the plaintiff as to health and soundness when injured, and if you find from the evi- . dence that disease or ether injuries had made inroads upon his health at that time, and are still operating and in part -contributed to -the present impairment of his abilities which he claims to suffer, you would be authorized to make a still further reduction on that account, if you. saw, proper to; do so, and you might consider any other fact or circumstance, if shown in the evidence or founded upon yourobservation and experience, Which would properly tend to affect your estimate of the probable future of the plaintiff had he not been injured.”</p> <p>(11.) Because the court erred in refusing to charge the following: “Mr. Cecil Gabbett, the general manager of the defendant corporation, is not, m law, the defendants themselves, nor would the defendants be liable in this action for any act or opinion of his done or expressed in the discharge of his duty as general manager or superintendent.”</p> <p>(12.) Because the court refused to charge as follows': “ Notwithstanding the fact, if it be a fact, that Arrington may have applied to Hughes for cross-ties and was refused, yet if it be a fact that the defendant had placed at Hughes’s disposal an ample supply of ties, and the failure to furnish Arrington was due to Hughes’s negligence or inattention, then this was the negligence of a fellow-servant, for which the defendants are not liable.”</p> <p>(13.) Because the court erred in refusing to charge the following language: “ Under the laws of Alabama in force-at the time of said injury, the general superintendent and manager of a railroad, as well as the road supervisor, the-section-master and the conductor of the construction train-which carried material to keep in repair the track of a railroad, are each and all fellow-servants with the engineer on a passenger train, and if an engineer of a passenger-train was injured by the carelessness or neglect of duty of either or all of said officers or employers, done or suffered in performance of their duties as such officers, then the-defendant corporations would not be liable therefor, unless, the said officers or agents be shown by evidence to be-unfit for their respective positions ; or unless it be shown that the defendant failed or refused to furnish proper and sufficient material to safely and properly operate their railway.”</p> <p>(14.) Because the court erred in refusing to charge the-following language: “ The fact, if it be a fact, that Cecil Gabbett, the general manager of the defendant corporations, may have expressed an opinion that the accident which injured plaintiff was caused by an improper elevation of the outer rail of the curve where the accident occurred, is not, within itself, sufficient to fix a liability upon the defendants for said injury; especially is this the law, should the evidence show that the said improper elevation, if there was such, would have caused the engine to leave the track on the opposite side thereof from that on which it did leave the same.”</p> <p>(15.) Because the court erred m refusing to charge the following language: “ The fixing of the elevation of curves is not such a function as could properly be performed by the defendant corporations as such, but is such a duty as Is required to be performed by servants or employés of the ■defendants; and if there be any neglect or misconduct in this particular, the law of Alabama, which governs this •case, will attribute it to the said servants or employés and hot to the corporations themselves, and the defendants are •not liable therefor, unless they had notice thereof in time to have the same remedied, and notice thereof to a fellow-servant or co-employé with the plaintiff would not be notice to the defendant.”</p> <p>(16.) Because the court erred in charging the jury as follows-: “ In such cases, the plaintiff would owe the duty to his-common employés to drive the engine over the entire way with care and skill, as joint servants of both under their arrangement with him; and the two defendants would owe to him the correlative duty of furnishing to him machinery and appliances adequate and proper for the -use to -which it was to be applied and to maintain it in like conditions over the whole way.”</p> <p>(17.) Because the court erred in charging the jury as follows: “ The superintendent or immediate representative and managing agent of a corporation, who is entrusted with the exercise of a function of the companies which, in the nature of the-case, the stockholders or board of directors, in their-aggregate-capacity, could not efficiently exert, and under whose supervision and orders its affairs and business, in all of its departments, is conducted, stands as a substitute for the corporation. lie represents its legal personality. Notice to him is notice to the corporation. Knowledge in him, actual or imputable from the circumstances, is knowledge in the corporation. Negligence in him, in respect of the duties he is called upon to discharge by virtue of his position as the executive officer of the corporation, is the negligence of the corporation itself.”</p> <p>(18.) Because the court erred in admitting the following evidence by Fred. Krogg, plaintiff, over the objection of defendants, the same being a conversation between witness and Cecil Gabbett: Witness told Gabbett that he thought a broken rail caused the wreck. Gabbett replied, “You are mistaken; it was too much elevation on the curves.” This evidence was objected to on the ground that an admission by Gabbett, made after the accident, could not be given in evidence to bind the defendants, the same not being a part of the res gestos. This conversation occurred not less than five or six hours after the accident.</p> <p>(19.) Because the court erred in permitting James G. Hester, a witness for the plaintiff, to testify, over the objection of defendants, as follows: “I was present in the postal car with plaintiff after the injury, and heard Gabbett tell Krogg that he thought the cause of the accident was the elevation of the road on one side, the higher elevation on one side.” — Objected to on the ground that an admission by Cecil Gabbett as to the cause of the accident, not being res gestee, was not admissible to bind the defendants, and this conversation, or these admissions, were made five or six hours after the accident.</p> <p>(20.) Because the court committed error in allowing W. D. Sandwich, a witness for the plaintiff, to testify, over the objection of defendants, that he heard Cecil Gabbett say, on the night of the accident, to plaintiff, that he, Gabbett, had told the road-master that those curves were too high. This conversation occurred several hours after the accident. — Objected to because the sayings of Gabbett were inadmissible to bind the defendants, not being a part of the res gestos.</p> <p>The motion was sustained on the 18th ground only, and the plaintiff excepted. The defendants filed a cross-bill of exceptions, assigning error on the refusal to grant the new trial upon all the grounds taken in the motion.</p>

Trade-Marks. Labels. Injunction. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886. On February 20,1886, Foster, Milburn & Company filed their bill against the Blood Balm Company et al., alleging, in brief, as follows: In 1881, Thomas'Milburn & Co. were residing and doing business in Toronto, Canada.

<p>Practice in Superior Court. Equitable Pleadings, Yendor and Purchaser. Judgments. Debtor and Creditor. Before Judge Bower. Brooks Superior Court. May Term, 1S86.</p> <p>Reported in the decision.</p>

<p>Under §2571 of the code, upon the death of a husband, leaving a ■widow or minor child or children, the provision for the support of the family specified therein vests in such widow and minor child or children; and if the widow die before it lias been set apart to her, this right to have the twelve months’ support survives to her administrator, and he may apply to the ordinary to have this allowance made in as ample, full and complete a manner as the widow could have done were she in life. But where, after the death of the widow, a part of the estate of her husband was set apart to her as a year’s support, under an application made for her prior to her death, such proceeding was void and was properly set aside.</p> <p>(a) The judgment is affirmed with directions that the administrator of the widow be allowed to make an application anew for her twelve months’ support, and that it be set aside to him as her administrator under the same rules and regulations as if the widow were alive and the application were made by her; and that, when it is set apart, her administrator hold it, to be accounted for and distributed among her heirs or creditors.</p>

<p>Where a bill was filed, alleging that the complainant had received a certain promissory note as a gift from her father, and that it was given for the purchase money of land in possession of the maker, and praying that he be restrained from disposing of the land and be required to pay her the money due on the note, that it be a lien on the land, and that the land be sold for the payment thereof;the dismissal of this bill at the hearing for want of equity did not . conclude the complainant, under a bill subsequently filed by the administrator of her father’s estate, under which the question was, whether she should be charged with the note in the distribution of the estate, she claiming that the note had been given to her by her father in his lifetime. Besides, she subsequently obtained a judgment at law on the note, thereby showing that she had a - right to recover at law upon it, although, she had no right to a decree in equity, and although the purchase money note gave her no lien on the land.</p> <p>(a.)'The preponderance of evidence is in favor of th’e finding of the .. master and the -decree rendered thereon. ..."</p>

<p>1. Where suit was brought against a railroad company by the parent of a minor son, to recover for the homicide of the minor, caused by such company, it was error to permit a' witness to testify that the conductor of the train, who was on the engine at the time of the accident, told’ the witness shortly thereafter, in answer to a question as to how it happened, that the engineer told him that he had pulled back the reverse-lever of the engine and it flew back, giving the train a jerk, which threw the son of the plaintiff from the back of the tender and the cars ran over him. Such testimony was mere hearsay and inadmissible.</p> <p>2. Testimony that the plaintiff’s son, prior to'his death, made a certain statement as to how the injury was done, was inadmissible, such a statement not being at or near the time of the accident so as to be admissible as part of the res gestee. Dying declarations are not admissible in civil cases.</p> <p>3. Where a husband and wife were living separately, and the wife was using the wages of her minor son for the support of herself . and her minor children, a suit for his homicide, brought by herin her own name and in the name of her husband for her use, could be maintained; and a charge to that effect was not error.</p> <p>4. Eailroad companies are not liable to employés as they are to passengers, but in an action by an employé against a railroad company for an injury to him, or by one who sues for his homicide, it must be shown either that such employé, at the time the injury was received, was free from fault, or that the company was at fault, before any presumption of negligence would arise against the defendant. If either one of these things were shown, the other could be presumed, and the onus would be upon the company to rebut that presumption; but the rule as to passengers is different.</p> <p>5. In a suit brought for the killing of an employé by a railroad company, it was error to charge as follows: “A railroad company shall be liable for any damage done to persons,- stock or other property , by the running of the locomotive or cars or other machinery of such companies, or for damage done by any person in the employment and service of such companies, unless it shall appear from the evidence that their agents have exercised all necessary and reasonable caro and diligence, the presumption in all cases being against the company, with the following modifications, that where the party injured was in a position to control the movements of the train, such as an engineer was, or a conductor injured in the running of the train, that the presumption of negligence did not arise against the company; but this modification did not apply to one who was engaged to sweep out the train, or like employés, suchas . firemen.”</p> <p>6. The doctrine of contributory negligence does not apply to the case of an injury sustained by an employé, so as to permit him to recover, but to dimmish the amount of the recovery in proportion to the- fault attributable to him. In order to recover, he must be free from fault; and if the injury is-sustained by him in conse- ■ quepce of any fault or negligence on his part, he cannot recover. And where a suit was brought by the parent of a minor employé to recover for the killing of her son, the parent could not recover unless he could have done so if he were in life.</p>

<p>1. To publish, in a newspaper a statement that a real estate and renting agent has objected to a negro tenant on account of his race, and caused him to lose a certain location where he was doing business, and as a consequence causing him to sell out at a loss, and warning colored people to rent from other agents and “leave this old skunk to stink himself to death,” imports malice and an intention to injure the business of the person of whom the publication was made, and was such a publication as would furnish a basis for an indictment for libel.</p> <p>2. There was no proof of the truth of the statements made in this publication, and a charge in respect to justification by giving the truth in evidence should not have been given. The giving of a charge, as to the extent to which the truth of the charge would justify the publication of the libel, was not error of which the defendant could complain; and whether it correctly announced the rule of law or not, it did not, under the proof, injuriously affect any right of the defendant.</p> <p>8. Voluntary statements, made under oath by the defendant", pending a motion to continue the case, without compulsion or resort to other means affecting their competency, were admissions or confessions free from suspicion, and being pertinent to the issue, were admissible in evidence.</p> <p>4. Where a motion to continue a case was made on the ground that a witness was absent, and it did not appear that he had been subpoenaed, or that he could be reached by subpoena and his testimony procured at another term of court, or that the motion was not made for delay, there was no error in overruling it.</p> <p>(a.) Had the showing been full in these respects, the testimony of the absent witness would not have availed the defendant on this trial to rebut the presumption of malice.</p> <p>5. Testimony as to conversations between the person alleged to have been wronged by the real estate agent, the son and assistant of the latter and the owner of the house, was admissible to show the falsehood of the charge published; and the absence of the defendant was immaterial, the conversations having transpired prior to his connection with the matter, and having relation only to the transaction which the defendant alleged was reported to him, and out of which the publication grew.</p> <p>6. The proprietor or publisher of a newspaper containing the defamatory matter was a competent witness, and if he refused to testify in the case, or to state the real name of the author of the publication, he was to be considered as the author himself, and was liable to indictment and punishment as such; and he might moreover be punished for a contempt of court, as any other witness refusing to testify.</p> <p>(a.) The fact that the witness had been indicted for the same offence was not available to shield him from the consequences of disobedience to the precept under which he was brought into court. Nor did it appear that he was called on to testify to facts tending to criminate himself, and upon then claiming his privilege, was compelled to state such facts; but he refused to testify at all.</p> <p>7. The verdict was not only sustained, but was required, by the evidence.</p>

<p>Sections 669, 670, 671 and 691 of the Code contain the conditions upon which a party injured, in consequence of defects in bridges or ferries, may have a right of action against the county where they are' located; and in order to entitle him to maintain the action, some one of these conditions must be alleged and proved. By implication from the liability imposed where toll is charged, such liability does not exist where the bridge or ferry is free.</p>

<p>Promissory Notes. Principal and Agent. Parties. Pleadings. Amendment. Yerdict. Before Judge Simmons. Pulaski Superior Court. November Term, 1886.</p> <p>Suit was brought by “Jas. Martin, Agent Etiwan Phosphate Company, for the use of the Etiwan Phosphate Company,” against J. M. Lamb & Company, a firm composed of J. M. Lamb and W. B. Whiddon, on a promissory note signed by the firm and payable “ to the order of Jas. Martin, agent of Etiwan Phosphate Company.” The defendants pleaded that they were not indebted, because they had paid part of the debt and had turned over to plaintiffs’ attorney notes which, if properly collected, would have paid the debt, but plaintiffs, through the negligence of such attorney, had failed to collect and had lost the amount to defendants.</p> <p>Whiddon also pleaded the general issue, non est factum, that he was not a partner when the note was given, and that it was given without consideration as to him. These pleas were sworn to to the best of his knowledge and belief. He also pleaded that the firm was organized for the purpose of storing cotton alone, and not for buying and selling; and that no member of it had authority to sign such a note.</p> <p>On the trial, the plaintiff introduced the note and closed. The defendant, Whiddon, testified as follows : I and J. M. Lamb formed a partnership in the fall of 1880 for the purpose of receiving, and storing cotton received for guano and any other cotton that we should receive for storage. That was our business only. We did not buy or sell anything, and neither of us or any one else was authorized to sign the firm name to any promissory note, and I did not sign the note sued upon or authorize any one to sign it. I never saw the note until to-day ; do not know the consideration of the note. J. M. Lamb was not authorized to sign said note for the firm. In February, 1881,1 and J. M. Lamb had a settlement of our business and closed up the partnership. I do not know who signed the note.”</p> <p>The jury found for the plaintiff. The defendant, Whiddon, moved for a new trial on substantially the following-grounds :</p> <p>(l)-(3.) Because the verdict was contrary to law, evidence and the principles of justice.</p> <p>(4.) Because, after the plaintiff introduced the note and closed, the court held that the burden of sustaining the pleas was on the defendant.</p> <p>(5!) Because of newly-discovered evidence tó show that at the time of the trial, J ames Martin, in whose name the suit was brought, was dead, and the verdict and judgment were therefore, void. [The usual affidavits accompanied this ground.]</p> <p>The court granted a new trial on the fifth ground, and the plaintiff excepted.</p>

Guano. Fertilizers. Contracts. Before Judge Estes. Floyd Superior Court. October Term, 1885. The Upshur Guano Company brought an action of complaint against W. W. Martin on two acceptances. The defendant pleaded the general issue, and also that the consideration of the drafts was certain commercial fertilizers, and that these had not been tagged or branded as required by law.

<p>1. A plaintiff in ejectment may recover the premises in dispute upon his prior possession alone against one who subsequently acquires possession of the land by mere entry and without any lawful right whatever; and the same rule applies where a hill in equity was filed as the equivalent ot an action of ejectment, resort to equity being necessary to prevent loss and injury to the rightful possessor in consequence of the alleged insolvency of the trespasser.</p> <p>2. A contract between the complainant and certain persons who claimed title to the premises to make complainant a quit-claim deed to the land in question, was pertinent evidence to show that his entry was quiet and peaceable, and was made in good faith. None of the objections were tenable or, at least, not pertinent and applicable to tho issue made by the offer and admission . in evidence of the writing in question; nor does it affirmatively appear from the record that they were made and passed upon in the court below.</p> <p>(a.) So likewise a letter from the attorney of the persons claiming the title to the complainant was admissible in evidence to show the recognition of complainant’s right to the possession. If its admission was doubtful, it did no harm.</p> <p>(5.) A ground of objection to testimony which is not shown to have been made or ruled upon in the court below, will not be considered here.</p> <p>(c.) A deed forming part of the chain of title under which the complainant claimed, was admissible in evidence.</p> <p>(d.) If there was error in permitting the complainant to testify that a chain of titles which he saw in the hands of the attorney for those under whom he claimed was perfect, it was not error which hurt the defendant. But it is doubtful if objection to this testimony was made and insisted on in the court below.</p> <p>S. Where the existence and loss of a deed, or whether an exhaustive search for it had been made, were left in doubt, there was no error in refusing to admit parol evidence of its contents.</p>

<p>The issue in a claim case being, whether the claim was fraudulent as being an attempt to cover up the property of the defendant infi. fa. and to prevent his creditors from collecting their debts, and there being sufficient evidence to authorize a verdict subjecting the property, this court will not interfere with the discretion of the court below in refusing to grant a new trial on the ground that the verdict was without evidence to support it.</p>

<p>1. Where the testator devised and bequeathed his whole estate to his two sons, to be equally divided between them, appointing them executors, p,nd they both qualified, and without administering the property or dividing it, used the realty and personalty, in carrying on a farming business as copartners or tenants in common, awaiting the termination of some litigation against them as executors, and one of them died leaving the property undivided and some claims against the estate outstanding, their legal relation to the property in using it was that of renters and hirers of it a’s individuals from themselves as executors; they were liable to the estate for reasonable rent and hire, and were entitled as co-partners or tenants in common (not as executors) to the proceeds of the business.</p> <p>2. The surviving executor is entitled, as such, to administer the whole estate of the testator, and will be accountable to the administrator of the deceased brother for his share, either in kind, if a division in kind be had, or in money, if a sale for division should take place. Before any specific property can come from the father’s estate to the administrator of the son to be administered, it must be administered by the surviving executor of the father.</p> <p>3. If the widow and children of the son be entitled to a year’s support, or the widow to dower, there is no cause, legal or equitable, for delaying the enjoyment of these rights; and if they cannot be as- ' serted against the surviving executor, he can defend himself at law upon his title as executor, and has no need for an injunction.</p>

Trover. Practice in Superior Court. Bail. Croppers. Tender. Attorney and Client. Before Judge Simmons. Sumter Superior Court. October Adjourned Term, 1885. Goff brought an action of trover against Hudson to recover certain corn, fodder and other farm products. The plaintiff made an affidavit to obtain bail process, and the sheriff seized the property.

<p>Principal and Agent. Fraud. Torts. Notice. Promissory Notes. Before Judge Lawson. Jones Superior Court. April Term, 1886.</p> <p>■ Sparks brought an action of complaint against R. A. Gordon, William King, G. W. King and three others on the following draft:</p> <p>“ $1,110.00. Macon, Ga., January 16,1884.</p> <p>“On December 16th next, after date, please pay to ourselves or bearer eleven hundred and ten dollars at any bank in Macon, Georgia. If this draft is not punctually paid at its maturity, I do hereby agree to pay interest thereon at the rate of eight per centum per annum from the date of this draft, interest having been agreed on at that rate, besides all costs incurred in its collection. I also agree to ship my crop of cotton to W. B. Sparks, at Macon, Georgia, and to pay him commissions and storage at the rate of one dollar and twenty-five cents per bale.”</p> <p>The two Kings pleaded non est factum. On the trial, R. A. Gordon, the principal debtor, testified that G. W. King signed the draft; that William King did not, but he (Gordon) signed it for him by his authority; that the witness desired to borrow money and wanted William King’s name on the note ; that he went to the field where King was at work in the low-ground and asked him to sign a note; that King said he did not have time to go to the house, but authorized the witness to sign his name to a note binding him to the extent of $500. The witness did not have this note with him when he asked for the signature. He signed it subsequently at his store. Under this authority, he signed a note for $500; also a note to one Adams for $900. The witness did not tell any of the payees of these papers that William King was responsible for $500. He did not remember exactly when this occurred, but had the note when it happened. The witness had been arrested on a charge of forgery on account of this draft at the instance of Sparks. He testified that there were several securities on each of the papers, and he did not consider that Wm. King’s liability amounted to more than $500.00.</p> <p>The draft was dated January 16, 1884. Each of the Kings denied signing it, or authorizing the signing thereof. William King testified that he said that he would sign a note for $500, provided two other named persons also would sign it, but they did not both do so; that he did not authorize Gordon to sign his name to the note; that he knew nothing of it until long after it was signed; that he heard that Gordon had signed his name to other papers, and meeting him, asked him about it, but the latter denied it; and that the time when Gordon came to him in the field was March 14,1884.</p> <p>A number of witnesses testified as to a conversation between Gordon and King, in which the latter denied the right of the former to sign his name. Some of them stated that King told Gordon that he was only authorized to sign his (King’s) name to a note for $500, and others testified that King also said that this was on condition that certain other persons would sign. A son of William King testified that Gordon tried to get him to sign his father’s name to the paper, but on his refusal, Gordon signed it himself; that this occurred in Macon in January, 1884, and Gordon then told him that he had signed all the names to the paper. This was denied by Gordon.</p> <p>It was shown that Sparks accepted the draft as an accommodation to Gordon, who had dealings with him; that he raised money for Gordon on it, and that when it fell due, he took it up. Certain signatures of G. W. King were put in evidence for comparison.</p> <p>The jury found against all of the defendants. The two Kings moved for a new trial on substantially the following grounds:</p> <p>(l)-(3)’(6.) Because the verdict was contrary to law, evidence, the weight of the evidence and the charge of the court.</p> <p>(4.) Because the court admitted in evidence the note against William J. King, — the objection being that there was no evidence to show authoilty to sign such a note as this.</p> <p>(5.) Because the court erred in charging the jury that, if they believed from the evidence that W. J. King authorized R. A. Gordon to sign his name to a note for $500, and R. A. Gordon abused his authority and signed said King’s name for a larger amount than King authorized, and Sparks had no notice thereof, W. J. King would be liable.</p> <p>The motion was overruled, and the defendants excepted.</p>

Judgments. Bes Ad judicata. Before Judge Lumpkin. Henry Superior Court. ' April Term, 1886. E. T, Smith filed his bill against A. W. Walker. The following are the material facts: In 1867, a fi.fa. in favor of one Mitchell was levied on 800 acres of land as the-property of complainant, who interposed an affidavit of illegality to stop the sale.

Practice in Supreme Court. New Trial. Practice in Superior Court. Deeds. Forgery. Before Judge Fort. Stewart Superior Court. April Term, 1886, In an action of ejectment of Collier et al., executors, vs. Patterson, one of the plaintiffs, by affidavit, raised an issue of forgery on a deed from Anderson Covington to G. W. Hamil, which formed part of the chain of title of the defendant. The jury found the issue for the plaintiffs.

<p>[Hall, Justice, being disqualified, Judge Marshall J. Clarke, of the Atlanta Circuit, was appointed to preside in his stead.]</p> <p>Where, during the term when a case was tried, a motion for a new trial was made and an approved brief of the evidence filed, and a consent order was taken, providing that the judge before whom the case was tried should take the motion with him and pass upon it “within the next thirty days in vacation,” if the judge failed to decide the motion within the time prescribed, without the movant being in any way chargeable with such failure, this would not operate to prevent a determination of the motion at a subsequent term, nor would it furnish any ground for dismissing it at the succeeding term.</p> <p>(a.) While a motion for a new trial may be.heard, determined and returned in vacation, an order to that effect must be passed in term time, and the terms of the order must be observed in any hearing which occurs under it. When a movant for a new trial fails to take an essential step in the application, within the time prescribed by an order providing that such motion and brief may be perfected in vacation, the judge has no jurisdiction to entertain it. Likewise where, by an order granted in term, a time beyond the term is fixed for the hearing of a motion for a new trial, and at such time no action is taken by the judge, he cannot afterwards hear the motion; but it has never been held that, when a motion for a new trial, in every respect complete, is pending before a judge in vacation, and he simply does not pass upon it', he cannot afterwards hear and determine it whenever the law allows him to deal with such business.</p>

<p>The sheriff of a certain county was requested, by letter from the authorities of another county, to arrest a person named, who was indicted for murder in the latter county. Upon receipt of the request, and without any warrant or other authority, the sheriff proceeded to another county than his own, arrested the plaintiff in this suit, tied and hand-cuffed him, carried him to the county of his (the sheriff’s) residence, committed him to jail, and subsequently sent him thence to the county from which the request came, where it was ascertained that the plaintiff was not the party wanted, and he was discharged from arrest:</p> <p>Held that, under these facts, the plaintiff was entitled to recover damages, and a verdict for the defendants was contrary to law.</p> <p>(a.) If the, sheriff was honestly mistaken as to the identity of the person accused, or if he acted prudently and cautiously in ascertaining the truth of the matter, these facts might go in mitigation. of the damages, but would not altogether defeat a recovery.</p> <p>(6.) Although two successive verdicts were found for the defendants, it was proper to grant a second new trial under the facts stated,</p> <p>(c.) No opinion is expressed as to whether the damages to be recovered should be exemplary, actual or merely nominal.</p>

Wages. Garnishment. Before Judge Harden. City Court of Savannah. . March Term, 1886. Lamar obtained a judgment against Besselieu and caused a summons of garnishment to be served on Chisholm, who answered that the defendant was a clerk or journeyman, and he owed him monthly wages which were not subject to garnishment. The answer was traversed.

<p>IJackson, C. J., did not preside in this ease, on account of providential causv.]</p> <p>1. A declaration alleged, in brief, as follows: The defendants, as partners, were engaged in the sale of drugs and medicines in the city of Macon, and were indebted to plaintiff the sum of $130.12, with interest; the plaintiff was employed by them as a clerk in their drug-store, and while so employed, he was the owner and proprietor of a formula for making a preparation known and sold as "KusselPs axle-grease;” after making and selling this preparation for some time, it being in some degree popular and sought after, one of the members of the firm voluntarily told him that he would allow him a liberal royalty on the sale of the preparation; whereupon he compounded and sold it solely for the drug-store of the defendants, giving them the full benefit of all the profits from the sale thereof; the plaintiff pushed the sale,and sold a quantity stated; at the time of the agreement between the defendants and himself, no amount was fixed or specified as to what the plaintiff’s royalty should be; he was reasonably entitled to half the net profits, putting his knowledge and skill against the cost of the preparation:</p> <p>Held, that the declaration set out no cause of action, the only liability stated, if any, being that of an individual member of the defendants’ firm, based on a promise which was unsupported by any</p> <p>• valuable consideration. There was nothing in such a declaration on which an amendment could be founded.</p> <p>2. An amendment to such a declaration, strikingthe word “voluntary” as descriptive of the promise made, and alleging that after making and selling the preparation for some time, and when it became to some degree popular and sought after, the defendant’s firm promised and agreed wdth the plaintiff that, in consideration of his services in compounding and selling such preparation, the receipt belonging to the plaintiff, they would allow him a liberal royalty, to-wit, one-half of the net profits from the sales, in addition to his regular salary as clerk for .the firm, introduced anew and different cause of action, and should not have been allowed.</p>

Criminal Law. Evidence. Before Judge John T. Clarke. Early Superior Court. April Term, 1886. Alex. Stevens was indicted for the larceny of a black sow-hog, the property of D. P. Rowland. On the trial, the evidence for the State was, m brief, as follows : The hog was a pet, and was in the habit of going up to the house and did not run away. It was missed from the owner’s lot on Sunday, and he suspected the defendant, who lived about three hundred yards away.

<p>Practice in Supreme Court. Garnishment. Evidence. Executions. Before Judge Harris. Douglas Superior Court. January Term, 1886.</p> <p>In February, 1876, Z. A. Rice recovered a judgment against Fred. Aderhold, Jr. On April 4,1885, a summons of garnishment was served on W. H. Connally. He answered not indebted. The answer was traversed. On the trial, it appeared that Connally kept a retail liquor store; that Aderhold gave to the treasurer of the town of Douglasville a note due one day after date for $150 in order to obtain a license for Connally, the amount of the note being one-half the cost of the license, which was issued March 25,1885. Aderhold was then working for Connally, and a partnership was contemplated between them, but this was subsequently abandoned. Aderhold settled his note with the treasurer. Connally and Aderhold testified that they had had a settlement between themselves before the summons of garnishment was served, and at that time Connally owed Aderhold nothing. Other witnesses testified that after the service of the summons, Connally admitted the indebtedness to Aderhold, and stated his intention to pay it.</p> <p>The jury found for the plaintiff against the garnishee, who moved for a new trial on the grounds that the verdict was contrary to law, evidence and the charge of the court; because of newly discovered evidence; and because the court rejected parol testimony to show that Rice did not own any interest in thefi.fa. on which the garnishment issued, and therefore could not be afraid of loss. The motion was overruled, and the garnishee excepted.</p>

<p>Contracts. Equity. Injunction. Receiver. Practice in Superior Court. Vendor and Purchaser. Practice in Supreme Court. Before Judge Willis. Muscogee County. At Chambers, January 1,1887.</p> <p>On December 18, 1886, W. J. Vanhorn exhibited his bill against Wm. M. Tumlin, trustee, and Mrs. Carrie E. Lee, alleging, in brief, as follows: On November 8,1885, complainant owned- a tract of land in Chattahoochee county. Tumlin represented that he.was the trustee of Mrs. Lee and had effects of hers m his hands. Such representations were false, as complainant now alleges, but relying on them at the time, he sold the land to Tumlin, as trustee, for thirty-five bales of cotton, each to weigh 500 pounds. Two notes were given, each for seventeen and one-half bales of cotton, one due December 15, 1886, and the other December 15,1887. Complainant gave a bond for title to Tumlin, trustee, and put him in possession» The first note is past due and unpaid. The property, by use and failure to keep it in repair, is deteriorating in value, and will not bring enough to pay the two notes. Tumlin is insolvent, and Mrs. Lee has no property upon which money could be raised by judgment, so that complainant will be compelled to look to the land for the payment of his debt. The prayers were for a receiver to take charge of the land, sell it and apply the proceeds to the payment of the debt, and if not sufficient to discharge it, that the rents also be applied thereto; that complainant have judgment for the amount of the note past due; and for subpoena, and general relief.</p> <p>The defendants answered the bill, in brief, as follows: They admit the sale and purchase, but deny that any representations were made to induce the former. Tumlin is, in fact, trustee for Mrs. Lee and her minor child, created so by an instrument in writing making him her trustee with full power to manage her property, to purchase, sell, mortgage or hypothecate it, and to make any trade or arrangement which he might think would be for the benefit or interest of the cestuis que trust. He has assets in his hands of the value of $1,800 or $2,000. He made the trade with complainant in good faith and expects to pay the indebtedness in full. He made a poor crop during the first year, and was therefore unable to meet the first note when it fell due. Improvements have been placed on the land, and it has enhanced in value. It is worth more than when bought and will bring more than the two notes for the purchase money.</p> <p>Affidavits in support of the bill and answer were introduced, but they need not be set out. On the hearing, the chancellor appointed a receiver and granted an injunction. His order is stated in the decision. The defendants excepted.</p> <p>On the call of the case in the Supreme Court, counsel for the defendant in error moved to dismiss it on the ground that the plaintiffs in error had complied with the older of the chancellor and given bond and security as required therein before the writ of error was filed, and proposed to support this motion by a certificate from the clerk that such facts were true. The court overruled the motion.</p>

<p>ÍBIandford, J., did not presido in this ease, on account of providential cause.</p> <p>1. Objection made at the hearing of an application for injunction to the reading of certain affidavits, because they were not procured ■ and furnished within the time agreed upon in a previous stage of the hearing, being overruled by the presiding judge, the presumption is that they were,, in fact, procured and furnished within the time, unless the contrary appears. In this case the contrary does not appear.</p> <p>2. A general objection to affidavits, because the facts stated therein are illegal and irrelevant, will not be sustained, if any of the facts are legal and relevant evidence.</p> <p>3. Rebutting testimony to that of a specified witness is any legal testimony which bears against the truth or accuracy of what that witness has sworn.</p> <p>4. The constitutional inhibition against taking private property for public purposes without just and adequate compensation being first paid, does not constrain the granting of an ad interim injunction in favor of the owner of the fee against a railroad company, where there is an apparently bona fide claim on the part of the railroad company to the right of way in dispute, whether the claim, if well founded, would amount to a legal title in the company or to a mere license from another company having such title.</p> <p>5. On the hearing of an injunction, the question of receiving secondary evidence is somewhat discretionary with the presiding judge; he need not require absolutely that all means of discovering the primary evidence be exhausted.</p>

Jurisdiction. Ordinary. Administrators and Executors. Illegality. Equity. Before Honorable Hugh Buchanan, Judge pro Jiao vice. Carroll Superior Court. April Term, 1886. Z. P. Almon, executor of S. B. Echols, deceased, cited the heirs at law of the decedent and distributees of his estate to be present at a settlement of the executor’s accounts at the July term, 1879, of the court of ordinary of Heard county.

<p>County Matters. Chatham County. Jails. Nuisance. Constitutional Law. Municipal Corporations. Savannah. Before Judge Adams. Chatham Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Equity. Jurisdiction. Husband and Wife. Marriage Settlement. Parties. Service. Vendor and Purchaser. Title. Before Judge Adams. Chatham Superior Court. June Term, 1886.</p> <p>Reported in the decision.</p>

Homestead. Waiver. Interest and Usury. Contracts. Before Judge Hutchins. Chattooga Superior Court. March Adjourned Term, 1886. John S, Cleghorn brought suit in Chattooga county court against Henry Greeson on the following note : “One day after date, I promise to pay John S. Cleghorn, or hearer, fifty-five and 1V0 dollars, for value received, with interest at ten per cent, per annum.

<p>Evidence. Practice in Superior Court. Contracts. Before Judge Adams. Chatham Superior Court. June Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. By the 9th item of his will, a testator gave a money legacy to his two sons in trust for them for life, and at their death for such child or children as they might leave living. By the 21st item, it was provided that, when the youngest child became of age or married, the rest, residue and remainder of the estate of every description should be equally divided among all the testator’s children and the children of any one of the latter who might depart this life before the period specified, such of the grandchildren to receive only the deceased parent’s share; and it was further directed that, if it should be to the interest of the estate, or those who succeeded to it, that any real estate then in the possession of the executors should be sold for the purpose of this division, this was to be done, and the remaining property was, by three persons selected by the executors and other parties m interest, to be classified in lots and portions and, with the cash fund realized or received, to be fairly and equally divided, set off and delivered to each of testator’s legatees or distributees, that is to say, to his children and sons-in-law or grandchildren, as the case might be, according to the above instructions. The negroes were to be divided without sale and kept together in families as much as possible. By a codicil, dated July 11,1863, the testator bequeathed to his wife the use and occupation of his residence, with the furniture, etc., and. after her death, the property was to be equally divided among the several legatees, who were to receive the residue of the testator’s estate, as provided and directed in the 21st item of the will. By a codicil, dated April 6, 1864, after making provision for his minor children by setting apart to each of them the sum of $25,000, to put them upon the footing of the other children, to whom advancements had been made, the testator devised to his wife, in addition to what he had already bequeathed her, a warehouse, to be enjoyed by her for life, and at her death, to be equally divided among all his children then living and the children of any one or more of them who might have previously died, the latter to fakeper slirpe and notper capita. The two sons survived the testator. One of them died April 12, 1872. The other filed his petition in bankruptcy August 28, 187S, and was discharged February 14,1879, his interest under the will of his father not being returned in his schedule. The testator’s wife died in May, 1SS4 :</p> <p>Held, that the two sons took a vested remainder interest in the property which was bequeathed to the testator’s wife for life, and this remainder vested upon the death of- the testator.</p> <p>(a.) In all cases of doubt, the law favors the vesting of remainders, and in construing wills, where there are words of survivorship, these are made to refer to the death of the testator in order to vest the remainder,</p> <p>(i.) "Where certain judgments were obtained against the testator’s son prior to his bankruptcy, and were not proved in the bankrupt court, their lien attached to the property bequeathed to him, and all of the conditions of the will having been fulfilled, and he having taken an absolute indefeasible title in fee to the remainder beqeathed to him, it was subject to levy and sale.</p> <p>(c.) The lion of plaintiff’s judgments having been preserved, notwithstanding the discharge in bankruptcy, they could be satisfied out of the property.</p> <p>2. Prior to October 15, 1885, the entries on these executions were sufficient to keep the judgments alive, and the act of that date, requiring the entries to be recorded on the execution docket, does not apply to judgments obtained before its passage.</p>

Interest and Usury. Statute of Limitations. Payment. Before Judge Harden. City Court of Savannah. May Term, 1886. To the report contained in the decision, it is necessary to add only that the case was submitted to the presiding judge without a jury. He held that the principal of the note sued on should be reduced by the payments, made, and rendered judgment for the balance without interest. The plaintiff moved for a new trial, which was refused, and he excepted.

Mortgages.' Before Judge Harris. City Court of Macon.. March Term, 1886. J. S. Stewart brought an action of trover in the statutory form against S. R. Jaques to recover one black horse mule, about, nine years old, named Punch, and one black mare mule, about five years old, named Lizzie.

Interest and Usury. Title. Deeds. Evidence. Witness. Before Judge Bower. Decatur Superior Court, May Term, 1886. G. B. Trulock filed Ms bill against W. E. Baggett and Ms wife, Martha J. Baggett, alleging, in brief, as follows: W. E. Baggett purchased from one Harrell ten acres of land, described as being in lot number 30 of the 19th district of Decatur county. The line of the lot sold was described as a line which had been long recognized as a boundary between lots 30 and 29.

<p>Debtor and Creditor. Garnishment. Contracts. Practice in Supreme Court. Before Judge Brown. Milton Superior Court. February Term, 1886.</p> <p>Copeland obtained a judgment against Curtis m a justice’s court and garnished Martin, who answered not indebted, and the plaintiff traversed the answer. The case was appealed to a jury in the justice’s court, and on the trial, the evidence for the plaintiff was, in brief, as follows: .In 1884, Curtis and Smith rented land together from Martin. They went into the contract together, but the interest of each severally was to be bound to Martin until he was paid for the supplies furnished by him. He purchased for them certain supplies at stores named. In the spring or early summer, defendant and Smith transferred their trade to Copeland. Martin gave no written order to Copeland, but it was all understood that the tenants had moved their trade. This trading with Copeland was continued until about September 28, when defendant and Smith went to Martin and proposed to sell out their interest in the crop to him if he would assume their indebtedness at the various stores, including what was due to Copeland. After inquiring as to the indebtedness, Martin stated that there were some things which had been purchased from Copeland for which he would not pay, but agreed to pay $48.86 for the defendant. This he did not pay, and Copeland, having obtained a judgment for that amount against Curtis, garnished Martin.</p> <p>The jury found in favor of the plaintiff against the garnishee, who carried the case to the superior court by certiorari. The presiding judge sustained the verdict and judgment below, and the garnishee excepted.</p>

Railroads. Damages. Negligence. Contracts. Evidence. Words and Phrases. Charge of Court. Before Judge Bower. Decatur Superior Court. May Term, 1886. Mary A. Collins brought suit against the Savannah, Florida and Western Railway Company to recover for a bundle of bed-clothes and wearing apparel, alleged to have been shipped by plaintiff, through her agent, for transportation from Bainbridge, Georgia, to Cedar Keys, Florida, and lost en route.

Principal and Agent. Stock and Stockholders. Fraud. Equity. Before Judge Roney. Richmond Superior Court. April Term, 1886. This case arose from a bill filed by Christine Bohr against the Georgia Railroad and Banking Company et al. and cross-bills filed by the defendants. The pleadings will be found reported in 68 Ga. 66.

Garnishment. Wages. Laborers. Before Judge Roney. Richmond Superior Court. April Term, 1886. On February 10,1886, Miller & Bussey took out garnishment process in a justice’s court on a judgment against Edward C. Dugas for $23.43, and served the Georgia Railroad Company, which answered that it owed him $70.00. Dugas filed a petition to have the money paid to him, on the ground that it was daily wages earned as a conductor on the trains of the company.

Practice in Superior Court. Costs. Practice in Supreme Court. Before Judge -Fort. Stewart Superior Court. April Term, 1886. An execution based upon the foreclosure of a chattel mortgage in favor of Hatcher & Wilkerson against G. L. Sims was levied on two mules and about forty bushels of corn.

Husband and Wife. Railroads. Damages. Negligence. Nonsuit. Charge of Court. Homicide. Before Judge Fort. Macon Superior Court. May Term, 1886. Lucy A. Rouse brought suit against the Central Railroad and Ranking Company to recover $20,000, alleging, iii brief, as follows: She is the widow of A. J. Rouse. On July 13,1884, her husband was in life and in good health and vigor, being thirty-four years of age.

Principal and Agent. Corporations. Education. Contracts. . Before Judge Harden. City Court of Savannah. July Term, 1886. John H. Estill brought suit against the Georgia Military Academy on an open account for printing amounting to $383. The defendant pleaded the generalissue.

Railroads. Damages. Negligence. ' Contracts. Practice in Superior Court. Before Judge Harden. City Court of Savannah. July Term, 1886. . . To-the report contained in the decision, it is necessary to add only that the testimony for the plaintiff showed, in brief, as follows: They bought a still-worm from McMillan Bros., of Savannah, and directed it to be shipped to Lumber City, with freight to be .collected at destination, which was done.

<p>1. Though an arrest without warrant be justifiable, yet to detain the prisoner longer than a reasonable time for suing out a warrant, then to handcuff him, carry him out of the county, and there incarcerate him for days, under no warrant whatever, is false imprisonment, if not kidnapping, and a finding by the j ury of twenty-five dollars damages is no compensation for the injury.</p> <p>2. The case, in any view of it, not being one for nominal damages only, it was error to suggest to the jury that a finding of one cent was legally possible under the declaration.</p>

Judgments. Statute of Limitations. Before Judge Boynton. Monroe Superior Court. August Term, 1886. On December 31,1877, afi-fa. in favor of Thomas Dewberry against Joseph R. Banks, principal, and William B. Davis, security, was levied on certain property as the property of Davis, who interposed an affidavit of illegality on several grounds, all of which, the court states in his judgment, were dismissed on demurrer or withdrawn, except one.

Mortgages. Interest and Usury. Practice in Superior Court. Before Judge Lumpkin. Glascock Superior Court. February Term, 1886. Eli Harris proceeded to foreclose a chattel mortgage against Shirley, administrator of Usry, and another. The mortgage was originally for $550, but had two credits upon it.

Damages.' Pleadings. Before Judge Carswell. Washington Superior Court. March Term, 1886. R. F. Garrett brought his action to recover $640 damages from Stephen Hitchcock.

Railroads. Damages. Negligence. Master and Servant. Evidence. Before S. H. Hardeman, Esq., Judge pro hac vice. Clarke Superior Court. April Term, 1886. Robert L. Bryans brought spit against the Georgia Railroad and Banking Company to recover $6,000 damages for the crushing of his right thumb while engaged in coupling cars for the company.

<p>1. Ordinarily an attachment -which has been levied by service of summons of garnishment can be executed by another levy or by another service of garnishment. Where a summons of garnishment issued under an attachment has been served, and upon the merits of the answer of the garnishee he is discharged, such discharge is a judgment on the issue of indebtedness of the garnishee to the defendant in attachment, and cannot be opened, except as other judgments may be opened, for some legal reason; but if the garnishee be discharged on a mere technical point, he may be Served again.</p> <p>(a.) Whether the discharge of the garnishee in this case was a judgment after issue and trial on the truth of the garnishee’s answer, or rested on a technical objection, is not clear, but can be better determined on a fuller answer to the certiorari by the justice of 'the peace before whom the trial was had.</p> <p>2. Where the entry of service of the garnishment stated that service had been made on E. W. M., and E. W. M., Jr., was, in fact, the garnishee, the entry could be amended so as to conform to the fact.</p> <p>3. If a good traverse and answer formed an issue, it does not appear liow the garnishee was in default; but this can be better determined under the facts on a fuller answer of the justice.</p>

<p>Railroads. Damages. Negligence. Witness. Presumptions. Yerdict. Before Judge Bower. Decatur ¡Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>

<p>Husband and Wife. Estates. Consideration. Prescription. Parent and Child. Before Judge Mershon. Liberty Superior Court. May Term, 1886</p> <p>Reported in the decision.</p>

<p>1. An accusation was made in the city court of Atlanta against the defendant for simple larceny. Before the trial was entered on, the prosecuting attorney asked the counsel for the accused if they would agree that the accusation should be so amended as to charge the offence to be that of larceny from the house, and this was agreed to in open court, the accused being present. After the trial had proceeded to the extent of swearing the jury, the prosecuting attorney discovered that the accusation, as it had been amended, alleged that the property belonged to the accused instead of the prosecutor. Over objection of the defendant’s counsel, the court allowed an amendment to be made correcting this allegation:</p> <p>Held, that this was not error. The agreement in open court that the accusation might be changed from simple larceny to larceny from the house, embraced the right of the solicitor to make a good and perfect accusation for the latter offence; and having been made when the solicitor could have withdrawn the accusation and presented another, it was right to allow it to be consummated by the making of the amendment</p> <p>2. Although the accusation and facts of a case may make a case of burglary, yet if they also make a case of larceny from the house, the defendant may be convicted of the latter offence.</p> <p>3. The verdict is supported by the evidence.</p>

Practice in Supreme Court. Railroads. Parent and Child. Damages. Actions. Before Judge Carswell. Washington Superior Court. March Term, 1886. Cornelia Williams and other minor children of. Ann Williams, deceased, by their next friend, Edmund Scott, brought suit against the Central Railroad to recover for the homicide of their mother.

<p>Equity. Lost Papers. Jurisdiction. Yenue. Before Judge Carswell. Washington Superior Court. March Term, 18S6.</p> <p>Reported in the decision.</p>

<p>1. Where suit was brought on a written contrac't 'for an effort by the plaintiff to procure for the defendant a loan of $2,000 for five years on landed security, by the terms of which the sum of $280 was to be paid to the plaintiff if he procured the loan, or if he failed by the fault of the defendant in not securing the money loaned by a first mortgage on the land described in “ an application for a loan on real estate,” made to the plaintiff, the title to the said real estate to be good and sufficient; and where the plaintiff failed to procure him the loan, but sued on the alleged breach of the contract by the defendant in not making the mortgage when required, a plea to the effect that the plaintiff knew that the loan was to be consummated by December 1,1884, and that he agreed to negotiate it by that time, but utterly failed to obtain the money by that date, was good, and should not have been stricken on general demurrer. The entire contract was not embraced in the w'riting; parol evidence was admissible to supply the omission; and such a plea did not seek to vary the written contract by parol.</p> <p>(a ) Besides, there was written evidence that the loan was to be consummated and the money paid to the defendant by December 1, 1884, resulting from the fact that the plaintiff tendered to the defendant for signature a mortgage and notes due December 1, 1889, with coupon notes falling due within the five years from December 1, 1884.</p> <p>2. Where such a contract contained the following clauses: “But if he fails to negotiate said loan without fault of mine or any defect in my title, then he is to recover no compensation at all, . . . and with the further understanding that I am to accept said loan and secure it as stipulated, and if I do not, for any reason, secure and accept said loan, then I agree to pay said H. T. Mathews (the plaintiff) the sum specified below, just as though I had accepted said loan;” and where there was no stipulation in the contract for a waiver of homestead and exemption, — a plea which alleged that, after December 1,1884, the plaintiff applied to the defendant to execute and deliver a mortgage for the purpose of obtaining the money, but that the plaintiff did not then offer to pay the money upon the delivery of the mortgage deed, and that the mortgage was not such as was contemplated in the contract, but contained a covenant waiving all benefit of homestead and exemption laws of this State, not only as to the property mortgaged, but as to all other property owned by the defendant, was a good plea, and should not have been stricken on general demurrer.</p> <p>(a.) This would not be affected by an agreement in the contract to “ authorize, ratify and confirm every act and thing the said H. T. Mathews may do in negotiating said loan.” Such astipulation would refer to every act and thing touching the parcels of land to be mortgaged to secure the loan.</p> <p>3. In a suit by the plaintiff to enforce such an executory contract, a plea which alleged that, by the contract made for the loan by the plaintiff, the entire sum to be paid him for his services was usurious, because the plaintiff was really the agent of the company alone from which he proposed to borrow the money, and that every cent of it went or was to go to the company over and above all legal interest, and only a part of it would have been paid to the plaintiff by said company as compensation for his services in lending money for said company, was a good plea, and should not have been stricken on demurrer. This plea attacked the legality of the contract, and did not require the particularity of a plea setting off usury or setting up usurious payment.</p>

<p>Suit was brought in a justice’s court on an open account for goods sold and delivered. The defendant pleaded that the account was settled by giving his promissory note, which was by agreement taken in satisfaction of the account; that the place of payment specified in the note was altered by the plaintiffs intentionally and to defraud defendant; and that thereby not only the note but the whole contract became void. It was admitted that plaintiffs made the alteration in the note for their own convenience, but it was denied that it was done fraudulently or was material. It appeared in evidence that plaintiffs wrote defendant that the note was in the bank where it was deposited; that he replied, promising to pay it if it were sent to the place where it was originally made payable, which was done; and that he then refused payment solely for the reason that it had been altered. It was admitted that the goods had never been paid for. There was no conflict as to the fact of the alteration or the facts from which fraud was sought to be inferred, and no proof of any express agreement that the note should be in payment of the account. From a verdict in favor of the defendant a certiorari was taken. The judge sustained it and ordered a judgment for the plaintiffs for the amount of the account:</p> <p>Held, that this was not error.</p> <p>(a.) Generally bank checks and promissory notes are not to be deemed payment until they are themselves paid.</p> <p>(6.) There being no controversy as to the facts, the materiality of the alteration and the intention with which it was done became questions of law to be decided by the court.</p> <p>(c.) Protest and notice are not necessary to fix the liability of the maker of a promissory note, even though payable on its face at a bank or banker’s office, or when discounted or left for collection there. AKter, where an endorser, or one not primarily liable, is to be charged.</p>

<p>Homestead. Practice m Superior Court. Claim. Before Judge Carswell. Washington Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>The rule that the first grant of a new trial, where the evidence is conflicting, will not be reversed, unless the discretion of the presiding judge was abused, applies as well to the general grant of a new trial on certiorari from a lower court as on a motion for new trial.</p> <p>(a.) There was no request for specific instructions to be given to the justice, and no necessity for any appears. The rehearing will • be a de novo investigation, as if no trial had been had.</p>

Criminal Law. Evidence. Practice in Supreme Court. Charge of Court. Before Judge Roney. Richmond Superior Court. April Term, 1886. Preston Valentine was indicted for the murder of William Vail, and on his trial was found guilty.

<p>In 1878, a bill was pending in Richmond superior court against several defendants, one a non-resident, the others residents of the State. The non-resident filed a petition to remove the cause as to him to the circuit court of the United States, and this application was granted, and no exception was taken to this ruling. A motion to remand the case was made in the circuit court, and there it was urged that the removal was made under the act of congress of 1866, and that that act had been repealed by the act of 1S75. This motion was refused in 1877, and no exception thereto was taken. In 1883, the case was dismissed from the docket of the circuit.court by the presiding judge for want of prosecution. In 1885, a motion was made to reinstate it and remand it to the State court. Later in the same year, an application was made to the superior court of Richmond county to declare the removal null and void, and to require the case to proceed in the State court, on the ground that the act of 1866 had been repealed by the act of 1875, and that there was no jurisdiction in -the State court to grant the removal, or in the circuit court to accept or act upon it:</p> <p>Held, that the judgments of the superior court and of the circuit court of the United States, although they may have been erroneous, were not void, and no exception to them having been taken, they are binding on the parties.</p> <p>(a.) If the present motion could have been made at all, it should have been made within three years from the time the judgment was rendered, and is now too late.</p>

<p>Practice in Supreme Court. Presumptions. Before Judge Roney. Burke Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>

<p>Where suit was brought against a railroad company for damages done to certain machinery, and the evidence as to the amount of the damages was conflicting, that on behalf of the plaintiff sustaining the finding of the jury, there was no error in refusing to grant a new trial on the ground that the verdict was contrary to law and without evidence to support it.</p>

<p>This court lias frequently held that, inasmuch as appeals have been abolishethand the grant of a new trial is, in its result, in the nature of an appeal, it would not be scrutinized closely for errors, and that, unless the verdict was demanded by the evidence, this court would not interfere with the discretion of the court below in making such grant.</p>

<p>Where it is sought to procession lands under sections 2384, 2385, 2386 of the code, it is necessary to survey and mark the entire tract of land belonging to and possessed by the owner; and it is not sufficient to survey and mark one lot alone, held by grant from the State, it being the lot where the line is uncertain or disputed.</p>

<p>Where, on a hill for injunction, the parties are at issue as to the facts involved, the chancellor has a discretion to grant or refuse the injunction, and this court will not control such discretion.</p>

<p>New Trial. Evidence. Before Judge Fort. Schley Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Evidence. New Trial. Before Judge Fort. Macon Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>

<p>Municipal Corporations. Tax. Title. Injunction. Notice. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Where, in a suit in a justice’s court, judgment was rendered against the defendants, and they appealed to a jury in that court, but, on the call of the case on the appeal, they were not present, it was error for the justice for that cause to dismiss the appeal.</p>

<p>New Trial. Before Judge Simmons. Houston Superior Court. April Term, 1886.</p> <p>Reported in the decision</p>

<p>Where á bill was filed, alleging that the complainant was the owner of a certain stallion of the value of $500; that she entered into a contract with the defendants, who were livery-stablemen, whereby they agreed to take the stallion and stand him, without expense to her; that they collected the proceeds from the service of the stallion, amounting to six or seven hundred dollars, and failed to account to her for any part thereof; that she also placed with them, as liverymen, one black mare of the value of $140, and a phaeton of the value of $200; that they claimed that she was indebted to them about $25C for bills for feeding the horses, and were advertising the property for sale, and declaring their intention to sell it for their claim; and therefore she prayed for injunction and the appointment of a receiver, — while the case was rather weak for the appointment of a receiver, yet as the proceeding under the bill will finally wind up all matters of controversy between the parties, and will probably prevent a multiplicity of suits, and as the chancellor required the complainant to give bond to pay the defendants any amount which they might recover against her on account of any claim due them for the feeding of the horses, this court will not interfere with his judgment appointing a receiver and granting an injunction.</p>

<p>Contracts. Title. Vendor and Purchaser. Before Judge Roney. Burke Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>

<p>Under the constitution, of this State, equity cases must be tried in the county where some defendant resides against whom substantial relief is prayed. Where a bill was filed to set asidé certain 'Sheriff’s deeds, not in the county of the residence of the grantee therein, but in the county of the residence of the sheriff, it was demurrable for want of jurisdiction.</p> <p>(a.) The ruling that where a party institutes a proceeding, in a county other than that of his residence, against a person residing in such county, the superior court thereof has jurisdiction in equity against the plaintiff in the.pending proceeding, rests on the idea that the plaintiff, by voluntarily instituting his suit, gives the superior court of the county where it is so instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted, — such proceedings in equity being ancillary to or defensive of the pending suit.</p>

<p>Charters. Corporations. Contracts. Stock and Stockholders. Practice in Superior Court. Before Judge Boynton. Walton Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

Criminal Law. Evidence. Practice in Superior Court. Before Judge Roney. Richmond Superior Court. October Term, 1885. Leven Doyle was indicted and found guilty of robbery. The evidence of the person charged to have been robbed was, in brief, as follows: He agreed to treat the defendant to a drink, and took out his pocket-book to pay for it. He had' the book in one hand and in the other a rubber strap which he took from around it.

<p>1. A testator died in 1836. The eighth item of his will was as follows : “ I give and devise to my kind, good and affectionate wife, Emily H. Tubman, the entire balance of my estate, of whatever kind or thing it may consist of. Now, in consideration of the unlimited confidence .that I have in the discretion of my good wife, Emily H. Tubman, I do hereby constitute and appoint her my sole executrix of this will, with the full hope and belief that she will use every means in her power to carry every part of this my will into complete effect.” (Then follow certain directions to his executrix for obtaining a law to manumit the slaves of the testator, and, upon condition of obtaining such a law, for the presentation of $5,000 to the University of Georgia or the trustees thereof.) “ And furthermore, I request that my executrix distribute amongst the poor of the county of Richmond two thousand dollars, and that all the real estate that I may die possessed of in the city of Augusta, after the death of my wife, be and is hereby given to the trustees of the Richmond County Academy, and their successors, the annual product to be by them appropriated to the erection of a poor-house in said county, and for the support of its inhabitants forever. Now, for the purpose of enabling my executrix to carry into full and complete effect every part of this my last will and testament according to my desires herein expressed, I do hereby authorize my executrix to make all sales and conveyances that may be necessary for the above mentioned purposes</p> <p>Held, that it was not the intention of the testator to adopt the county • poor-house, or to bestow his bounty upon it, or to confide to those having in charge the administration of the fund raised by taxation for the support of the county, the management of the property provided by him for a like purpose; but he designed the erection of a separate establishment, to be located and controlled by agents of his own selection, who were to distribute and apply the income from the fund, in their discretion, as best to effect the purpose designated.</p> <p>(a.) The judge of the city court of Richmond county, who is ex officio commissioner of roads and revenues of that county, having, in his official capacity, tendered himself as a suitable person to be appointed trustee to effectuate the wishes of the testator expressed in his will, and the chancellor, in the exercise of his discretion,, having declined the offer so made, this court will not interfere.</p> <p>2. Prior to 1854, the judge of the superior court had no power, by a proceeding in chambers, to accept the resignation of a trustee and appoint a successor.</p> <p>(a.) Under the 8th item of the testator’s will, the executrix was, during her life, the proper person to execute the trust created, and it did not devolve upon the trustees of the Academy of Richmond County and their successors until her death. Therefore there was no authority, during her lifetime, for the renunciation of the trust by them and the appointment of a successor, she not having been removed for mismanagement or abuse of the trust, and not having voluntarily resigned.</p> <p>(6.) After the death of the executrix, the trust devolved upon the persons who might be the trustees of the Richmond County Academy, and not upon the corporation of which they were trustees, and the corporation, as such, had no right to renounce the trust-</p> <p>(c.) If lapse of time can be relied on as conferring title to this character of trust, it cannot be applied here, since the city council, who make the claim, never had either actual or legal possession of the trust, and were never actually or legally engaged in looking after its affairs.</p> <p>(d.) The city council of Augusta had no right, express or implied, under the laws of the State, to accept or administer this trust.</p>

<p>Levy and Sale. Stale Demands. Executions. Payment. Pleadings. Before Judge Fort. Webster Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

Parent and Child. Bastards. Before Judge John T. Clarke. Terrell Superior Court. May Term, 1886. T. H. Nixon brought two actions of complaint in the statutory'form against John B. Perry, on open accounts for the support of the illegitimate child of the defendant, alleged to have been abandoned by him. On demurrer, the court dismissed both actions, and the plaintiff excepted.

<p>1. Where suit was brought on a note, and the defendants pleaded non est factum, and, on the trial, one of them testified several times that he did not authorize the person who signed the note to sign his name to any note made in Americus, or to any note whatever, there was no error in refusing to allow counsel to ask him, on cross-examination, questions for the purpose of showing that he authorized the person named to sign his name to notes in Americus prior to 1S83, the object of the testimony not being apparent, and counsel not stating that he expected to prove such fact by the witness.</p> <p>' If such a question was asked for the purpose of impeaching the witness, the foundation had already been sufficiently laid.</p> <p>2. No error is made to appear in refusing to allow counsel for plaintiffs, on the cross-examination of one of the defendants, to ask him what was the amountof the note due the bank of Americus, it not being made to appear that such fact was relevant to the issue on trial.</p> <p>3. Where a wdtness was sworn, and the parties had full opportunity to examine him at length, a new trial will not be granted on the ground of newly discovered evidence coming from such witness, especially where it is cumulative and impeaching in its character.</p> <p>4. A request to charge should be perfect in itself, or the court may refuse it. Therefore where, on the trial of a civil case, the court was requested to give in charge §3747 of the code in full, stating the amount of certainty required both in civil and criminal cases, there was no error in refusing to do so.</p> <p>S. Where, on the trial of a civil case, the witnesses were sworn and put under the rule, but one, of them who had been subpoenaed remained in the court-room and heard what transpired throughout the trial; and where, after the testimony had closed, the plaintiffs offered to prove by such witness facts which were contested by the defendants, there was no abuse of discretion in refusing to allow him to testify.</p>

<p>Pleadings. County Matters. Trover. Before Judge Hansell. Baker Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>

<p>[Jackson, C, J., did not preside in this case, on account of providential cause.!</p> <p>Where two parties are jointly in possession of property as croppeis, there must be such a division as will put each in possession of his part of the property in his own right, before a possessory warrant will lie in favor of one, or his legal representative on his death, against the other, or a purchaser from him, to recover any portion of the joint property.</p> <p>(a.) The justice before whom the case was originally tried having awarded the possession of the property sued for to the plaintiff, there was no error, on certiorari, in reversing such judgment and awarding the possession to the defendant.</p>

Practice in Superior Court. New Trial. Before Judge Brown. Cherokee Superior Court. September Term, 1885. The bill of exceptions in this case recites that it was an action of ejectment by Reeves et al. vs. Ilopgood, in which a verdict was rendered for the defendant; and that a motion for a new trial was made and granted, and the defendant excepted. The record contains only the brief of evidence and -the order granting the new trial.

<p>]. Where a plea to the jurisdiction of a court is filed, it must show jurisdiction in another court on it face. It is not sufficient to deny the jurisdiction of that court, without specifying what court has such jurisdiction.</p> <p>2. Where a chattel mortgage was foreclosed in a justice’s court, and upon the levying of the execution issued thereunder a claim was interposed, it was properly returned to the court where the foreclosure took place and whence the execution issued.</p>

<p>Contracts. Statute of Frauds. Before Judge Boynton. Spalding .Superior Court. February Adjourned Term, 1886.</p> <p>Murray & Word sued Mrs. Mary E. Ellis in a justice’s court for $16.00 for a coffin. The case was appealed to a jury. A witness for the plaintiff testified, in brief, as follows : Corley, a negro working on the place where the defendant and her husband resided, went, in company with one Bottoms, to get defendant’s husband to stand his security for a coffin in which to bury his wife. Ellis was not at home, and defendant told them to go to town and get a cheap coffin and she would see it paid for. They went and got one for $16.</p> <p>Corley testified that defendant told Bottoms to go to town and get as cheap a coffin as he could; that the coffin was furnished on that message or order; that he carried a bill for it to the defendant, who said it was all right and she wanted him to work faithfully and pay her for it, as she had to pay the amount; that when his wife died, he told defendant that if she would not assist- him to get a coffin, he would have to get Bottoms to get it for him and work it out; and that she said he should'have it, and she was as able to get a coffin as Bottoms.</p> <p>One of the plaintiffs testified that Bottoms and Corley came to the store, bought the coffin and said the defendant would pay for it; that it was charged to her; that witness did not know her personally, but knew her as the wife of Jeff. Ellis; did not know whether she had any separate estate; knew she was a married woman and lived with her husband; would not have sold the coffin to Bottoms and Corley if they had not said defendant would pay for it; they extended credit to defendant and no one else, and never looked to any one else for pay.</p> <p>Defendant testified that Bottoms and Corley urged her to become security for the latter; that she at first refused, but finally told Bottoms that if he would buy the coffin, she would be responsible to him for $4 or $5; that she never told them to buy the coffin and charge it to her, nor that she would pay for it; that Corley did not present the bill to her, and she never knew it was charged to her until the following fall, when she was called on for the money; that sometime after the coffin was bought, Corley told her that they had to pay $16 for a coffin, but that Word (one of the plaintiffs) said Corley had an honest face and he would trust him for it, and if he could not pay him for it, he could come and work it out. As to this conversation, the defendant'was corroborated by another witness.</p> <p>The jury found for the plaintiffs. \, The defendant carried the case to the; superior court by certiorari, alleging error because the contract was only, at most, one to become security for another and was in parol, and lhat the defendant was a married woman and could not bind her estate by any contract of suretyship. The court overruled the certiorari and sustained the finding of the jury, and the defendant excepted.</p>

<p>, Officers. Governor. Elections. Quo Warranto. Before Judge Mershon. Clinch County. At Chambers, July 21,1886.</p> <p>Reported in the decision.</p>

<p>The act of 1886 (code, §3854), which rendered all persons competent to testify, except certain specified classes, expressly provided that where an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party should not be admitted to testify in his own favor. Therefore, where suit was brought against an administrator on a promissory note made by his intestate, the plaintiffs were not competent witnesses, although offered to disprove the testimony of a witness for the defendant to the effect that he saw a horse delivered to one of the plaintiffs, in the lifetime of the intestate, in payment of the note.</p>

<p>Liens. Mortgages. Judgments. Equity. Before Judge Boynton. Lincoln Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>An affidavit of illegality to an execution was filed. It was amended, but the amendment was withdrawn, and on November 12th, 1885, it was dismissed. At the succeeding February term of court, a second affidavit of illegality was filed, 'which failed to allege that its grounds did not exist, or were unknown, or might not have been known in the exercise of reasonable diligence at the time of filing the first. This was dismissed on demurrer. On the next day, without any leave previously obtained, the defendant filed in the court an amendment thereto, in which he alleged that the facts on which this affidavit rested were unknown to him when he filed his first affidavit and the amendment thereto, and came to his knowledge only a few days previous to the 5th day of December, 1885:</p> <p>Held, that if this amendment had been offered in time, it failed to comply with the rule requiring of the defendant diligence in ascertaining the facts, and 'was demurrable.</p> <p>(a.) The affidavits are utterly destitute of merit, and ten percent, damages are awarded for prosecuting this writ of error for delay only.</p>

<p>1. Since the act of February 25,1876, a justice of the peace is subject to be ruled in the superior court for refusing or neglecting to collect or pay over money which he may have collected or received in his official capacity.</p> <p>2. In all interpretations of acts of the legislature, the code requires that the courts shall look diligently for the intention of the general assembly, keeping in view at all times the old law, the evil and the remedy, that grammatical errors shall not vitiate, and that a transposition of. words and clauses may be resorted to when the sentence is without meaning as it stands.</p> <p>3. Whether it is constitutional for one part of the judicial system of the State to be ruled and punished by another branch thereof, is not decided, as the question was not made in this court.</p> <p>4. A rule against an officer for failure to collect money is a suit or action, and must contain every allegation necessary to show the right of the plaintiff to recover. Therefore, where a rule was moved against a justice of the peace, the plaintiff alleging merely that the justice had failed and refused to enter up a judgment and issue execution upon a claim placed in his hands, although the justice answered denying these facts, and upon a traverse the issue was found in favor of the plaintiffs, there was no error in refusing to make the rule absolute, there being no allegation to show any loss or damage to the plaintiffs by reason of the failure, refusal or neglect of the magistrate.</p>

Wills. Estates. Remainders. Construction. Before Judge Lumpkin. Elbert Superior Court. March Term, 1886. Hudgens, executor of Clement Wilkins, filed his bill, praying for construction of the first item of his testator’s will and for direction as to division of his testator’s estate under it. The will is sufficiently set out in the decision. At the time of his death, the testator had four sons living.

<p>Practice in Superior Court. Witness. Charge of Court. Attorney and Client. Notice. Torts. Fraud. Before Judge Fain. Gordon Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. Where a case involving the accounts of a guardian and the liabilities of two sets of sureties on his bonds, was referred to an auditor, who made a report disallowing certain credits claimed by the guardian in his returns for board of his wards, referring to such returns in the report, there was no error in admitting such returns, and considering them to explain the auditor’s report, which otherwise would be doubtful of comprehension, although there were no exceptions to the report.</p> <p>2. Where a guardian was appointed and gave bond, and subsequently one of the sureties, upon application, was released and discharged, and the guardian was required to give a new surety, which he did, on a subsequent proceeding by bill in equity, on behalf of the wards, to recover from all the sureties for a devastavit of the guardian, the liability of the discharged surety and the second surety was not joint but. several, both being primarily liable to the wards and, as between themselves, the last surety-being first bound. Therefore the decree should have been rendered in favor of the ward against the second surety for the whole liability of theguardian, and against the legal representative of the first surety (he being dead) for the liability which accrued while he was surety and before his discharge; and the rights and liabilities of the sureties between themselves was a matter to be settled subsequently between them.</p>

New Trial. Before Judge Brown. Polk Superior Court. February Term, 1886. J. I. Hiett brought suit against the Cherokee Railroad Company for damages, alleging that the defendant had, by the negligent running of its train, struck and killed a mare belonging to the plaintiff, worth $225; that the animal had recently dropped a colt; that additional care and trouble were required in attempting to raise the colt without its mother; and that from her loss it died.

<p>New Trial. Witness. Verdict. Practice in Supreme Court. Before Judge Branham. Polk Superior Court. February Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

Landlord and Tenant. Bonds. Practice in Superior Court. Before Judge Branham. Haralson Superior Court. January Term, 1886. On November 16, 1883, C. A. Perryman, on behalf of himself and J. Williams, made affidavit to obtain a warrant to dispossess I. S. Williams as a tenant holding over beyond his term.

<p>New Trial. Amendment. Before Judge Branham. Floyd Superior Court. March Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

Statute of Limitations. Contracts. Municipal Corporations. Money. Practice in Superior Court. Before Judge Branham. Floyd Superior Court. September Adjourned Term, 1885. To the report contained in the decision, it is necessary to add only that on the trial in the superior court, a verdict was rendered for the defendant, and the plaintiff moved for a new trial, on the following among other grounds: (1.) Because the court directed the jury to find a verdict for the defendant.

<p>Contracts. Evidence. Railroads. Damages. Negligence. Venue. Jurisdiction. Interrogatories. Practice in Superior Court. Jury and Jurors. ' Before Judge Willis. Talbot Superior Court. March Term, 1886.</p> <p>W. A. Gamble brought suit against the Central Railroad and Banking Company of Georgia to recover for a personal injury alleged to have been sustained by him in Talbot county, by reason of the negligent running of a train on the Southwestern Railroad. In one count, the Central Railroad was alleged to be a lessee of the Southwestern Railroad; in another, it was alleged that the former was in possession of the latter, and controlled and operated it.</p> <p>On the trial, the evidence for the plaintiff showed that he was a passenger on the train running on the Southwestern Railroad; that between Bostick and Geneva, while the train was running at a speed of thirty or forty miles an hour, and passing round a curve, it ran off the track, turned on its side, and caused a serious and permanent injury to the plaintiff; and that it was behind schedule time when it left the last station. It tended to show also, that the Southwestern Railroad was controlled and used by the Central Railroad; that the employés of the train also were under the control of the Central Railroad, and that this road was defending the suit, paying expenses of witnesses, etc. In the record appears an agreement between counsel to the effect that the copy of the lease of the Southwestern to the Central Railroad, as recorded in Talbot county, might be used in evidence by either party.</p> <p>The evidence for the defendant was to the effect that the train was not running at an unusual or unsafe speed when the accident occurred; and there was much evidence to show that tne plaintiff did not sustain the injuries testified to by him, and if injured at all, it was only slightly so.</p> <p>The jury found for the plaintiff $4,000. The defendant moved for a new trial, on the following among other grounds:</p> <p>(1.) Because the verdict was contrary to law, evidence and the charge of the court.</p> <p>(2.) Because the court admitted depositions of Dr. C. M. Pope, which were offered to impeach a witness. This evidence had been read in a previous trial of the case, the defendant not knowing then of the ground of objection, which was that the depositions were taken while the plaintiff' was present.</p> <p>(3.) Because the court ruled that R. H. Turner was incompetent as a juror. [Nothing appears in the record as to the ruling or the evidence on which it was based.]</p> <p>(4.) Because the evidence failed to show that the injury or damage to the plaintiff occurred in Talbot county.</p> <p>(5.) Because there was no evidence proving or tending to prove that the defendant was the lessee of the Southwestern Railroad.</p> <p>The motion was overruled, and the defendant excepted.</p>

<p>Mortgages. Levy and Sale. Deeds. Title. Evidence. Verdict. Before Judge Mershon. Ware Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>New Trial. Claim. Attorney and Client. Title. Before Judge Adams. Glynn Superior Court. May Term, 1886. •</p> <p>Reported in the decision.</p>

<p>Criminal Law. Confessions. Charge of Court. Verdict. Before Judge Mershon. Ware Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

Certiorari. Service. Record. Before Judge Mersiion. Appling Superior Court. March Term, 1886. McAlister was convicted in the county court of Appling of larceny. He petitioned for a writ of certiorari. The case came' on to be heard on March 11th.

Practice in Superior Court. Jurisdiction. Equity. Divorce. Husband and Wife. Before Judge Eain. Bartow Superior Court. January Term, 1886. On November 11,1884, Mary A. Schooler filed her petition, addressed to the. superior court of Bartow county, alleging, in brief, as follows: On July 18, 1861, she was married to James B. Schooler, and they have had nine children born to them, of whom six are still living. She has in every way demeaned herself dutifully.

<p>1. A mortgagee foreclosed his mortgage, and to the levy thereunder a claim was interposed. It appeared that the mortgagor held title under a sheriff’s sale against his father-in-law, the judgment hav- ■ ing been obtained and levy made prior to the latter’s death, and the sale having taken place thereafter:</p> <p>Held, that the record of a will made by the former owner of the land, devising it to his wife for life, with a remainder to one of her sons, did not operate as notice to the mortgagee of any fraudulent conduct on the part of the mortgagor in procuring title to the land in order to defeat the will.</p> <p>2. The mortgagee occupied the postion of a bona fide purchaser without notice; and will be protected, although there may have been fraud on the part of the mortgagor.</p>

Contracts. Futures. Principal and Agent. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886. C. I. Brown brought suit against Clarke, Harrison & Co., alleging that he had placed in their hands money for the purpose of handling grain for him; that their books showed that they had in hand $724.90 belonging to him; and that he had demanded it, but payment had been refused.

<p>New Trial. Practice in Superior Court. Before Judge Port. Lee Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>The corporate limits of the city of Borne extended to the further banks of a river, and the authorities of Floyd county built a bridge across the river, connecting a street of the city with its continuation beyond the river, and placed the bridge under the control and management of the municipal authorities, who took charge of it and engaged to keep it in repair, but stipulated that, in case of its destruction by flood or from any other cause, they should not be bound to rebuild it. Under the power contained in its charter, and with the consent of the corporate authorities both of the county of Floyd and the city of Borne, a street railroad company constructed its tracks across the bridge and ran its cars backwards and forwards over it until the bridge was washed away by a flood. The county replaced the old bridge by a new structure upon the same site. The company set about laying its tracks over this new bridge, but the county authorities objected, unless the company would agree topay for the privilege of using the bridge, and upon refusal to do so, filed a bSl to enjoin the use of it until the county should be compensated therefor:</p> <p>Held, that the injunction was properly refused.</p> <p>(a.) The bridge, as originally constructed and as now constructed, is wholly within the limits of the city of Rome. The bridge forms a continuation of the street of the city across the river, and is a part of such street.</p> <p>(&.) A distinction between a street and a highway in respect to such use is not tenable.</p> <p>(c.) A railroad operated by horses on a public highway is not an appropriation of that highway to a different use.</p> <p>(d.) The legislature, unless restricted by the State constitution, may, even without the consent of the municipality, and without allowing it compensation, authorize railroads to be laid in its highways, but the statute may require the consent of the municipality.</p> <p>(e.) Where the consent of the county authorities to the use of the bridge had been given, and the condition on which it was accorded was accepted and acted on by the company, it became a binding contract until the,license was revoked by the only authority having power to revoke it.</p> <p>(/.) Where any part of a public street or highway is washed out or otherwise destroyed by any means, and the damage is repaired by a new structure upon the portion thus destroyed or rendered unfit for use, this does not give the county, a right to exact additional compensation from a railroad company, which, previously to the injury, used the street or public highway with the assent of the municipality, where the railroad company proposes to make the same use of the street or highway after it has been repaired.</p> <p>(</.) The act of October 7,1885, did not affect the right of the railroad company to the use of the bridge, which had previously accrued. That act was not intended to restrict the company’s franchise, but to extend it upon the conditions named therein.</p>

<p>1. Although an attorney at law may have previously represented a certain firm in other business, yet where, upon the giving of a mortgage to such firm, he acted, by express agreement of the parties, as the attorney of both, in the preparation of that instrument and in reducing to writing the contract which had been agreed upon between them, he was not thereby disqualified from attesting the mortgage, and his attestation as a notary was v.alid and entitled the instrument to be recorded. Nor did the fact that he was subsequently employed by the mortgagees to foreclose the mortgage and collect the debt, relate back and affect the validity of his attestation.</p> <p>2. Where a mortgage, after describing specifically the fixtures and furniture of a bar, described the stock generally as consisting of articles of a certain kind, without any specification as to quantity, quality or value, and all of the fixtures, furniture and stock were stated as then being in the mortgagor’s bar-room, though, in fact, none of these things were in the bar-room, but they were either in the railroad depot or en route to that place, and m two or three days afterwards were placed in the bar-room, such a mistake in description could be corrected on a proceeding to distribute money arising from the sale of the fixtures, furniture and stock, as against a subsequent judgment creditor, it appearing that it was the agreement between the mortgagor and mortgagees that he should execute to them a mortgage, not only on his stock of goods in bulk, but upon other goods purchased from time to time to keep it up, as well as upon the fixtures and furniture.</p> <p>(a.) The goods might bo identified as those covered by the mortgage on a proceeding to distribute money, and the slight error could be corrected without a resort to a court of equity.</p> <p>(5.) The description was sufficiently specific to cover a stock of goods in bulk, but changing in specifics.</p> <p>(c.) Whether or not parties who made no exception and assigned no error in the decisions of the court below, but were brought to this courts as defendants in error, could, by motion here, change their position to plaintiffs in error, it is unnecessary to decide. It was sufficient that their counsel were heard'in aid of exceptions taken by the plaintiff in error.</p>

<p>Fraud. Corporations. Stock and Stockholders. Debtor and Creditor. Evidence. Before Judge Branham. Floyd Superior Court. March Adjourned Term, 1886.</p> <p>The following is added to the report contained in the decision: This bill was originally brought by Samuel Morgan against Brower. The Bank of North America and F. A. Laidley & Co. were made parties complainant, alleging that they were creditors of the bank. The complainants claimed that Brower had rendered himself liable to them. They prayed that he be required to account for all the property received by him from the bank, and decreed to be liable for the value thereof.</p> <p>The jury found for the defendant. The complainants moved for a new trial on twenty-two grounds. It is not necessary to set out all of them, many being similar in character. The following, together with the note appended thereto by the court, will show the points made:</p> <p>(3.) Because, the court allowed A. T. II. Brower to testify as follows: “Col. Samuel said that he could get a charter; but further said, as this would be of no further use to me, as I was going out of the business, that he would like for me to transfer it to him. I told him I didn’t know Avhether I could do so withoiit liability to me. He represented to me that he Aras going to do a large business; Avould bring in stronger men and do a larger business than we had done......I told him I would submit it to my attorney in the matter, Col. Alexander, and if he said it could be done without liability to me, I would then do it as a favor, no consideration being asked.” — The complainants objected to this testimony on the ground that it was hearsay, irrelevant to the issue and prior to the Avritten contract between the parties.</p> <p>(9.) Because the court allowed C. G. Samuel to testify as follows : “ I did negotiate a trade Avilh Capt. Brower and purchased from him the Bank of Rome building for Messrs. Frost & Panchen and myself. I told Capt. Brower^ before the trade was executed by the delivery of title, but after the trade had been verbally agreed on as to price and terms, that I had agreed to join Messrs. Frost and. Panchen in their banking business if they could get a charter to Avork under, and that I had a friend, Avho had means, that Avould take stock in a bank with a charter to work under, but would not in a private bank, and that Mr. Panchen requested me to know of him if he had any objections to our company’s organizing under his charter. He replied he had no further use for the charter — did not consider it of any value, and as Ave had bought the building,if he could let us have the charter Avithout incurring any responsibility, we could have it. After consulting his attorney, he met me and remarked his attorney said he could let us have the charter without incurring any responsibility, provided he had no interest or connection whatever in the new organization; he further remarked, as you know, I am disgusted with banking in Rome; I am not likely to have any interest in another. He further said, my attorney will draw up such paper to make the transfer of the charter as is required to protect me, and then I will make you a present of it. He said he would not sell it.” — Complainants objected to this evidence on the ground that it was hearsay, irrelevant, immaterial and in contradiction of the written contracts afterwards entered into, and the court overruled the objections and admitted the evidence.</p> <p>(10.) Because the court allowed T. W. Alexander to testify as follows: “ He (Brower) told me that Samuel wanted the charter and of his willingness to let him have it if he could do so without incurring any risk. I told him that he could do it; and for the purpose of transferring the charter, I suggested the plan and he adopted the plan of transferring the shares of the stock. It was not intended to transfer anything to them except the bank building and a few articles of office furniture, perhaps, mentioned in this paper. I never suspected that Brower or Samiiel was seeking to conceal anything from the public, but the entire transaction, as it appeared to me, was honestly, fairly and openly conducted. There was nothing concealed about it; everything was put in Avriting and that notice put in the paper.” — Same objection as stated in preceding ground.</p> <p>(11.) Because the court charged the jury thus: “ Among other questions for your decision will be, what was the contract between Frost, Samuel & Co. and the defendant, Brower?” — Complainants insist that, inasmuch as all the contracts between the parties were in writing, it was error to leave it to the jury to decide what the contract Avas, and that it was the duty of the court to construe the contract and writings.</p> <p>(12.) Because the court, in charging the jury, said: “ It is not controverted that Brower sold them the bank building at $7,600.00.” — Complainants say this charge was against the evidence, and was a declaration of what had been proved, in the opinion of the court.</p> <p>(13.) Because the court stated to the jury in the charge: “Nor is it controverted that Brower, on the 20th of February, 1S79, transferred all the stock of the bank, 1,000 shares, to them (Frost, Samuel & Co.).” — Complainants did contend that 293 shares had been transferred on the 1st of February, 1879, and did insist on that fact as a badge of fraud.</p> <p>. (14.) Because the court in charging the jury, said to them: “ The transfer of the stock reads as follows: ‘ For value received I hereby sell, transfer and assign to Frost, Samuel & Co. --shares of stock within mentioned, and authorize-to make the necessary transfer on the books of the bank.</p> <p>“ ‘Witness my hand and seal this 20th day of February, 1879.</p> <p>A. Thew H. Brower,</p> <p>“ ‘Witnessed by D. Adams. President.’</p> <p>“ This endorsement stands upon the five certificates of stock held by the defendant, Brower, aggregating 1,000 shares, or all of the bank’s .stock.” — Complainants insist that the court was mistaken in the above charge.</p> <p>(15.) Because the court charged the jury thus: “The written papers, by their terms, make a sale and transfer of the stock by Brower to Frost, Samuel & Co., ‘for value received,’ paid for in part by allowing Brower to retain the property of the bank, or by a transfer and assignment thereof to him by Frost, Samuel & Co. But you are authorized to take into consideration the oral evidence bearing on these parts of these instruments, to-wit: On the words ‘ for value received ’ in the written transfers of the stock, and on the word3 ‘ retain ’ and ‘ transfer and assign ’ in the papers signed by Frost, Samuel & Co., and all the oral evidence in connection with the written, and determine for yourselves what was the consideration of the transfer of the stock, and what was the contract añd agreement of the parties in relation to this entire transaction.” — T Complainants insist that this charge allowed the jury to consider the oral evidence and to set up a contract and agreement in contradiction of the writings, and that there was no ambiguity which was not fully explained by the writings, and that all the oral explanations offered by the parties and allowed by the court contradicted the writings.</p> <p>(22.) Because the court charged the jury thus: “ Upon the main issue in the case, you will first inquire whether the transaction between Erost, Samuel & Co. and Brower, of the 20th of February, 1879, was made by Frost, Samuel & Co. with intent to defraud their subsequent creditors or others dealing with the bank or not.. If it was not made with such intent, then you will find for the defendant.”— Complainants insist that this charge took from the jury the right to consider all the other issues in the case, and that the contracts and agreements between the defendant and Frost, Samuel & Co. were per se fraudulent, and the court should have so charged, instead of leaving it to the jury to say what the intent of one party to the transaction was.</p> <p>The court appended the following note:</p> <p>“Mr. louche objected, on the reading of Brower’s testimony, toso much of his testimony as relates to the conversation between him and Samuel. The court allowed the conversation to go to the jury to show the good faith or bad faith of that particular transaction, and with that view only, and said to the jury: 1 The jury will understand that the statements of Samuel are not allowed to go to the jury to prove the truth of what he said at that time, but for consideration by them when they are inquiring into the good faith or bad faith of the parties in that transaction. It cannot go to the jury for any other purpose, and this ruling may be considered as applying to all the conversations between Brower and Samuel.’</p> <p>“ So far as the objections made in the grounds of the motion above mentioned, were to the testimony as varying the contract, the court ruled as follows:</p> <p>“ ‘I think all the facts and circumstances that governed this transaction ought to go to the jury. The answer of Brower lays the foundation for this sort of evidence. He sets up what the transaction was; also, one of the questions in the case is that of fraud, as already stated.’</p> <p>“An additional reason for admitting part of this testimony was, to explain the consideration of the contract and what seemed to the court to be an ambiguity therein, as will appear from the charge which is of file as a part of the record, and from which it will be also seen that the court instructed the jury to ascertain what the real transaction between the parties was.</p> <p>“After stating to the jury the position of the parties from the pleading and before beginning the charge proper, the court said to counsel: ‘Gentlemen, if I should misstate any of your positions or admissions, I will thank you to correct me.’ No corrections were made. At the conclusion of the charge, the court asked: ‘ Now, gentlemen, is there anything more to be said to the jury? ’ No corrections or suggestions were made to the court by counsel for plaintiff in error in reply thereto. The motion was certified with the understanding that it should be corrected on the hearing.”</p>

<p>[Jackson, C. J., being disqualified, Judge Clarke, of the Atlanta Circuit, was appointed to preside in his stead.]</p> <p>A will contained the following items: “I devise and bequeath to Augustus P. Wetter, the husband of my granddaughter, Sarah Alberta C. T. Wetter, all of my property, both real and personal, which may remain after the payment of my just debts, to hold said property in trust for the sole and separate use of my said granddaughter, Sarah Alberta, free from the debts, liabilities and contracts of her present or any future husband, during her natural life. In further trust to convey the same, during the natural life of the said Sarah Alberta, from, time to time, to Such persons, in such portions, and on such considerations, as she may in writing request. In further trust, upon her decease, to make such disposition of said property as she may, by any writing of a testamentary character, direct. In further trust, should she die intestate, to hold such property for the benefit of such persons as may, at the time of her said decease, come under the designation of her next of kin by the statute of distributions at that time in force ip the State of Georgia:”</p> <p>Held, that, under the power contained in the will, the trustee was authorized to convey the property in fee simple, upon the written request of the granddaughter of the testatrix. By the words, “during the natural life of the said Sarah Alberta,” it was the purpose of the testatrix to fix the time during which the trustee should exercise the power of sale prescribed, and not to limit the estate which he might convey to an estate during the life of the granddaughter.</p> <p>(a.) In the interpretation of wills, the intention of the testator shall be diligently sought for, and effect given to the same so far as may be consistent with the rules of law. Each will must be construed for itself, and in large part depends upon its own terms and the peculiar circumstances surrounding the testator.</p> <p>(6.) The decision in Wetter, trustee, vs. Walker, 62 Qa. 42, in so far as it apparently conflicts with these views, is obiter dictum.</p> <p>(c.) A testator may, by his will, make any disposition of his property not inconsistent with the laws or contrary to the policy of the State.</p>

<p>Appeal. Justice Courts. Practice in Superior Court. Certiorari. Amendment. Before Judge Marshall' J. Clarke. Fulton Superior Court. March Term, 1886.</p> <p>Walker & Company sued the Singer Manufacturing Company on an account in a justice’s court and recovered judgment. The defendant appealed to a jury in that court. When the case was called on the appeal, the defendant was not present. The plaintiff moved to dismiss the appeal, which motion was granted. The defendant carried the case to the superior court by certiorari, and on the hearing moved to amend it by assigning error because the judgment of dismissal, as appeared from the answer of the magistrate, was not rendered on the day for holding court. This was refused. The court affirmed the judgment of the magistrate, and the plaintiff in certiorari excepted.</p>

<p>Where a levy was made by a marshal of 'the United States, a claim was interposed, and a forthcoming bond was given, payable to such marshal and his successors, conditioned for the forthcoming of the ■ property levied on and claimed, and where subsequently the successor of such marshal brought suit in a State court on such forthcoming bond, for the use of the plaintiffs in attachment, who were non-residents of the State, the marshal was merely a formal party, without interest in the subject-matter of the suit, the plaintiffs in attachment being the real plaintiffs in the action, and they could remove such action to the circuit court of the United States on the ground of their non-residence, although the marshal was a citizen of this State.</p> <p>(a.) The giving of a bond for the forthcoming of property in a claim case was a proceeding unknown to the common law and is peculiar to the remedies provided by the statutes of this State; and while generally an action on a contract should be brought in the name of the party in whom the legal interest is vested, yet a suit on such a bond is for the benefit of the plaintiffs infi. fa., who are the real parties plaintiff; and in this respect it differs from a bond given when an affidavit of illegality is interposed to a levy.</p>

<p>1. Where a bill in equity was filed in the superior court of Richmond county, returnable to the April term, 1885, thereof, the trial' term of such case was the October term, 1885; and where that term was adjourned to January, 1886, and finally adjourned on . February 20, 1886, the adjourned term was but a continuation of the regular term; and a petition to remove the case to the circuit' court of the United States, filed on February 17,1886, during the, continuation of the adjourned term, was in time.</p> <p>(a.) Where a petition for the removal of a cause from a State court to the circuit court of the United States is filed in due time, and! proper security is given, if the right of removal appears on the face of the petition and record, the power of the State court over the case ends, and all issues of fact made upon the petition must be tried in the circuit court; but the State court is at liberty to determine of itself whether, on the face of the record, a removal has been effected; and this determination is a final judgment to which exception may be taken and a writ of error had.</p> <p>2. Where the complainant in a bill in equity resides in this State, and the real defendants, the only parties in interest, are nonresidents, such defendants may remove the case to the circuit court of the United States, although there may be joined with them nominal parties defendant residing in this State.</p> <p>3. The real defendants, who are non-residents, having filed a peti- - tion to remove the cause to the circuit court of the United States, a merely nominal party defendant, joined with them in the bill, was not bound with them as a principal in the removal bond and was a competent surety therein.</p>

- Criminal Law. Liquor. License. Powers. County-Matters. Before Judge Richard H. Clark. Fulton County. At Chambers, July 24,1886. On July 23,18S6, Charles C. Thorn was arraigned before the recorder of the city of Atlanta, charged with keeping spirituous and malt liquors for illegal sale, under ordinance passed by that city prohibiting such keeping, after the taking effect of the general local option law in Fulton county after an election held for that purpose.

<p>Liquor. License. Powers. Criminal Law. Municipal Corporations. Before Judge Richard H. Clark. Fulton County. At Chambers, July 27,1886.</p> <p>Reported in the decision.</p>

<p>Elections. Ordinary. Fence. Mandamus. Before Judge Richard H. Clark. Dekalb Superior Court. March Term, 1886.</p> <p>Peyton filed his petition for mandamus requiring the ordinary of Dekalb county to declare and proclaim the result of an election, held under §§1449-1455 of the code, known as the stock-law. Attached to the petition as an exhibit was the statement or declaration of the ordinary, which is set out in the decision, and which was charged not to be a legal declaration of the result.</p> <p>The ordinary demurred to the petition; the demurrer was overruled ; and no further answer being made, a mandamus absolute was granted. The ordinary excepted.</p>

Elections. Mandamus. Liquor. Ordinary. Attachment for Contempt. Jurisdiction. Before Judge Hutch-ins. Oconee County. At Chambers, August 30,1886.

Practice in Supreme Court. Railroads. Damages. Negligence. Contracts. Before Judge Richard H. Class. Dekalb Superior Court. March Term, 1886. Olds brought suit against the Georgia Railroad to recover damages for illegally ejecting him from a train. A verdict in his favor for $1,000 was recovered. The defendant moved for a new trial, on the following among other grounds: (1.) Because the verdict was contrary to .law and evidence, and was excessive.

<p>Where, in 1875, a man applied for and obtained a homestead, alleging that he was the head of a family consisting of himself and daughter, and the property having been levied upon, he interposéd a claim thereto; and where on the trial it was shown by the claimant himself, and not controverted, that at the time he made the application and when it was allowed, his daughter had been married, and her husband had deserted her; that she was then living in Cobb county,! while the applicant lived in Dekalb county; and that in the fall of 1875, she moved to her father’s house, and remained there ever since to the time of the trial, such homestead was illegal, and a verdict in favor of the claimant was contrary to law, anda new trial should have been granted on that ground.</p>

<p>A proceeding by possessory warrant is summary and harsh and iu derogation of common law, and the statute authorizing it should be strictly construed and closely followed. Unless it clearly ap- . pears that the defendant acquired the possession in one of the modes inhibited by the act of 'the legislature, there is nothing for the proceeding to rest on. Under a possessory warrant there is no question as to the title or as to the right of possession, but the • sole question is as to the manner in which the possession has been obtained by the defendant. Therefore, where one deposited a note for a debt, and subsequently received possession of such note from the creditors for collection, giving them a receipt therefor, and where the title to the note and the balance due on the debt was in dispute, a possessory warrant was not the proper remedy to recover possession of the note. If it had been converted after its delivery, trover could be brought for it, and if necessary, bail could be required.</p> <p>(a.) This case differs from that of Meredith vs. Knott <£• Hollingsworth, 34 Ga. 222.</p>

Municipal Corporations. Streets and Sidewalks. Evidence. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886. On March 11, 1884, Mrs. Gilmer brought suit against the city of Atlanta to recover damages for a personal injury caused by falling over certain roots which projected across the sidewalk on one of the streets, and which were alleged to have been negligently left there by the city. On the trial, the jury found for the defendant.

Practice in Supreme Court. The bill of exceptions recites that the defendant read in evidence a deed from L. F. Patterson, sheriff of said county, to J. E. Donaldson to the premises in dispute, dated July 7th,1885; also a justice court fi.fa. upon which that deed is founded, in favor of J. E. Donaldson, bearer, vs. H.W. Wilson, issued from the justice’s court of the 914th district, G. M., dated September 17th, 1879, for the sum of $100.00 principal, and $53.10 interest to…

Administrators and Executors. Sales. Charge of Court. Presumptions. Taxes. Practice in Supreme Court. Evidence. Partnership. Debtor and Creditor. Before Judge Boynton. Upson Superior Court. January Term, 1886.

<p>1. The verdict is supported by the evidence and not contrary to law,</p> <p>2. If the general charge substantially covers a request to charge, the court need not repeat the charge in the language of the request, though in writing.</p> <p>3. An implied warranty of the fitness of property sold for ordinary use does not embrace defects discoverable by ordinary care. The evidence in this case was sufficient to warrant the charge to this effect.</p> <p>(a.) Neither 32 Ga. 704; 36 Id ', 648; 45 Id. 580; 47 Id. 273, nor 59 Id. 113, control this point.</p> <p>(6.) Damages for bringing the case to this court are denied.</p>

<p>1. In a prosecution for assault -with intent to rape, -where a letter from the woman alleged to have been assaulted to the defendant, written after the alleged assault, was offered in evidence to rebut the testimony of the woman, and it was shown by a witness that a letter was delivered by her to him, to be carried and given to the defendant, with instructions that no one else was to see it; that he did so deliver it; that at the time the defendant read a part of it to him; that the witness vras illiterate and could not read, but saw a blot upon a certain portion of the writing which enabled him to identify it; and that, from the signs and marks upon the letter offered in court, he was of opinion that it was the same letter handed to him by the woman to be delivered to the defendant, this was sufficient proof to carry the letter to the jury, independent of any proof that it was in the handwriting of the woman, although she denied any knowledge of or connection with the transaction. The weight of such evidence was a question for the jury.</p> <p>(a.) In the absence of direct evidence of the execution of a paper,-it is admissible to resort to proof of the handwriting of the party from whom it purports to emanate; and in that case, any wdtness is competent to testify as to his belief, who: will swear that he knows or recognizes the handwriting, but the source of his knowledge is a question for investigation and goes entirely to the weight and credit of his evidence. In this case, there was sufficient proof of execution to admit the letter in evidence, proof of handwriting being admissible either in corroboration or contradiction of the testimony concerning the letter.</p> <p>'(6.) Semble that, where two other letters, purporting to come from the same source as the first, were shown to experts, who com- . pared them with the first letter and testified that they were of the opinion that the letters were all in the same handwriting, this was sufficient to admit them in evidence.</p> <p>2. The verdict finding the defendant guilty in this case was contrary to law and the evidence.</p> <p>(a.) From the peculiar character of cases of rape and assault with intent to rape, care is to be used with regard to them. The injured female is usually a competent witness, bnt it is generally laid down that the degree of credit to be given to her evidence depends, more or less, upon the concurrence of circumstances with her testimony; for instance, if she be of good fame, if she presently discovered the offence, mado pursuit after the offender, and showed circumstances and signs of the injury, if the place where tile fact was done was remote from people, inhabitants or passengers, or if the offender fled, — these and the like are concurring evidences which give greater probability to her evidence when proved by others than herself. But if she concealed the injury for any considerable length of time after she had an opportunity to complain, if the place where the fact was supposed to be committed were near to inhabitants or places of common recourse or passage, and she made no outcry when the fact was supposed to be done, when and where it is probable that she might be heard by others, these and the like circumstances carry a strong presumption that her testimony is false or feigned.</p>

Criminal Law. Parent and Child. Charge of Court. Before Judge Van Epps.. City Court of Atlanta. March Term, 1888. Boatri ght was indicted for selling liquor to a minor, Will. Waits.

Practice in Superior Court. Charge of Court. Bailments. Hiring. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1885. Robinson brought suit against Malone, alleging, in brief, as follows: In April, 1881, the plaintiff, who was a livery-stableman, hired a horse to the defendant for the purpose of driving from Carrollton to Buchanan, a distance of twenty miles.

<p>Fraud. Insanity. Evidence. Witness. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886.</p> <p>To the report contained in the decision, the following is added in connection with the fourth and fifth divisions thereof;</p> <p>One ground of defence was, that the suit was instituted and pressed without authority of the complainant, and in support of this ground the defendant introduced in evidence the following paper;</p> <p>“ Sarah C. Jones W. H. Frizzell. No. 109. Superior Court, Spring Term, 1884. Equity. Bill for account and relief.</p> <p>“I, Sarah C. Jones, the person whose name is made to appear as complainant in the above stated case, do hereby declare that said suit was brought without my authority or consent, and after my positive and express statement to the effect that there was no cause or right of action; and I now again repeat that this suit is without my authority, and that the attorneys bringing said suit are not and never were authorized by me so to do; and I hereby repudiate every act and deed they have done in the premises. This 24th day of March, 1SS4. Sarah C. J ones.</p> <p>“Attest: John W. White; A.F. Howell; W. T. Moyers, N. P., F. Co., Ga.”</p> <p>The defendant also introduced evidence to show that this paper was read over to Mrs. Jones before she signed it, and that she stated that it was true, and also stated substantially the same.facts contained in it.</p> <p>Complainants introduced evidence to show that Mrs. Jones gave the deeds to her daughter, Mrs. Adair; that she ordered the suit brought; that she went with her son and daughter to the, office of Messrs. Bigby & Dorsey, and while she did not have- much to say, she knew that suit was to be brought- -to set- aside certain deeds. Her daughter testified ^hat her mind was not good, but that there was no doubt that it-was clear enough for her to know that she was having suit brought. It was shown also that the paper set out above was signed while Mrs. Jones was at the house of the defendant with his family, and in the absence of her children.</p> <p>At the close of the evidence, the defendant asked the court to dismiss the bill, on the ground that it was brought without the authority of Mrs. Jones and prosecuted without her consent and approval.. This was refused. He then asked that the court direct a verdict in his favor on the ground that she had stated, both before and since the suit was brought, that she had no cause of action against the defendant, that he had bought the place and paid her for it, and that he owed her nothing. This also was re-, fused, and the court charged the jury on this subject as follows:</p> <p>“ One of the defences made by the defendant is that the bill was filed without the authority of Mrs. Jones, and that therefore there should be no recovery under said bill. On this subject, I charge you that a party to a contract may plead his incapacity to make it, and this he may do either in resisting the contract when it is asserted by the other party to it, or in a bill filed for its cancellation. ' If he assents to or directs that such- a bill be filed, such assent or direction is sufficient authority for his counsel to act in the matter. If, after such a bill is filed and while it is pending, the complainant makes a written statement that it was filed without his authority and that he has no cause of action against the person sued, such a statement would be an admission against the right of complainant, and should be considered by the jury, like other evidence and in connection with the evidence,.in passing upon the right of the parties.”</p> <p>After the death of Mrs, Jones, and her children had been made parties by their guardian ad litem, the defendant proposed to testify that he had not influenced Mrs. Jones in her conduct; that he bought the property at her request and paid her $1,320, which was the full value of it; that he had expended $1,463.76 in making substantial improvements and in increasing the value of the property, and had done so in good faith, believing the property was fairly and honestly his; that he had paid taxes on it from and including 1876 amounting to $103; and that 'Mrs. Jones was, at that time, fully sane and capable of understanding and transacting business. On objection, the court held that the defendant was incompetent to' testify to these facts, but permitted him to testify as to conversations which other witnesses had stated occurred between him and them, and as to what passed between him and the children of Mrs. Jones.</p>

Municipal Corporations. Streets and Sidewalks. Railroads. Street-Railroads. Before Judge Adams. Chat-ham Superior Court. December Term, 1885. The municipal authorities of the city of Savannah passed an ordinance requiring that “each and every company or corporation operating any street-car line within the limits of the city of Savannah shall water their tracks so as to effectually keep the dust on the same laid,” and providing a penalty for its violation.

<p>1. Where it was shown that the door of a tippling-house was open on . Sunday, that the proprietor’s clerk and another were seen in the house, and that, although there was a high fence around the house, the gate also was open, a verdict of guilty of keeping open a tip-. ' pling-house on Sunday was not contrary to law and evidence.</p> <p>2. Where a defendant in a criminal case made a statement in his own behalf, it was competent to contradict this by showing conflicting statements made by him before the magistrate; nor doe.s the rule requiring a witness to have his attention called to the time and place of making such statements in order to render them admissible, apply to the defendant's statement.</p> <p>(a.) Besides, in this case, the defendant did know the time and place, and made an effort to explain his former statements.</p> <p>3. There was no error in the following charge, as to the defendant’s statement, especially in a clear case: “The defendant’s statement is not under oath; no penalty is prescribed for making a false statement; you have the right to accept the statement in preference to sworn testimony, or you have the right to reject it. A jury should not accept a statement because it is made by the defendant; they should not reject it because it is not sworn to. They should examine it, weigh it; is it reasonable, is it probable, is it consistent with the facts that seem to be proved ? ■ And after thus weighingit, give it that effect you think it ought to have.”</p> <p>4. Where neither the clerk of the accused^nor the other person seen in the house were produced as witnesses on the trial, there was no error in stating to the jury that the defendant had the poweij as fully as the State, to compel the attendance of witnesses.</p> <p>5. The law prohibits tippling-houses being kept open on Sunday. . It matters not for what purpose; the keeping the door open is the crime; and it is no excuse that it was kept open to dry the room or goods therein; and there was no error in charging to the effect that keeping the house open to dry fruit or other goods will not do, and that if it was open, the crime- was complete, no matter for what purpose it was kept open.</p> <p>(a.) This ruling does not conflict with the case of Sanders, 74 Ga. 82, or Nixon’s case, 75 Id, 862.</p> <p>6. If the proprietor of the tippling-house seeks to shield himself on the ground that the act was that of his clerk and not of himself, he must show not only that he had no knowledge of the door’s being open, but that he gave no consent thereto, express or implied.</p>

<p>Under the act of August 9, 18S1 (acts 18S0-81, p. 591), it is a criminal offence to sell or furnish intoxicating liquor in the 714th district of Carroll county, in which the town of Carrollton is located. Where a quart of whiskey was furnished to a woman in that district, this was sufficient to warrant a conviction, although the whiskey was alleged to be for the use of a sick woman who resided six miles away, whose husband had sent for it by the person receiving it, and although the defendant may have refused to sell it or receive pay for it, and may have furnished it as a gift.</p>

<p>1. If an attachment was demurrable for want of the affidavit required by law to support it, such demurrer could be made and the attachment dismissed at the first term ;■ nór does the fact that a plaintiff in attachment has all of the first term within which. to file ¿is . declaration, prevent the making and hearing of a demurrer to the attachment for want of a proper affidavit to support it at that term.</p> <p>2. Where an affidavit to obtain an attachment stated “that Heller, Hirsch & Co. are indebted to deponent in the sum of fourteen hundred and eighty-two dollars and twenty-five cents, and that said Heller, Hirsch & Co. reside out of the State,” and where the attachment issued thereon was levied and a replevy bond was given by Heller, Hirsch & Co. in that name, it was error to dismiss the attachment because the names of the partners were not set out. The object of the process was to bring the firm into court; and having accomplished that purpose, and the firm having given a replevy bond, it was too late to move to dismiss the attachment because of the failure to state the names of the firm.</p> <p>(a ) This case does not fall within the ruling in Barbour vs. Albany Lodge, 73 Go. 474.</p> <p>(6.) If the ground of the attachment, as, in this case, the residence outside of the State, were not set out and sworn to clearly, thereby making the attachment illegal and void, then a strict construction would be right and a dismissal proper; but there is no such defect in this case, but only an omission of the individual names of the partners composing the defendants’ firm.</p>

<p>Where the city of Savannah obtained an act to be passed to extend its corporate limits, and thereupon passed an ordinance to project and lay out certain streets and lanes, locating them by metes and bounds, and directing the city surveyor to locate the true line on which houses and fences should bo placed, and a person, acting upon the faith of the ordinance and presuming that the streets and lanes had been definitely laid, out, and' that the city would take such further action by condemnation of land or otherwise as would render the laying out of such streets and lanes permanent, purchased certain lots which would abut thereon and erected buildings under a building permit obtained from the city for a valuable consideration, and was notified by the city surveyor not to encroach on the streets, which caused her to leave a strip of land four feet wide by sixty-two in length, he representing that the streets and lanes were to be kept open by the city; these facts did not make it the duty of the city to carry the ordinance into effect by condemning the property included in the streets and alleys and to open them to the public, or to repeal the ordinance before such person purchased. Nor would such person have a right of action for damages against the city because it failed to make such condemnation, by reason whereof the owners of the land enclosed it with a high fence extending across two of the projected streets and rendering ingress and egress to and from her property more difficult. A declaration based on such facts'was demurrable.</p> <p>(a.) Whether a city will open a street or not is discretionary with it; and the exercise of its discretion either way gives no right to any one who may have miscalculated the final action of the city and expended money accordingly.</p>

Title. Words and Phrases; Vendor and Purchaser. Bailments. Contracts. Leases. Before Judge Adams. Liberty Superior Court. November Term, 1885.

Husband and Wife. Damages. Streets and Sidewalks. Municipal Corporations. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886. Margaret Lewis sued the city of Atlanta and alleged that she was injured while passing along Peachtree stieet; that her injuries were because of obstructions left in the street by parties who were paving it, and because the obstructions were not lighted, nor were the street • lamps lighted. The evidence need not be stated.

<p>An incomplete building, which carpenters are engaged in finishing, and where they have deposited their tools, protecting the building ■ by closing the outer doors and fastening the windows with a canvas frame, is such a place o£ business as may be the subject of burglary under code, §4386; and if such canvas frame be broken, and the house be entered and tools stolen therefrom, the crime is burglary.</p> <p>(a.) The opening of a door, though it may not be latched or fastened by bolts or locks, or the breaking of a pane of glass, or hoisting a window and effecting an entrance thereby, is a breaking within the meaning of the law.</p> <p>(6.) The defendant was found in possession of some of the tools taken from the house shortly after the burglary, and failed to show satisfactorily how he came into possession of them; nor did the fact that other tools were found with his fellow-lodger, who, upon being'accused of the burglary, ran away, acquit the defendant of participation in the crime.</p>

<p>When principals in the first and second degrees are punished' alike, no distinctions between them need be made in the indictment. The act of one is the act of all.</p> <p>(o.) In this case, the defendant having been present and aided and abe tted another in shooting a third party, and having been convicted of shooting at another, he had no ground to except thereto.</p>

Criminal Law. Murder. Malice. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886. William Malone was indicted for assault with intent to murder.

<p>Where an ordinance of a city provided, as to sales for municipal taxes, that, “where real estate is levied on shall it be the duty of the marshal to give the owner, or the tenant in possession, if the owner is unknown, a written notice of such levy five days before the sale;” and where a property-owner was a non-resident, but had a resident agent who was so known to be by the municipal officers, he having paid the taxes on the lot for several years, and hi s name being entered on the city books as the agent of the owner, the notice required by the ordinance should have been given to him.</p> <p>(a.) In sales for municipal taxes, all the requirements of the law and the ordinances of the city should be strictly complied with.</p>

<p>1. Under an accusation for obtainingcreditforgoodsbymakmgfa.se representations, the evidence for the State showed, in brief, as follows : Defendant obtained the goods, representing that he was employed by the Central Railroad Company, and time was given for payment. In fact, he was not employed by that company, but by another as good and solvent. The wages of the employés of the Central company were paid half a month in advance of those of the other company. Defendant made no statement as to when his wages would be paid, but the prosecutor testified that he knew the times of payment. The prosecutor swore that he would not have let the defendant have the goods if the latter had told him correctly which company he was working for; but it did not appear that defendant knew the impression under which the prosecutor acted. Defendant was convicted:</p> <p>Held, that the charge of the court having ignored the charge made by the accusation, and which the evidence tended to establish, if it tended to establish any crime, namely, lying to obtain credit, for error in the charge, as well as the fact that the evidence and accusation did not correspond, and that neither is sufficient to uphold the conviction, a new trial is granted.</p> <p>2. If the grounds of a motion for new trial are not correct, counsel should be required to make them so before they are verified. If the motion, which goes into and forms part of the bill of exceptions, is incorrect, it should be corrected in the manner pointed out by the statute. The practice of correcting grounds of a motion by notes generally referring to the entire charge for corrections, is bad.</p> <p>3. Under the liberal system of pleading in this State, it was proper to overrule a motion in arrest of judgment. The accusation does not set forth the offence in the terms and language of the code, yet it may be that it states it so distinctly that the jury may understand it.</p> <p>4. The exception to the charge in relation to the force and effect of the defendant’s statement, and the considerations which detract from or support it, is not well taken; it'is substantially the same as that in 71 Qa. 276, which this court approved.</p> <p>Jackson, C. J., dissenting.</p>

Fraud. Garnishment. Debtor and Creditor. Evidence. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886. On July 22,1886, the Atlanta Rubber Company brought suit by attachment for $496.41 against the Willow Brook Manufacturing Company, a foreign corporation, and caused process of garnishment to be served on the Phenix and Germania Insurance Companies.

<p>One Claiming a specific performance of .a parol contract concerning land, alleged that he had bought from his brother-in-law, who had since died. There was evidence to show that, while in life, his brother-in-law had .stated that thé Járid belonged to the complainant ; that complainant was then-in possession of the land, and put valuable improvements upon it. The- court charged the law as to the evidence necessary to establish the contract in order to. obtain a specific performance, as laid downin' Beall et al., ex’rs, vs. Claris etal., 71 Ca. 818, bútrefusecf to charge that a specific performance of a parol contract as to land will be decreed if the defendant admits the contract, but added, “that is, when both parties admit the contract, or when respondent comes in'and admits it in his answer; the executors denied it:”</p> <p>Held, that such a qualification of complainant’s request was error.</p>

<p>Railroads. Damages. Negligence. New Trial. Before Judge Adams. Effingham Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

Wills. Estates. Construction. Before Judge Boynton. Newton Superior Court. March Term, 1886. John R.-Kirkpatrick et al., as legatees under the will of J. T. B. Turner, filed a bill against John W. Turner et al., his executors, for account and settlement, and for construction of the will.

<p>Railroads. Damages. Negligence. Evidence. Parties. Tender. Before Judge Fort. Bibb Superior Court. April Term, 1886. '</p> <p>Reported in the decision.</p>

<p>Easements. Nuisance. Improvements. Evidence. Injunction. Damages. Before Judge Fort. Macon Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>